Years ago, we rarely (never?) saw a dissent from such things as denial of cert or rehearing en banc.  We have the standing majority decision, which presented a scenario that supported the holding, as well it should, but if there was any real controversy behind it, it was not to be found.  In other words, we never knew just how bad things were in a case where someone lost.

Not any more.  And thankfully so, as in the denial of rehearing by the 6th Circuit in the case of Gregory Lee Wilson.  There is no explanation for the court’s decision not to hear the case en banc, except that it failed to muster a majority of the court’s active judges.  It did, however, catch the interest of Judge Boyce F. Martin, Jr.

Judge Martin wrote a dissent from the denial, and what a dissent it is.  It’s only 7 pages, so there’s no good reason not to read it in its entirety.  You need a bit of enticement?  Here goes:

The rape and murder of Debbie Pooley was a heartbreaking and reprehensible act. But at Gregory Wilson’s murder trial, the state’s ignominy began. Of all the people involved in this case, only two have behaved in a manner worthy of the ideals of our justice system: the courageous Franklin Circuit Court judge who stayed Wilson’s execution; and Andrew Wolfson, the diligent Courier-Journal reporter who exposed the glaring deficiencies in Wilson’s trial . . .

The judiciary failed both Wilson and our legal system in this case because a judge’s unseemly conduct created a risk of bias that undermined the fairness of Wilson’s trial. Brenda Humphrey, Wilson’s co-defendant and the woman who identified him as Pooley’s killer, was having an illicit sexual affair with Judge James Gilliece, a colleague and good friend of the trial judge during Wilson’s trial . . .

Perhaps even more egregiously than the judiciary, Wilson’s defense counsel failed him and the principles of our legal system. From the very beginning of the case, Wilson’s defense was clearly a charade . . .

Is that enough to catch your interest?  What about this:

Over my more than thirty years on the bench, Wilson’s trial stands out as one of the worst examples that I have seen of the unfairness and abysmal lawyering that pervade capital trials. Although I will continue to apply the law of the Supreme Court as required by my oath, I must reiterate my belief that “the idea that the death penalty is fairly and rationally imposed in this country is a farce.”

Or this:

When a person is sentenced to death in a kangaroo court such as Wilson’s, with an illicit sexual affair taking place between a co-defendant and a colleague of the trial judge and no semblance of qualified defense counsel, it irreparably tarnishes our legal system. Until we reform this broken system, we cannot rely on it to determine life and death.

 

Of course, the aspect of this opinion that makes it astounding isn’t simply Judge Martin’s characterization of the scope and nature of the failings at trial in a capital case, but that it still wasn’t sufficient to convince a majority of the active judges on the 6th Circuit to sign on and agree to rehearing en banc.  What lofty rhetoric moved the original panel to put their stamp of approval on Wilson’s execution?

And as long as we’ve got an ineffective assistance of counsel contribution to the impending death of Wilson, let’s use the opportunity to make another point, somewhat collateral to the case.  Wilson was assigned two lawyers for trial, one a burned out drunk whose business telephone rang at “Kelly’s Keg,” and the other a rookie who had never tried a felony, no less a capital case. 

There’s no point in discussing the drunk.  There’s nothing to say that would change someone like him.  But the rookie, John Foote, apparently meant well but sorely lacked the skills needed to help.  What if Foote had a twitter account?  What if Foote followed you, and you followed Foote back?  What if he twitted endearing twits, told you what a wonderful lawyer you are and you twitted back your friendship of him as well.  He could be one of the circle of dear young lawyers who supported and comforted each other.

Would Foote’s twits, would yours, have given Gregory Lee Wilson a fair trial?  And yet you twit amongst each other as if each of you is the next coming of Clarence Darrow, filling yourselves with the fabulous lie that you’re all the most dedicated, skilled, knowledgeable young criminal defense lawyers around because you make friends over twits.

Sorry if this makes your twitting today seem a bit trivial.  It’s not like Gregory Lee Wilson’s life should matter any more to you than it does to the majority of judges on the 6th Circuit.

H/T Berman

Amongst the many folks vying for attention from blawgers, some of whom are total nutjobs (like the evangelical ministry that won’t stop sending me crap about how Obama is a Muslim communist), is the Innocence Project, a group for whom I have the highest regard.  When I receive something from the Innocence Project, I read it.

Yesterday, a couple of emails came in concerning a movie called “Conviction.”

In anticipation of Friday’s opening of Fox Searchlight’s film “Conviction” starring Hilary Swank and Sam Rockwell, I wanted to share a behind the scenes look at the real story behind the movie.  In the film, Swank portrays Betty Anne Waters in her quest to clear her brother, Kenny, who was wrongfully convicted of murder and eventually exonerated by DNA evidence with the help of the Innocence Project. 

Get the story behind the movie at our website.

The film’s real-life inspiration and heroine, Betty Anne Waters will be hosting a criminal justice blogger conference call next week where she will discuss her fight to free Kenny;  I am writing to gauge your interest and availability to join us for that.

For those of you too lazy to click on the link, here’s the trailer:

This matters to me.  I’ve been sent numerous books that chronicle wrongful convictions, whether from the death penalty perspective or the mechanics of false identification or confession.  They are deeply disturbing and depressing.  And only the most dedicated singers in the choir will ever read them.  I’m part of the choir, and I haven’t reviewed the books, as requested, because I can’t make it through them. It’s not that they aren’t worthy or well-written, but I can only bear so many stories of misery.

But a movie with Hillary Swank is an entirely different matter.  Even though it may be a dramatization of a real event, it has the power to move people, to convey the ideas and ideals that are dryly discussed amongst those of us who have fought against wrongful convictions and know the dangers of a system that others trust implicitly.

This could be huge.

Upon receiving the email, it was clear that this was the sort of thing that I wanted very much to promote.  But there was one small detail that needed to be addressed.  I hasn’t actually seen the movie.  I didn’t actually know what the message was.  It’s not that I don’t trust the Innocence Project, despite Barry Scheck’s sartorial choices, but to take up the cause by promoting this film was a personal endorsement.  How could I do this without anything more than a trailer and the Innocence Project’s say-so?

My response to the email was to request that they send me a review copy so I could see it for myself and speak about it from personal knowledge.  I haven’t received a response as yet.

The movie is opening tomorrow in big cities.  Will it capture the public’s imagination and interest, or go straight to DVD?  Does it speak to the problems that people need to learn about or devolve into some far-fetched tear-jerker that offers no applicability to the problems of the criminal justice system?  I don’t know.  I can’t say.

This isn’t to suggest that my endorsement will mean much of anything, and the movie may be a huge hit, an Academy Award winner, and game-changer for the system, regardless of what one blawger thinks.  But they did find it worth their time to send out this email to blawgers seeking support in the promotion of the movie, and thereby the cause.  Somebody must think that we can offer something, however small, to the success of this film.

I want to help.  I want to be as loud and meaningful a voice in support of something that has the potential to say something important about a critical subject of concern. It’s not enough to ask me to blindly jump on the bandwagon of the cause and promote Conviction because you ask me to.   Give me the ability to help.

Despite harping on the distinctions between reason and feeling, efforts to change, hopefully improve, the status of things begins with the former but usually ends with the latter.  Reasoned arguments for change are offered, but the decision is made by the many based on how they “feel”.  Playing their feelings, therefore, is ultimately the only game in town that matters.

The proving ground for reason versus feelings is often California, due to their ballot proposition mechanism.  Gay marriage is yucky?  Vote against it.  Don’t worry about where the money behind the advertisements comes from or what motives drive the proposition.  After all, even churches and corporations are people, entitled to express their opinion by amassing their wealth and using it in a coordinated if disingenuous fear-mongering campaign.

The latest salvo in the war on reasoned change is California’s Proposition 19, legalizing the growth, possession and use of personal use quantities of marijuana.   There have been a wealth of arguments presented in favor of the proposition, spanning the economics to the social to the legal implications of passage.

There there’s the opposition, such as Dr. Howard Samuels, a psychotherapist, at Huffington Post.

As a father of three children — Cooper 9, Greer 6, and Chase 3 — I’m faced with the dilemma of discussing with them how marijuana is as safe as aspirin when they turn 18 years old. If Proposition 19 passes, the state of California is telling me that it’s okay for my children to get loaded on drugs as often as once a week or every day and all day.

The most potent appeal to “feelings” has long been “the children,” and Samuels goes right for it in his opening sentence, including two facial errors in the same sentence.  There’s no suggestion that marijuana is “as safe as aspirin,” but rather an intoxicant, like alcohol, and usable at age 21 rather than 18, like alcohol.  Implicit is another fallacy, that simply because it’s not a crime doesn’t mean that parents either should, or would, enable their beautiful, beloved babies to get stoned all day, every day.

I am not against social drinking. For those who are not alcoholics, a glass of wine with your pasta is alright by me, but don’t tell me that you smoke pot for the taste. The only reason people smoke weed is to get loaded. By legalizing we are perpetuating a drug-oriented culture. We may as well add to “Drink responsibly … and medicate as needed…”

The establishment of reasonableness is key to acceptance of Samuel’s fears.  If he’s too hysterical, we discount his feelings, but by allowing that he’s “not against social drinking,” he’s no dogmatic temperance nut, despite his noting in the preceding paragraph that alcohol related car accidents are “the leading cause of death for young Americans.”

It’s horrifying to me to watch our nation go up in a haze of herb smoke. It’s denial that our young people are free from the self-destruction brought on by the easy access which will come from making pot legal.

And when it devolves to feelings, no longer are facts or empirically provable arguments required.  Instead, catchy phrases, like “a haze of herb smoke,” fuel the passion.  Then comes the assertions:

What’s more, medical marijuana is many times more potent and toxic than the weed bought off pot dealers.

As for street bought drugs, destroying the drug cartels is laughable. Drug king pins do not make their money off marijuana.

While a very minute segment of the population smokes a joint on the weekends a couple of times a month, the majority — the real mainstream smokers are inhaling four or five times a week and several times a day.

Some might question Samuel’s play into the common notions about marijuana, without offering anything to back up these claims.  But that’s the beauty of an appeal to “common sense,” it requires no proof.  It requires no foundation.  It’s what we all supposedly “just know” to be true, because, well, we just do.

Then comes the coup de grace, the most significant fear that lingers in the back of our heads, propagated for decades and allowed to stew, to fester, to remain there waiting for when it needs to be tapped.

Marijuana — more often than not — is a gateway drug and the danger is legalizing it will make it more acceptable, which invariably leads to trying other drugs. Believe me, a pot high for an addict who is looking to numb themselves will eventually become blase and boring and the chase will be on for some other ‘recreational’ drugs. Where does all this end?

Today pot, tomorrow our children are all heroin addicts. The gateway drug argument has been with us since Reefer Madness, and it’s not merely a possibility, but “more often than not.”  We need not concern ourselves with the accuracy of this claim, as Samuels implored us to “believe” him.  Would he lie?

As a treatment professional, I rely on the police and courts to help treat the addict/alcoholic through enforcement of laws which actually protect the abuser still in denial of their disease by forcing them to look at their issues with consequences. Once the handcuffs are ‘off’ the pot smoker, we are in for major, major trouble with our kids.

After all, he is a doctor, a “treatment professional,” and with his dear friends, the police and courts which help him to treat the denying abuser by placing him in prison for lengthy period of time.  Notice that this paragraph almost appears to offer some sort of bona fide argument, despite the fact that it fails to pass even minimal rational scrutiny?  And concludes, again, with the dire warning from the “treatment professional.”

There are valid and rational arguments to be made both for and against Proposition 19.  But the opponents have something the supporters don’t have.  The supporters can put an advertisement or post saying, “Hey man, getting high is cool and fun.”  Maybe an image of some happy stoner as the poster boy. 

The opponents can tap the “feelings” of the lazy and ignorant, those who can’t be bothered considering thoughtful reasons and instead resort to “feelings” requiring no real thought at all. Thinking can make your head hurt.  You don’t want your head to hurt, right?

Just do it for the children. 

It’s less than two miles from where I sit and type. Suffolk County, New York.  Doug Berman calls it prominent, which is likely do to the fact that it sticks out into the Atlantic Ocean.  Oh, and did I mention they’ve slid down the slippery slope of stupid?  It’s an odd feeling to be in such close proximity, raising fears that there’s something in the water and it’s drifting my way.

Suffolk County is the first in the nation (the very FIRST!) to come up with an Animal Abuse Registry.  That’s right, forget abused children or mass murderers, and go straight to Fluffy and Spot.  Via Newsday :

Under the measure passed Tuesday, a Suffolk resident older than 18 who is convicted of animal abuse would be required to file their name, address and photo with the registry and stay on the list for five years. It will be administered without cost to the county by the Society for the Prevention of Cruelty to Animals. It will be publicly available.

Those convicted of animal abuse crimes would also stay on the list for an additional five years for any subsequent conviction. The registry would only cover those convicted of abuse crimes. Those on the list would also have to pay a $50 annual fee to help fund the cost of maintaining the registry.

It’s not enough to prosecute anyone engaged in abuse, convict them and sentence them.  We need to add the scarlet letter, yet even that isn’t enough.  We need to make them pay for their own branding.  No, if they fail to pay their $50 annual fee, they aren’t punished by having their name removed from the list.  Those who fail to register and pay face a $1000 “charge” or jail.  Not criminal, of course, for that would be an unlawful sentence.  You know, civil jail and a civil “charge.”

According to aides, Democrat Republican gubernatorial quitter to Lobbyist Rich Lazio, who lost to Carl “I’m Angry, Argh” Paladino, Steve Levy, will sign the bill into law.  Why?

“There are sick individuals out there who are preying on innocent animals,” said Legis. Jon Cooper (D-Lloyd Harbor), sponsor of the bill.

Well, yeah.  That’s why it’s a crime, Jon.

Roy Gross, who heads the Suffolk County Society for the Prevention of Cruelty to Animals, said his group, which deals with over 2,000 animal abuse cases in the county per year,  believes the animal abuse registry will help to save animals.

“Most serial killers began as animal abusers,” he said. “It’s a known fact: people who hurt animals hurt people too.”

It’s always better to state those known facts than the unknown ones.  But is there a looming disaster of serial killing in Suffolk County that needs to be stopped?  Does the logical fallacy of post hoc ergo propter hoc cease at the Nassau County line?

I abhor people who abuse animals.  And that includes police officers, by the way.  But disgust at an evil act is a reason to prohibit it and punish it, not continue downstream to compound the damage of sex offenders registries by pursuing new registries.  How long will it be before there’s a registry for each of us?  You know that we all do something that someone else thinks is wrong.

Ironically, a substantial number of the animal abuse cases that arise aren’t a result of sick people who hate animals, but sick people who love them too much.  You know, the person who takes in 100 feral cats, which she can’t afford to feed.  Then animals do what nature compels of them, and we hear of the travesty of a suburban home smelling so badly of urine and feces that men in hazmat suits are called in.  Are these our future serial killers?

This trend toward registries was bad to begin with and will only get worse.  That people who are otherwise capable of walking upright are making political points off this latest bit of insanity is not merely sad, but a matter to be feared.  As otherwise normal people applaud the creation of another registry, let them consider what it means when they, their kids, their friends, find their unsmiling face online as an animal abuser.

What?  It could never happen to you?  Ever swat a fly? Step on ants?  Eat meat?  Did you think they cuddle the cute little baby lamb before they slaughter it?

Whoever came up with the idea of vanity license plates was a genius.  That people will spend good money for some of the goofiest things ever, license plates that say things like “MTHRDUK” which appear utterly meaningless to me yet strike someone else as being a worthy investment, is amazing.  And putting your preferred string of letters and/or numbers on a tag will put some needed cash in the government’s gas tank.  A win-win.

Inexplicably, the motor vehicle folks of Vermont has no issue taking the money for a license plate that read “JN36TN” from some 36 year old guy named John who came from Tennessee, but wouldn’t take it from a fellow named Shawn Byrne who had a particular devotion to John 3:16.

Establishment?  I think not.

Neither does the Second Circuit Court of Appeals.  Via Religion Clause :

In Byrne v. Rutledge, (2d Cir., Oct. 8, 2010), the U.S. 2nd Circuit Court of Appeals held that Vermont’s statute that allows for “vanity” license plates, but does not permit the issuance of plates that refer to a religion or deity, is unconstitutional.  The court concluded that by allowing residents to select combinations of letters and numbers that convey a message on a variety of topics, including statements of personal philosophy, taste, inspirational messages and affiliation with causes, but not allowing religious references, the state has engaged in viewpoint discrimination. The court also found the statute unconstitutional as applied.

It was one thing when the State of Florida considered the creation of Christian tags, the ones with a cross and the words “I believe” emblazoned below.  Granted, this was just a cynical ploy to suck money from the devout that would otherwise have been tithed to the church, but it had the clear imprimatur of the state in both recognizing religion in general and favoring a specific flavor in particular. 

But the State of Vermont, in contrast, presented a neutral, blank palette, together with the opportunity (for a fee) to paint it.  Who cares what color paint someone selects? 

As much as it’s wrong for a state to craft a tag that caters to its religious buyers, so too is it wrong for a state to stick its nose into the choice of its car owners favorite eight letter and number combo.  It’s bad enough that states have deigned themselves the arbiters of “good taste,” refusing tags that include words that some grocery clerk finds offensive, but to offer a blank slate and then sit in judgment of the letters and numbers puts the state right back into the mix of favoring, and disfavoring, individual choice.

Being a huge fan of separation of Church and State, I believe that there are a multitude of opportunities to honor one’s deity if that’s what one wants to do, without involving secular government, the one that taxes all of us regardless of whether we ascribe to the judeo-christian ethic.  Build the biggest, coolest creche in your front yard if that’s your thing.  Go to your temple or mosque 25 times a day if it makes you happy.  Fill yourself with the joy of religious until it starts coming out your ears.  But don’t involve the government, which has nothing whatsoever to do with your choice.

The vanity plate, however, offers a great example of the bright line between personal choice and government involvement.  Everybody understands that a vanity license plate reflects the sensibilities of the person who hand-picked the letters and numbers on it.  No one suspects that some clerk in the department of motor vehicles secretly convinced the car owner to switch from “10SNE1” to “JN36TN.” 

It’s every bit as much an intrusion into religion to deny a person the opportunity to express a religious belief as it is to bang out plates with crosses on them.  That it required a 23 page decision by the Second Circuit to keep Vermont’s mitts off people’s vanity plate expressions is really quite amazing.  What is it about religion that makes governments so incapable of grasping where they should either stick their nose in or pull it out? 

Just collect the fee and craft the plate.  What the plate says is no one’s business, even if that just kills all those people in government who desperately want to tell others what they’re not allowed to do.

On the surface, it looked ugly.  Few doubted that impropriety of the nice School Administrators at the Lower Merion School District secreting spying on students in their bedroom via the webcam on school-supplied computers.  Creepy.  But when the case was settled, a new controversy appeared on the horizon.

The total settlement amount was $610,000, broken out as follows:

The settlement calls for $175,000 to be placed in a trust for Robbins and $10,000 for a second student who filed suit, Jalil Hassan. Their lawyer, Mark Haltzman, will get $425,000 for his work on the case.

From Radley Balko :

So public school officials get caught illegally spy on students. But no one gets fired. And none of the offending parties will be fined. Instead, a municipal insurer (which will ultimately affect taxpayers) will pay a decent settlement to one student, a small settlement to another, and a small fortune to their lawyer.

Explaining why public school officials caught spying walk away unscathed is easy.  They were doing it for the children.  They’ve done far worse in the name of protecting the children.  What would have been a horrendous crime, an outrage, if done by anyone else is at worst a source of debate over school privacy.  When it comes to justifying inexcusable conduct, no position is more sacred than school administrator.  After all, they are educational professionals.

But what of that apparent scoundrel, Mark Haltzman?  Proof of the secret cabal of lawyers who trade off the misery of others to line their pockets with outrageous fortune?  Whatever happened to the free consultation?

Max Kennerly does yeoman’s work in straightening out the jerking knee.

In the Lower Merion cases, however, the Plaintiffs brought several claims which, by federal statute, provided for attorneys’ fees in addition to the damages suffered by the plaintiff. :

1. Interception of electronic communications in violation of the Electronic Communications Privacy Act;
2. Unauthorized access of an electronic communications service in violation of the Stored Communications Act;
3. Deprivation of constitutional rights to privacy (under 42 U.S.C. 1983);
4. Invasion of privacy in violation of the Fourth Amendment;

This is critically important in this, and many of the cases concerning the deprivation of constitutional rights discussed here.  Despite the often astounding assumptions of the “value” of civil rights violations, as if every wrong done is worth billions of dollars, the damages are usually trivial compared to the harm we feel.  In other words, there’s no doubt that the conduct was terribly wrong, but that bruise isn’t going to make you filthy rich. 

The upshot, which pisses people off enormously, is that lawyers won’t take cases involving wrongs by government actors (not people who play the government on TV, but people whose conduct was performed on behalf of the government) because there’s no pot of gold at the end of the rainbow to pay for the lawyers’ services.  They anger is then transferred from the offending government actor to the uncaring lawyer, but for whom “justice” would be done. 

Recognizing this harsh reality, some laws provide for attorneys fees apart from the damages to the litigants.

This case represents another example for why attorneys’ fees are so important: In addition to giving lawyers the incentive to bring cases where the wrong is clear, but the economic damages are minimal or nonexistent, the presence of attorneys’ fees also encourages the defendants to settle the case early, and thereby limit their liability.

Of course, this does little to explain the extent of legal fees on Haltzman’s bill, leaving the appearance that his “work” far outstripped the value of the case.  After all, if the evil government (or its insurer, which will eventually send a bill to the evil government for the premium) is footing the bill, what’s the incentive for the lawyer to crank it up, put on a double Cadillac representation with gold-plated legal pads, all on the taxpayer’s tab?

But why did this case, where liability was obvious, cost so much? There’s a simple answer for that: because the School District litigated the heck out of the case. Their own lawyers, as of the end of July, had already billed $743,000 to the school district. I bet the finally bill will exceed $1 million.

Viewed through that lens, Mr. Haltzman was downright frugal in accepting less than half what his opponents charged to fight him.

Notably, this part of the story was omitted in the explanation of the settlement, and is often completely unknown to anyone outside of the small group of insiders calling the shots and signing off on the bills.  Litigation generally isn’t subject to open meetings or FOIA laws. 

But this isn’t the only reason.  While the wrong in this particular case seemed abundantly clear, especially since it received broad attention and near-universal condemnation, the deprivation or violation of constitutional rights that seem so obvious to the victims often fails to get to trial.  Sure, getting your “day in court” is a fine platitude, just like so many that make us feel warm and comfy even though they defy reality in the trenches.  The hard fact is few civil rights cases are ever heard, and fewer still recover damages, whether for some variation of governmental immunity or some banal rationalization which makes the wrong “good enough for government work.” 

That means that the efforts of a lawyer to pursue the violation of rights may not only fail to result in a payday, but leave the lawyer out of pocket for whatever unreimbursed expenses accrued in the process.  This can be a very risky business, trying to protect our constitutional rights by representing a person whose rights were deprived.

So Mark Haltzman “made” more money from this case than did his clients.  Was he supposed to eat the cost of this litigation, as if he, rather than the school administrators, committed the wrong?  Even so, does it concern anyone that we know how much Haltzman got out of the settlement.  Notice that no one names the lawyers representing the school district, the ones who billed out twice Haltzman’s portion, so that anyone who wants to look to the high price of legal services can focus their ire at someone who deserves it?

As Kennerly notes, in relative terms, Haltzman was downright frugal.  He was also successful.  For that, we all owe him a debt of gratitude, as every case that defends civil rights covers our rights as well.

Live long enough and you get to watch as ideas come full circle.  Wearing bullet-proof body armor, Radley Balko proposes that the time has come to rid ourselves of the crime of drunk driving.

Doing away with the specific charge of drunk driving sounds radical at first blush, but it would put the focus back on impairment, where it belongs. It might repair some of the civil-liberties damage done by the invasive powers the government says it needs to catch and convict drunk drivers. If the offense were reckless driving rather than drunk driving, for example, repeated swerving over the median line would be enough to justify the charge. There would be no need for a cop to jam a needle in your arm alongside a busy highway.

Singling out alcohol impairment for extra punishment isn’t about making the roads safer. It’s about a lingering hostility toward demon rum.

Despite the provocative headline, Radley concedes that his argument really isn’t radical at all.  He’s quite right.  It’s a return to the future, where the obsession with Blood Alcohol Content is displaced by concern for the wrongful conduct, recklessness and danger. 

There was once a time when the crime was driving while impaired.  It covered drunk driving, or driving while all drugged up, or anything else that caused one to drive in a manner that was unsafe for others on the road.  If a driver was too sleepy to pay attention to the road, he was impaired.  It was the impairment, rather than the cause of the impairment, that mattered. After all, the guy killed by the sleepy driver was just as dead as the guy killed by the drunk driver.  Just ask his children.

The nasty truth is that the turn toward BAC had less to do with the root causes of car accidents then it did with evidentiary hurdles.  Before Legislatures found out that they could shift the burden onto “science” to make proof both easy and irrefutable, prosecutors had to actually provide evidence to show that a person was driving in an impaired condition.  You know, things like testimony about observations.  Testimony can be refuted.  You can’t argue with a little black box.

The confluence of two things gave rise to a massive shift in the enforcement of impairment laws.  First, the realization that they could fix a number to Blood Alcohol Content that would serve as the benchmark of impairment, and second that some guy named Breathalyzer had developed a magic box that could conclusively state the BAC of a driver.

As with so many miraculous scientific discoveries, it made proof incredibly easier and became the darling of law enforcement.  Legislators only needed to come up with a number that everyone could agree on that would suffice as the bright line between good and evil.  That number, filled with the gravitas of very serious scientific voices, was .10 percent.  Of course, it was, despite all the statistics and anecdotes to the contrary, utter nonsense.

For the person who rarely imbibed, the magic number of .10 might be way beyond their limit, while the alcoholic functioned just fine with a far higher BAC.  Then there are the many other factors, such as the weight of the driver, which aren’t taken into account at all.  But the number was upheld, and the proof was good.

Then there were the magic box problems, where manufacturers refused to disclose their secret ingredients, leaving the rest of us to just accept their word on whether their magic box worked.  And the courts happily complied.  After all, judges can’t argue with science.

From there, and with the help of a some tragedies, it all became about drunk driving.  The magic number wasn’t nailing enough people, so it was reduced to .08% in 2000, with the feds suggesting states take the bait by withholding federal funds for anyone foolish enough to ignore the reduction.

Now, Austin, Texas, Police Chief Art Acevedo wants to reduce the magic number to .05%. 

The problem with the current Texas law prohibiting “driving while intoxicated” (DWI), Acevedo explained, is that it doesn’t allow him to arrest a driver whose blood-alcohol content (BAC) is below 0.08 percent without additional evidence of impairment.

“People sometimes focus on how many drinks they can have before they’ll go to jail,” Acevedo told the Austin-American Statesman. “It varies….A person may be intoxicated at 0.05, and you don’t want them out driving.”

Acevedo is absolutely right, as we’ve always known. The magic numbers are arbitrary, having nothing per se to do with impairment.  The law needed a number, and so a number it received.  And then a new number.  And now Acevedo wants another new number.  But it’s not because the magic numbers, whether .10% or .05%, is of critical importance when it comes to safety on the highway, but because it provides conclusive proof, when combined with the magic black box, that sends a person to jail.

Thoughtful people, including judges and even the occasional legislator, have long known that this was more magic than science.  But it worked extremely well.  It plugged holes in proof and make the drunk driver an easy snatch for any cop so inclined.  And so what if some others, not so impaired, where snagged in the big net?  That’s the price we pay for ease of enforcement.

But as Acevedo’s proposal, if not the federal government’s extortion of 2000, shows, if .10% makes it easy to convict drivers, .05% will make it easy to convict even more drivers.  While Mothers Against Drunk Driving has had enormous success vilifying otherwise nice people who had two glasses of wine with dinner as being the next child murderer, the police have similarly enjoyed the ability of being the heros of the cause. 

The only exception, of course, is when the person stopped is also a cop.  Hey, it’s a tough job and they can appreciate that a guy might need a few drinks after his shift.

Once the focus shifted off of the real problem, impairment, and onto the easy enforcement, magic numbers and magic boxes, it seems that everybody forgot the entire point of laws prohibiting driving while impaired.  It’s about impairment, not BAC.  It’s about the ability to drive safely rather than recklessly.  It’s about saving lives, not convicting people who caused no harm.

But the one place where Radley’s view sinks like a stone is that the abolishment of BAC as proof of impairment leaves a gaping hole in enforcement.  How in the world will the police conclusively prove guilt so that no one can survive prosecution? After all, what good is a prohibition if it can’t be proven by magic?

Forget those real housewives of wherever.  Or those fake Vegas lawyers on that new TV show.  The real lawyers of Las Vegas made a pass here yesterday, leaving this enticing comment:

First I would like to appriciate you for the valuable information sharing with us. Thanks for making informative blog.

I know they are the real lawyers of Law Vegas because they told me so.  They even left me a link to their website.  You’re probably asking yourself right now, who are these real lawyers of Las Vegas?  Me too!  Allow me to provide some insight.

We are a premium law firm based in Las Vegas and provide expert legal services in various aspects within the extensive purview of Las Vegas Law.

Oh sure, you say.  A premium law firm.  Prove it.

Attorneys Las Vegas is a popular and quality law office that provides all-round legal services to the residents of Las Vegas. With a strong performance record in the market, this Las Vegas law firm has already managed to establish their solid moral credentials. No local attorney working with Attorneys Las Vegas has ever been questioned or held guilty of immoral code of conduct by any of the State Bar Associations in the whole of the United States.

The whole of the United States?  Now that’s impressive.  But tell me more about the lawyers of your premium law firm, like where do they practice?

Attorneys Las Vegas currently serves the state of Las Vegas and most of our employees are local attorneys. We are one of the best facilities you can get in Las Vegas.

It’s certainly comforting to know that they work the entire state of Las Vegas with their mostly local attorney.  But are you really good?

Now that you have made up your mind to find out about our services and engage our attorneys, we can assure to provide you with some of the most professionally-skilled and experienced local attorneys in and around Las Vegas. We offer a wide array of integrated solutions covering comprehensive legal services of varied nature in an ultimate time-effective and worthwhile manner.

And really, who doesn’t want their legal services of a varied nature in an ultimate time-effective and worthwhile manner?  I know I do.  And the really good news is that you can get a consultation online with a credit card.  Sadly, nowhere on the website does it indicate who any of the real lawyers of Las Vegas might be.  In fact, it doesn’t even indicate who is operating the website. 

There is a link that says this real law firm has “55 years combined experience” and “experts in Las Vegas law,”, and when you click on the link, this is what you get:

Lorem Ipsum is simply dummy text of the printing and typesetting industry. Lorem Ipsum has been the industry’s standard dummy text ever since the 1500s, when an unknown printer took a galley of type and scrambled it to make a type specimen book. It has survived not only five centuries, but also the leap into electronic typesetting, remaining essentially unchanged. It was popularised in the 1960s with the release of Letraset sheets containing Lorem Ipsum passages, and more recently with desktop publishing software like Aldus PageMaker including versions of Lorem Ipsum.

She looks so studious and trustworthy, too.  Now there are many in the blawgosphere, indeed online, who take no issue with online marketing.  Free market and all.  And my wild guess is that whoever has put up this website and is spamming blawgs may not be a real lawyer of Las Vegas.  Not a real lawyer at all.  Not to be found from sea to shining sea. 

How many people might, in their moment of desperation, find this website and seek the help of these real lawyers of Las Vegas?  If it turns out to be only one person who turns over their credit card number, isn’t that bad enough? 

But this isn’t a reflection on lawyer marketing, or coop advertising, or selling territories.  Oh no, it’s entirely different when there are real lawyers producing the same websites as scammers, even if the scammers are more adept in the native tongue.  After all, on the internet, everybody can tell you’re a dog.

Like a dream come true, Chief Judge of the Texas Court of Criminal Appeals, Sharon Keller, walks away untouched.  MIchael Richards remains dead.  Keller’s slamming shut of the courthouse doors remains wrong.  And yet all charges against her are dismissed.  Is this a great system or what?

The reasoning behind the Special Court of Review tossing the charges against Killer Keller (as she will forever be called, here at least) is simple. The sanction imposed by the Commission reviewing the decision of the special master, Judge David Berchelmann Jr., imposed a penalty that was legally unavailable.  The options were removal from the bench or censure.  Instead, they issued a public warning.

The 3 person Special Court of Review held :

In the absence of a finding of good cause and the requisite number of votes, the Commission was required to dismiss the charges.  Here, by failing to either authorize censure or to recommend the removal or retirement of Judge Keller, the Commission implicitly acknowledges that it did not find good cause for its actions or have the required votes to take those actions.  The Commission, therefore, had no option but to dismiss the charges against Judge Keller.

Whenever a decision turns on the words “implicitly acknowledges,” you can bet that we’re in for one heck of a good ride.  When it’s a controversial decision in an odd situation, it’s best described by the word “punt.”  From the Latin, punt, puntum, puntas.  If the Dallas Cowboys could punt like this, maybe they wouldn’t be losers. Nah.

To any reasonably thoughtful person, the inquiry into Sharon Keller’s deep, abiding concern for the life of others would consist of two separate questions. 

Question 1:  Did the Presiding Judge of the Texas Court of Criminal Appeals, Sharon Keller, violate the Code of Judicial Conduct?
Question 2:  If the answer to question 1 is “yes”, then what penalty should be imposed?

These questions should come as no surprise to anyone.  They mirror the same questions asked in every case, whether civil or criminal.  Every case except this one.

Instead, the court did something quite extraordinary, mashing remedy with violation and assuming that if the remedy was wrong, the violation didn’t occur.  This is akin to saying that a defendant, convicted of murder and sentenced to a term of imprisonment outside the realm of available prison sentences, didn’t commit the murder at all.  After all, had he committed the murder, he would have been sentenced within the realm of available prison sentences.  By imposing an unavailable sentence, the sentencing judge “implicitly acknowledges that it did not find good cause for its actions.” 

Or, it just imposed an unavailable sentence because the statute describing available sentences was ambiguous, and it was unclear whether it was comprehensive or merely illustrative. 

If it was a criminal defendant, the matter would have been sent back for resentence within those available by law.  If this was a civil action, the matter would have been remitted with instructions to raise or lower the verdict, as the case may be.  But this was Killer Keller.  Dismissed.

From my understanding of Texas procedure, that’s the ballgame.  The sound you hear in the background is Porky Pig saying, “That’s all, folks!” 

The Honorable Sharon Keller’s judicial career is unbesmirched.  Michael Richards is still dead.  The Sovereign Republic of Texas has fully addressed this sordid chapter in its handling of the execution of defendants, and in the integrity of its criminal justice system, and put it to rest.  An excellent day indeed.

The kind of activism associated with social media isn’t like this at all. The platforms of social media are built around weak ties. Twitter is a way of following (or being followed by) people you may never have met. Facebook is a tool for efficiently managing your acquaintances, for keeping up with the people you would not otherwise be able to stay in touch with. That’s why you can have a thousand “friends” on Facebook, as you never could in real life.

That’s how Malcolm Gladwell expressed it in The New Yorker. far better than I have, which is as it should be given that he gets paid the big bucks.  But he goes on to say:

This is in many ways a wonderful thing. There is strength in weak ties, as the sociologist Mark Granovetter has observed. Our acquaintances—not our friends—are our greatest source of new ideas and information. The Internet lets us exploit the power of these kinds of distant connections with marvellous efficiency. It’s terrific at the diffusion of innovation, interdisciplinary collaboration, seamlessly matching up buyers and sellers, and the logistical functions of the dating world. But weak ties seldom lead to high-risk activism.

There is a tendency to love or hate, praise or condemn, technology for all purposes.  Such views are overly simplistic, and the imposition of overarching views on limited criticism is worthless.  Technology is wonderful for some things and less so for others.  The key is recognizing which is which.

As twitter “matures,” I see groups and relationships that developed superficially explode and implode.  Suddenly, the cutest 140 character twit ever isn’t enough to ignore that stupidest twit that followed.  The person who followed you, with whom you share major interests and who you followed back, doesn’t turn out to be someone with whom you would like to share a meal.  Maybe you disclosed a bit of personal information, and found out that you put a gun in the hands of a child.

You don’t know who you’re talking to.  This doesn’t mean that you wouldn’t sell them your product, or offer words of encouragement.  After all, if we are in the business of selling products, then selling products is what we do.  Everyone likes words of encouragement, and it’s the quickest and easiest way to make friends with people about whom you otherwise know nothing.

But in the real world, there are plenty of people with whom you share major interests, but don’t care to become BFFs.  Maybe they are unsavory.  Maybe they smell funny.  Maybe the seem so wonderfully likeable until you learn that they are a staunch supporter of Carl Paladino.  They may make a fine twitter buddy, but not someone you would give the keys to your home.

That’s fine.  It really is fine to enjoy what social media offers, to the extent it works well. 

Gladwell’s issue is that the means of activism has been confused with the substance of activism. 

The evangelists of social media don’t understand this distinction; they seem to believe that a Facebook friend is the same as a real friend and that signing up for a donor registry in Silicon Valley today is activism in the same sense as sitting at a segregated lunch counter in Greensboro in 1960. “Social networks are particularly effective at increasing motivation,” Aaker and Smith write. But that’s not true. Social networks are effective at increasing participation—by lessening the level of motivation that participation requires. The Facebook page of the Save Darfur Coalition has 1,282,339 members, who have donated an average of nine cents apiece.

No one takes their life into their hands by signing on as a friend or retwitting.  It’s easy.  It’s just not necessarily meaningful. 

Bringing Gladwell’s issue closer to home, I often find myself writing about something that’s happened in some distant city or state, pointing out what went wrong and what could have been done to make it better.  People will comment, stating their agreement or, on occasion, their disagreement. Either way, we’re all just whistling Dixie.  We’re not there.  We have nothing at risk.  The worst that can happen to me is that a bunch of people I don’t actually know will tell me what a moron I am.  The worst that can happen to them is that I’ll respond in kind.  Big deal.

This struck me a while back during the tumult in Maricopa County, when I asked, Are We Mere Blawgers? I worried that we thought to highly of our own importance, attributing far greater power to ourselves than we deserved.  It was as if the blawgosphere could move mountains, and we were beginning to believe it.  Others ripped me a new one for suggesting our lack of potence in such matters.  Mark Bennett , who has never shied away from telling me when I’m wrong, commented :

Our lights are little—candles, maybe, instead of spotlights; distant stars instead of the sun—but they are still lights.

I suppose every 9 cents helps, but it’s still only 9 cents.  I’ve met for real with some of the people I’ve “met” online.  Some have become friends.  Some real acquaintances.  Some became nothing.  If I was stuck in a trench under enemy fire, I would expect my friends to save my sorry butt.  Doing so involves taking a personal risk.  That’s what friends do for each other. 

It really wouldn’t matter a lot to me how many people later twitted about it.  Especially if I was never able to make it out of that trench because my only “friends” were on Twitter and Facebook.