Many years ago, people used to use these greenish, papers things to pay for stuff they would buy.  Some people would carry big wads of it around with them to make themselves appear important and impress their friends. 

Others, for personal reasons, preferred to keep it close rather than hand it over to people they didn’t know at these places called banks.  Still others had businesses where people would give them these greenish, papers things, and they would use some portion of it to give to other people to buy the stuff they sold.  This was called “normal” back then.

But that was years ago.

The problem was that the government hated not knowing who was walking about with these greenish, paper things.  It drove the government crazy.  Some of these people obtained the paper stuff from selling illegal drugs, or bodies, or from people who felt the need to gamble but weren’t very good at it.  But mostly drugs. The government couldn’t stand the idea that these people had this greenish, paper stuff and the government wasn’t getting its piece.  Eventually, it became too much for even a benevolent dictatorship to take.

About a generation ago, the government of the United States went to war against cash.  Borne was the presumption that currency was derived from crime unless proven otherwise.  There was no catchy name for this war, like the War on Drugs or the War on Terror, though it was connected up to both by negative inference.  But even it the wholesale absence of evidence that cash had any connection to any illegal activity, it was “guilty.”

The government began creating laws, rules, and actions, borrowing liberally from antiquated concepts like the “res” offends the sovereign, to invigorate civil forfeiture.  Where once, the maxim was “the law abhors a forfeiture,” it became essentially overnight, that cash was dirty, and was forfeited to the government unless you could prove otherwise.

And, conveniently, it meant that the government got to keep it. 

Radley Balko posts this investigative report from Nashville:



Despite a certain humor in hearing various fingers of law enforcement fight over the authority to take cash, even in the absence of any wrongdoing, the fact that the police have made the seizure of currency a basic function is inexcusable.

The particular scam shown in the video is a favorite, typically targeting cars with out of state license plates from places where drugs are likely to go and from which cash is likely to return.  The drivers, stopped on an interstate far from home, especially one reputed to be a bit less accommodating of foreigners, people of color or with last names ending in vowels, and happy to use weapons, are least likely to put up a fight on the side of the road.  They fear the consequences when asked whether they have anything to hide, or would mind a quick search.  There is good reason to be afraid.

And few people are equipped to fight for the return of their money.  The fight must be conducted in a far away land, is best done with the aid of a knowledgeable lawyer (which means there is new money spent to get back old money) and risks being singled out as a drug dealer/ terrorist when the claim and demand are filed.  Having walked away from the seizure without an arrest, most people are reluctant to tempt fate by demanding its return.

Even if they show the nerve to challenge the seizure, the standard of proof for the government to keep the money is probable cause. It doesn’t get much easier, particularly when the negative inference is applied and the burden is on the claimant, rather than the cops, to prove the money is clean and lawful. 

Years ago, television advertisements sought to induce people to put plastic in their wallet where once greenish paper stuff reigned supreme.  Today, it’s only a matter of your favorite color plastic, because it’s not like law-abiding people would ever use cash.

About to embark on another summer season of law students and fresh-faced lawyers starting internships, summer associateships and new jobs, Ori Herstein at  PrawfsBlawg and Orin Kerr at Volokh Conspiracy have offered some sage advice on how to conduct oneself.

Since most law student and new lawyer readers here are neither headed to Biglaw or chambers, there are some things that don’t apply as well, such as eating the fish at Big Fancy Dinners, but others that you ought to consider.  With that in mind, my two cents for those whose summer will be spent working in criminal law.

1.  Use Three Senses Rather Than Five

Most of us have five senses. Some think they have six.  If you put yourself in the latter category, there’s no helping you. Stop reading.  If the former, you need to focus on sight and hearing.  Just pay attention and listen to everything around you, even when it’s all happening at once.  You can learn an enormous amount, both right and wrong, by watching and listening. You learn nothing by speaking. 

You think your thoughts are better, deeper, smarter than others?  Then speak, but be quite certain you have something useful to add.  Criminal lawyers love nothing better than to tell war stories.  It’s one of our worst characteristics, but at least lawyers who have been through the mill a few times have some stories to tell. You don’t.  No matter how fascinating you think your tales of law school experiences are, they aren’t. Don’t be tempted. You have nothing to contribute.

The third, and most important sense, is touch.  You may have little to offer on strategy, tactics or grasp of circumstances, but your grasp of a heavy bag will be sincerely appreciated.  Or grasp of a coffee cup. You’re young, strong and perky. Use it to your advantage and put your energies toward something where you can contribute. It will be appreciated, especially if no one has to ask. 

2.  Everything They Told You in Law School was a Lie

The lawprofs mean well, and they were no doubt sincere when they praised Scalia/Douglas and explained why he was right and the others were, well, wrong.  At the ground floor, there are no 37 pages opinions running through the course of legal precedent from the beginning of time to that very day.  There is no parsing of the latest Supreme Court decision, noting that one point is mere obiter dictum and another is the limited/expansive holding of the modest/activist judge.

The words you tend to hear most are granted or denied, coupled with “move on.”  Don’t cry.  Don’t get angry and upset, and explain why how unfair it all is.  We know.  Dwelling on it is unproductive, as there is always another battle to fight around the corner.  When one fight is done, win, lose or draw, we move on to the next.  Wallowing is time wasted that is better spent preparing.

You will begin to wonder, very quickly, why you bothered going to law school at all.  Real judges don’t seem anything at all like the ones the lawprofs talked about, day after day, or the guys who wrote the decisions you were forced to read and regurgitate.  This is because there isn’t a whole lot of law in the trenches, and they manufacture a sanitized version on appeal so that it doesn’t look so foolish to people reading later.

Do not spend your time getting caught up in this, explaining to others your shock and disappointment, crying in your beer, getting all emo and disillusioned.  A lot of law students and young lawyers are lost quickly when they learn this point.  If you realize it going in, you’re a lot less likely to grow tedious and annoying in your epiphany, and a lot more useful in help to deal with ugly battles.

3.  Nurse Your Beer

Everybody has their flaws.  Some more than others,  There is a time honored tradition within criminal law of drinking heavily after court.  Not all lawyers do this.  Some use drugs.  Some just aren’t into altered states of consciousness, but enough do to make this worth mentioning.  As a law student, your drinking chops are likely in pretty good shape, but you are now dealing with pros.

What distinguishes a pro is the ability to imbibe heavily while keeping their wits about them.  You may be good on the “heavily” side, but not so good at remaining neatly groomed as time goes on.  In law school, drooling was considered relatively normal.  Among professionals, it’s frowned upon.

The person standing next to you at the polished oak bar doesn’t want your drool on them.  You don’t recognize that person to be your boss, so you don’t really care, especially at that moment and under those circumstances.  Unfortunately, that person is a judge.  Just because they don’t wear their robe 24/7 doesn’t mean they aren’t a judge.  She will remember that you drooled on her.  She may hold it again you. She may hold it against your boss for not keeping you under control.  She may hold it against your boss’ client because she’s that type of judge.  Don’t drool, meaning keep yourself under control.

4.  Be Polite At All Times

Eventually, you will become a trusted and respected member of the bar. You will get to know folks, and they will get to know you.  At that point, you can pick and choose who you deem worthy of your respect.  At the moment, you have done nothing to make yourself worthy of their respect.  Yes, all human being are worthy of respect, blah, blah, blah, and you will find that most lawyers will treat you quite nicely. That’s because we’re just nice people.  Not because you’ve done anything special.

Remember that you are not their peers.  Do the unthinkable, and use a level of formality until invited to do otherwise.  Call them Mister of Mizzzzz until they’ve told you to use their first name. They will, but it’s their choice.  And judges are called judge or your honor all the time, even in the bar.

The lawyers you work with will likely treat you as one of the gang. This does not mean they’re your BFF.  Criminal lawyers tend to be a far less formal bunch than, say, Biglaw or judges.  We’re not particularly official or officious, but that doesn’t mean we’re teeny boppers either.  Feel the camaraderie, but respect the experience.  You are sucking up their time and attention, and this is a gift they give to you.  Appreciate it.

No doubt there are other things to consider, and many of the admonitions that Ori and Orin offer apply as well.  This is an opportunity to find out what you just bought for your quarter mil, so enjoy it in the sense of gaining an appreciation of the life you chose. 

Brian Garner is not just the editor of Black’s Law Dictionary, but the person’s whose name is invariably preceded by “legal writing guru.”  That gave him the opportunity to interview 8 of the 9 sitting Supreme Court justices, and ask them their thoughts on legal writing.  He’s posted the interviews here and the transcripts here.

Tony Mauro called Garner’s interviews “something close to a national treasure,” and no doubt they are with such gems as:

Justice Antonin Scalia offers his test for deciding whether legal lingo should be excised from a brief:  “If you used the word at a cocktail party, would people look at you funny? You talk about ‘the instant case’ or ‘the instant problem.’ That’s ridiculous. It’s legalese. ‘This case’ would do very well.” Garner and Scalia, by the way, are collaborating on a second book, this one about legal interpretation, due out later this year.

And there’s plenty more good stuff in there, a most-read for all of us.  That said, however, Gerard Magliocca at  Concurring Opinions makes an observation that puts it all in perspective.

The headline is that the members of the Court think that briefs are too long.  “Lawyers somehow can’t give up the extra space,” Justice Ginsburg said, “so they fill the brief unnecessarily, not realizing that eye fatigue and even annoyance will be the response they get for writing an overlong brief.”

If you substitute “Justices” for “Lawyers” and “opinion” for “brief,” you get a terrific description of the Court’s output most of the time.

Being a reader of more Supreme Court decisions than I care to admit, Gerard’s snark hit home.  Some are nearly incomprehensible, straining rhetoric beyond the breaking point and going on forever before getting to anything that matters.  If at all.  The more words used to express an idea, a test, a burden, a holding, the more confused the opinion gets. 

In the blawgosphere, we discuss, even argue, about what a decision means all the time.  And then we wait, sometimes for years, to find out if we’re right.  Or we wait for another Supreme Court decision, maybe a decade later, explaining what they meant in a prior decision because nobody had a clue what do with the earlier one.

Maybe the reasons briefs grow long and windy is that no one is clear what the Supreme want from them, what they already know and don’t. Maybe it has to do with getting slaughtered for leaving out something that everyone thinks is obvious, but that some justice will conclude is waived if not expressly spelled out, at great length.  And maybe, just maybe, words don’t always convey the same message to the Nine, and need to be written differently, explained differently, to meet their points of view.

Regardless of how well or poorly advocates present their arguments, the best way to teach lawyers how to write, if they’re doing such a lousy job of it, is by example. 

Don’t tell me the moon is shining; show me the glint of light on broken glass.

I’m watching and waiting.

Alan Feuer’s article in the  New York Times paints a grim picture, but one that needs to be seen.

The lawyers — there are more than 1,000 in the city — occupy a difficult and middling spot in New York’s crowded legal cosmos, somewhere between the chauffeur-driven celebrities who moonlight as trial-coverage pundits on TV and the earnest young altruists at Legal Aid. They are creatures of the courthouse, where they spend so many hours in proceedings or waiting in hallways for their cases to be called that they are known to justices and janitors alike.

While sometimes thought of as the 97-pound weaklings of the criminal-justice system (“If someone said my name and ‘18-B’ in the same sentence, I’d probably commit suicide,” a more highly paid lawyer said), they are, in a sense, the heart of that system, serving the city’s neediest defendants for what usually amounts to little pay.

Yet this was an article that was close to never being written.  In his research, Feuer sought out lawyers willing to talk about how the recession impacted their practice, and what the future, or lack thereof, would mean to them.  Nobody wanted to be the poster boy for failure. 

While sympathetic to those lawyers who braved the hard work and uncaring judges, and without even mentioning how defendants treated their free lawyers neither respect nor appreciation, Feuer wanted to put a face on the desperate straits of New York City’s criminal defense lawyers, some exceptionally good lawyers, some less so.  it was a struggle. 

Feuer sought out lawyers whose practice consisted primarily of 18B representation, private lawyers defending the indigent and paid by the county.  But lawyers are a proud bunch, ego being one of the few constants necessary to do the job, and no matter how bad the economy or long the 18B checks languished, they keep a brave face. 

There’s no point in complaining, as no one wants to hear it, and the idea of being profiled in the New York Times as a starving lawyer flew in the face of careful efforts to craft a successful persona, the sort that paying clients would seek out to retain.  Going on the record for this article was like committing economic suicide.  Or worse still, conceding defeat.  Who wants their name to become synonymous with failure?

Lawyers, even (especially?) those doing indigent defense, are still subject the influences of finance in world of noble beliefs.  Ivan Vogel, who was brave enough to stand up for what he does, and the situation he’s in, may have cut the frills from his practice, but that doesn’t make him any less a tiger in the courtroom, or a savior to the poor he defends.  Sadly, there isn’t always a direct correlation between quality and caring and cash.  Life isn’t fair, a theme that dominates the story as well as the lives of all involved.

Not long ago, it was possible to earn a decent living — or at least to pay one’s bills without unnecessary travail — as an 18-B lawyer, most of whom, in flusher times, could count on supplementing their low-yielding indigent work with lucrative private clients. With the economic downturn, however, many complain that remunerative retainer cases are harder to find than ever, and that the defendants who do hire private lawyers are increasingly unwilling, or unable, to afford substantial rates.

Historically, indigent defense filled in the gaps.  It gave new criminal defense lawyer, often fresh out of Legal Aid or a District Attorney’s office, a cushion to enable them to start a practice, get the chops needed to run it and practice law, and allow them pay the rent.  As they developed a name to go along with their skills, privately retained clients would come and success would follow.  For others, for whom the telephone never rang, they would survive on 18B, though it was never intended as a primary source of income. 

It’s very different today.  The number of cases is a fraction of what there were 20 years ago.  While the cost of a mid-level criminal defense hasn’t change much,, and may in fact be lower than it was, it’s still more than most defendants can afford.  And that left 18B to fill in the time and cover the costs.  At $75 an hour out of court, pre-tax, it wasn’t enough.  The numbers don’t work.

And these are the halcyon days compared to what’s on the horizon.

On Feb. 3, 2010, however, the Mayor’s Office of the Criminal Justice Coordinator issued its request for proposals, seeking to increase “the administrative efficiency and cost effectiveness of indigent services.” In the request, the city said that it planned to employ “multiple providers” to handle conflict cases, which are now handled solely by 18-B lawyers, and that while it expected to pay these providers by reimbursing their costs, as is done in the 18-B system, it reserved the right “to select any payment structure that is in the city’s best interest.”

This, in short, is the death of 18B.  The New York City criminal bar associations are fighting to stop it, but they  lost the first round and it’s now on appeal.  And with the end of 18B may well come the end of 1000 lawyers who struggle daily to provide legal representation to the indigent. 

There are institutional providers who will replace the cadre of 18B lawyers, but its unclear what will happen to them as well should this plan go into effect.  Would you want to focus your legal career on criminal defense knowing that there was no future in it, no place to go after working for Bronx Defenders?  While the job is pretty darned good for a starting lawyer, it’s not the job for a midlife lawyer with kids going to college who wants to take her spouse out for dinner once a week.

When economic times were better, I was critical of lawyers whose practices relied entirely on 18B.  I called it “welfare for lawyers,” and urged a limit to how many cases, how much revenue, any individual lawyer could make, so that they were forced to work harder and better to get the private retainers.  Lawyers got lazy and slopping living off 18B alone when there was private work to be had.

But when there are far too few private cases, the equation changes.  The fight for a good case became too fierce, and a buyer’s market saw some lawyers cutting fees, and others gasping for air.  It was foolish in the long run, taking cases that couldn’t pay for themselves, but hunger does strange things to the brain.  And neither the cut-rate private work nor the declining 18B was doing much of a job providing a living income.

With the end of 18B on the horizon, the lack of sufficient private work, the well will run dry.  There’s a very strong likelihood that the greatest city on earth will have no criminal defense bar to speak of, with only a few at the top and institutional defenders doing the rest. 

If the first thing one does to assure tyranny is to get rid of all the lawyers, it looks like New York City has an effective game plan. 

Kaitlyn Dunaway seems like a perfectly normal freshman at Sonoma State University.  She likely had lots of fun stuff to tell to her BFFs, and unlike a certain old curmudgeon, thought nothing of using the ordinary medium of her crowd to get it out there.  She texted.  Cool.

Kaitlyn texted while she drove her car.  Oh come on, my fellow fuddy-duddies.  People do it all the time.  Constantly.  If they don’t have a cell phone glued to their ear, then they’re busy thumbing in hip things like “lol” or “ROFLMAO,” if it’s really good.  Like if Tiffany was on a date, and the guy drooled.  That’s not something that can wait.

So Kaitlyn texted while she drove her car.

As the 18-year-old Dunaway texted, her Honda slammed into [2 year old] Calli and Ling Murray at the corner of Snyder and Medical Center Drive, killing the girl and badly injuring her mother, authorities say.

“Do it for the children” is the most abused justification in the law, but it’s not without proper application.  There is simply no need to text while driving that makes the death of this little girl an unfortunate statistic.  My own sensibility is that the same is true about talking on a cell phone, which I similarly believe to be unworthy of a single dead child.  But that’s just me.  Your chats while driving may be so much more important that it’s worth a dead child. Mine aren’t.

Kaitlyn Dunaway has been charged with the misdemeanor of vehicular manslaughter, a show of remarkable restraint given the tendency to manufacture a felony charge whenever a horrible and needless tragedy occurs.  I suspect she will suffer a self-imposed life sentence for what happened.

For those readers who enjoy texting, and who are confident that they can do so, even just reading the incoming texts of others when they hear the Pavlovian ching, know that your having done so a thousand, ten thousand, times doesn’t mean that one time you will lose your focus and an accident will happen.  Accidents are never anticipated. They happen out of nowhere. They happen.

For those readers whose kids text, tell them how much you love them and how you don’t want to lose them to someone who gets a funny text message.  The accident in which they kill another can kill them as well.  At least Kaitlyn Dunaway lived to be prosecuted. Not everyone does.

For those whose politics preclude their ability to balance risk and reward, I appreciate your “right” to do as you please.  For those whose love of shiny gadgets and technology overwhelms good judgment, whether in a car, in a meeting or at lunch with an actual person, I appreciate that you can’t accept the idea of being out of the loop even for a second.  Really, I do.

But there is no text, no email, no twit, no IM, no phone call, that is worth your life.  Or Calli’s life.  There are things worth dying for.  These things are not one of them.  They will all be there to enjoy, to appreciate the lulz, to laugh about, when your car comes to a rest.  Innovation is great, and will remain great when you can enjoy it without putting a life at risk. 

This time, do it for the children applies.  And if you don’t think it does, then do it for yourself.  Whether you think your life is worth saving, this old curmudgeon does.

H/T Turley

Jeff Gamso sums up Ezell Gilbert’s situation succinctly.

The very short version.  On that day in March, Gilbert was sentenced to 292 months in prison by a United States District Judge in the Middle District of Florida.  The judge didn’t want to give him that much time, but the government convinced him that he had no choice under the sentencing guidelines.*  Gilbert argued then that he was improperly determined to be a career criminal subject to a mandatory enhancement under the guidelines.  The courts rejected that argument.

The thing is that 11 years after he was sentenced, the Supreme Court addressed that very argument (not in his case) and said it was right.  Do all the math again, and it seems that instead of a sentencing range of 292-365 months, Gilbert should have faced a range of 151-188 months.  Oh, and along the way the guidelines stopped being mandatory and became advisory.

Ooops.

Nobody is arguing that Gilbert deserves that extra time, or needs it.  Back when he was sentenced, the regime was completely different.  He made the right arguments at the time, but the law had yet to recognize that he was right.  That happens more than you would think.

The  en banc decision by the 11th Circuit was understanding, but its hands were tied.

[W]e granted rehearing en banc in this case to decide whether the savings clause contained in 28 U.S.C. § 2255(e) permits a federal prisoner to challenge his sentence in a 28 U.S.C. § 2241 petition when he cannot raise that challenge in a § 2255 motion because of the § 2255(h) bar against second and successive motions. The primary question, in plainer English, is whether a federal prisoner can use a habeas corpus petition to challenge his sentence. Our answer is “no,” at least where the sentence the prisoner is attacking does not exceed the statutory maximum.

Rules.  And gifts.  As Nancy King explains at Habeasbook :

Judge Pryor concurred, presenting his view that the Suspension Clause does not limit Congressional restrictions on habeas review of criminal judgments.  ”The Supreme Court has never held that the Suspension Clause protects anything more than the writ as understood in 1789,” he stated, collecting authority for this reading of the Clause. ”Because the Suspension Clause does not provide any rights to prisoners convicted and sentenced by courts of competent jurisdiction, any relief that Congress chooses to provide to federal prisoners is, to borrow language from a dissent, a “gift[] that may be bestowed or withheld.”

It’s not that we are due a just outcome, but that we get as much or as little as the government deigns to give.

Frankly, none of this is either shocking or even unusual.  As Gamso calls it, it’s just another day in the bureaucracy, chugging along, doing its job.  No doubt the judges all felt pretty darn bad about the 8 extra plus years Gilbert would spend in prison that he wouldn’t have spent if other judges, maybe even a senator or two, had done their jobs a bit better.  But nobody is perfect, and they all have to live with rules.

It’s just that Gilbert will feel bad from his prison cell while the judges and everybody else will feel bad from their own bed.

Except maybe Senior Judge  James Clinkscales Hill.  One of the great things about senior judges is that they have no one to impress and no aspirations of future greatness.  They are free to speak truth to power, if they are so inclined. Judge Hill was feeling too free, given that Gilbert was in a prison cell.

Today, this court holds that we may not remedy such a sentencing error. This shocking result – urged by a department of the United States that calls itself, without a trace of irony, the Department of Justice – and accepted by a court that emasculates itself by adopting such a rule of judicial impotency – confirms what I have long feared. The Great Writ is dead in this country.

Gilbert raised his claim of sentencing error to every court he could, every chance he got. No court correctly resolved his claim until the Supreme Court made clear that Gilbert’s claim was meritorious – he was never a career offender. Now, he has come back to us for relief from his illegal confinement. Our response to him is that he cannot apply for relief under § 2255 because he has done so before, and, although we erroneously rejected his claim, the statute does not permit such reapplication. Of course, had he not applied for § 2255 relief, we would be holding now that he had procedurally defaulted his claim by failing to raise it before.

This “Catch-22″ approach to sentencing claims is nothing more than a judicial “gotcha.” Through our self-imposed limitations, we have found a way to deny virtually all sentencing claims. We do this, avowedly, in the pursuit of “finality.” But, in so doing, we cast a pall of unconstitutionality over the otherwise beneficial provisions of § 2255.

The government even has the temerity to argue that the Sentencing Guidelines enjoy some sort of legal immunity from claims of error because they are not statutes at all, but mere policy suggestions. And the majority appears not to understand that Gilbert’s imprisonment – no matter how his sentence was calculated – is the act of the Sovereign, who is forbidden by our Constitution to deprive a citizen of his liberty in violation of the laws of the United States.

Where was the government’s stroke of genius when it was argued by every lawyer in every court back in 1987 that it was wildly unconstitutional for some goofy things called Guidelines to bind the sentences imposed by Article III judges in a whole different branch of government?  Dang, but how obvious it all seems today.

I recognize that without finality there can be no justice. But it is equally true that, without justice, finality is nothing more than a bureaucratic achievement. Case closed. Move on to the next. Finality with justice is achieved only when the imprisoned has had a meaningful opportunity for a reliable judicial determination of his claim. Gilbert has never had this opportunity.

A judicial system that values finality over justice is morally bankrupt. That is why Congress provided in § 2255 an avenue to relief in circumstances just such as these. For this court to hold that it is without the power to provide relief to a citizen that the Sovereign seeks to confine illegally for eight and one-half years is to adopt a posture of judicial impotency that is shocking in a country that has enshrined the Great Writ in its Constitution. Surely, the Great Writ cannot be so moribund, so shackled by the procedural requirements of rigid gatekeeping, that it does not afford review of Gilbert’s claim.

Much is made of the “floodgates” that will open should the court exercise its authority to remedy the mistake made by us in Gilbert’s sentence. The government hints that there are many others in Gilbert’s position – sitting in prison serving sentences that were illegally imposed. We used to call such systems “gulags.” Now, apparently, we call them the United States.

Of course, what do the old guys have to teach the younger judges, bent under the heavy weight of their responsibility to make sure that the bureaucracy survives intact.

Sitting atop this judicial trainwreck is Finality.  Every lawyer appreciates the concept of Finality, wrapped up in the platitude that there can be no justice without finality.  But we know it’s a lie. Finality is the protector of bureaucracy, which, it’s argued, would be horribly overburdened if the floodgates were opened.  What a nightmarish image of venal criminals with nothing else to keep their idle hands occupied, shoving writ after writ into prison mailboxes.  The bureaucracy would be overwhelmed, and never capable of doing its real job of administering the justice etched into it lintels.

Only Senior Judge Hill seems to get the idea that if they can’t get it right the first few times, it’s not a really good reason to protect and defend the system that got it so very wrong.  Yet we keep saying that our system, though not perfect, is the best there is.  And with that thought in mind, the majority will sleep well in their own beds.  They did no harm to Ezell Gilbert.  They just didn’t give him a gift.

The Rapture scheduled for tomorrow is malarkey.  The Centers for Disease Control, however, is on top of real concerns that you may not be aware of.

There are all kinds of emergencies out there that we can prepare for. Take a zombie apocalypse for example. That’s right, I said z-o-m-b-i-e a-p-o-c-a-l-y-p-s-e. You may laugh now, but when it happens you’ll be happy you read this, and hey, maybe you’ll even learn a thing or two about how to prepare for a real emergency.

This comes from the CDC.  Do you think you know more than they do?

So what do you need to do before zombies…or hurricanes or pandemics for example, actually happen? First of all, you should have an emergency kit in your house. This includes things like water, food, and other supplies to get you through the first couple of days before you can locate a zombie-free refugee camp (or in the event of a natural disaster, it will buy you some time until you are able to make your way to an evacuation shelter or utility lines are restored). Below are a few items you should include in your kit, for a full list visit the CDC Emergency page.

Generic, sure, but still crucial once the zombies show up at your doorstep. Please take special note that they urge you to have your important papers, like your birth certificate (in case you need to make a presidential run in a post-zombie apocalyptic world) and plenty of duct tape.  Duct tape is just good for so many things.

And fear not that the CDC isn’t ready on its end. The CDC has it’s ducks lined up:

If zombies did start roaming the streets, CDC would conduct an investigation much like any other disease outbreak. CDC would provide technical assistance to cities, states, or international partners dealing with a zombie infestation.

Great job, Brownie.

You can never be too rich, too thin or too prepared.  Don’t forget the duct tape.  Still don’t think it’s a serious threat?  It’s not like it hasn’t happened before.

If any place in America reminds us of the life we enjoyed under King George, it’s Connecticut.  No, not all of it, but at least that part from Stamford to Greenwich, where gentility and wealth are still appreciated over afternoon tea.  That Gideon, of A Public Defender, is only allowed to drive through this area on major interstate highways is demonstrable proof.

This sense of belonging gives rise to Gid’s peculiar sensitivity toward those called in to serve on juries, or as mythology calls it, a jury of one’s peers.  In Greenwich, most jurors bear the first name of Muffy or Biff.  Their last names never end in vowels.  Never.  This is one of the reasons Gid became incensed about the reaction to Georgia’s effort to expand its jury pool to include the possibility that a defendant might have a fighting chance of a jury of his peers.

The State of Georgia is such a frustrating contradiction: they have no money and the worst public defender system in the country and then they go and rebuild it and make it extremely effective and then it crumbles under the weight of a few capital appeals and returns to the race to the bottom, turning into a model of what not to do. And then they pass legislation like The Jury Reform Act of 2011 which :

allows court officials to compile a statewide database from a variety of sources – not just from voter registration rolls – to ensure defendants are more likely to be judged by their peers.

The fact that juries are never made up of defendants’ “peers” is a long running sad joke in the criminal justice system. I once naively asked a co-worker why we didn’t see more urban youth in our panels. Because they don’t register to vote, obviously. Voter registration records are where jury pools are typically drawn from, which limits, in a sense, the pool to only those who bother to register to vote. But that eliminates an percentage of the citizenry who do and should have the right to participate in the civic process.

Voter registration is a great way to include people in the pool of potential jurors.  It creates an easily accessed database of people with the vital information necessary to determine the qualification to serve on a jury.  It’s only flaw is that it doesn’t include people who aren’t registered to vote.  But then, if they can’t be bothered to perform their civic duty, doesn’t that tell us that they aren’t, well, “our type” of people?

But Georgia has decided to use advancements in technology to expand the jury pool beyond those who register to vote, to “more accurately reflect the demographic makeup of our communities.”  The Jones’ sat in their solarium in Round Hill, sipping mojitas in a tip of the hat to their excellent gardener, aghast at the prospect that this could spread.

In Georgia,  all was not well with this concept.

When courts summon everyone who meets the minimum requirements for sitting on a jury – that they are county residents at least 18 years old and not convicted felons – there’s a potential of “diluting” jury pools, said Athens attorney Harry Gordon, who served as district attorney for Clarke and Oconee counties for nearly three decades.

“There’s a possibility (the new law) could open up jury service to every Tom, Dick and Harry, and that could diminish the validity of the jury system,” Gordon said. “If it liberalizes people that get on juries, it’s possible you could find more undesirable jurors, but it’s going to have to be tried because it’s the law, and we’ll just have to wait and see if it works more efficiently or not.”

I don’t suspect Gordon is really too concerned about Tom, Dick or Harry being undesirable, meeting only the minimum requirements for jury duty.  No, my bet is it’s Leroy or Jose that he is really talking about. 

When someone goes to trial and turns around to look at the venire available to him, and just happens to notice that no one in the room bears much of a resemblance, whether by color, age or attire, the true meaning of a jury of one’s peers sinks in.  A defendant often can explain why he did what he did, or didn’t do, within the parameters of his experience.  All the other people on 168th Street and Amsterdam Avenue completely understand what he’s talking about, and when he asked them about his defense, told him that there is no way he could be convicted.

Sadly, neither Muffy nor Biff, nor Tom, Dick or Harry, has ever stepped foot on 168th Street, eastside or west.  The only time their limes come from a bodega is when their excellent gardener purchases them to save Muffy’s housekeeper a trip to the organic market.

While the Georgia law is well intended, it’s not likely to have a significant impact on improving the composition of the jury pool to better reflect the demographic makeup of the community.  You can’t send people notification of jury duty when they have no address, or their mailbox has been broken for years, or the postman doesn’t go to their neighborhood.  They will never know of their inclusion in the official makeup of the venire.

That’s the good thing about undesirables.  They tend to exclude themselves regardless of what opportunities are offered them.  Muffy and Biff got themselves in a lather over nothing.

I listened silently as the attorney on the other end of the phone explained why.  He was a civil lawyer, well versed in the doings of deals and very important business papers, whose client got himself into a jam.  Drunk as a skunk, he got caught.

The lawyer explained that the guy went to court all by himself, even though he owned a large, successful corporation and could afford, if he wanted, a $6000 shower curtain.  He called in advance and was by the person on the courthouse end of the phone that it was fine for him to come to court by himself, he didn’t need to have a lawyer.

“But the guy at the court told him it was okay…”

“He was afraid. He had never been arrested before…”

“He was embarrassed, and he didn’t want anyone to know…”

You’re going to really love the new and improved  Authorization for Use of Military Force that was just given high fives by the House Armed Services Committee.  It puts the old one, passed in the wake of 9/11, to shame, fixing all those terrorist loopholes. 

The  New York Times editorial, however, wasn’t kind to the bill.

It would allow military attacks against not just Al Qaeda and the Taliban but also any “associated forces that are engaged in hostilities against the United States.” That deliberately vague phrase could include anyone who doesn’t like America, even if they are not connected in any way with the 2001 attacks. It could even apply to domestic threats.

It allows the president to detain “belligerents” until the “termination of hostilities,” presumably at a camp like the one in Guantánamo Bay, Cuba. Since it does not give a plausible scenario of how those hostilities could be considered over, it raises the possibility of endless detention for anyone who gets on the wrong side of a future administration.

That’s the problem when one divorces words from meanings, relying instead on those simplistic, vagues thoughts that float through people’s heads that people have a hard time explaining, and usually end with the words, “you know what I mean” or “it’s just common sense.”  And other nod in agreement, filling in the gaps with their own vague thoughts and assuming that everybody’s vague thoughts are the same as theirs.

This follows on the heels of the killing of Osama bin Laden, with our post-killing euphoria and sense of omnipotence and self-righteousness paving the way to renewed trust in our might and right.  The public won’t stay on the government’s side for long, so expand powers while everybody is feeling pretty darned good about America.  Seal Team 6!  Seal Team 6!

In a peculiar deconstruction of the Times’ editorial,  Ben Wittes compares and contrasts its hyperbolic and hysterical cries with an editorial in the Washington Post.

Let’s start with the Post. (Disclosure: I used to work for the Post editorial page and am very attached to my former colleagues.) The body of the editorial notes with appropriate bewilderment the “surprising opposition” McKeon’s proposal concerning the AUMF has generated:

A score of liberal interest groups, including the American Civil Liberties Union and MoveOn.org, sent a letter to lawmakers to express concern that the provision could appear “to be stating that the United States is at war wherever terrorism suspects reside.”

We have one question: Where have they been for the past 10 years?

It’s a darn good point, that the government has pretty much done as it pleased, where it pleased, and justified itself by repeating, “but we’re just protecting you from terrorists.”  We’re so thrilled with our nation for taking our Osama that even torture is looking pretty good these days.  Seriously, if we have to torture a few bad guys, grope a few babies at airports, whatever, isn’t it worth it?  We got Osama, baby. Yeah!

Both editorials make some points, but the fact that the government acted in excess of its authorization, broad and unfettered as it may have been, doesn’t seem to be a really great reason to now hand the government, in black letters, actual unfettered powers to do whatever it wants.  Belligerents?  That covers a fairly good portion of Kansas, not to mention Arizona.  Associated forces, like the criminal defense lawyers who represent accused terrorists?  Probably not, but who knows? 

These words have broad definitions, and even those broad definitions are subject to some artfully crafted spin by the talkers in government who will easily play upon the public’s lack of will to look the words up.  Or even know where to find a dictionary.  The words will mean what the government spinners say they mean, and Americans will shake their heads vertically, and adopt those meanings as if they came up with them on their own.  Imagine all those people who learned a new word, belligerents, today.

Yet the desire to amend and expand the law is itself a curiosity.  As the WaPo editorial notes, it’s not like the government hasn’t had its way with us for the past decade, despite authorization that fell a tad short of expressly authorizing the executive do whatever the hell he wanted.  So why does Congress now feel compelled to put it in writing? 

Maybe somebody on the Hill thinks that eventually, the pendulum will swing back toward a rational look at the excesses of this decade in the War on Terrorism, and it will be written in the history books as another monumental mistake, like the Gulf of Tonkin Resolution?  Maybe Congress doesn’t want to go down as enablers of the only bullet-shooting war against an enemy no one can actually describe?  With some post hoc changes, at least they can point to law that provides justification for a government whose fiat comes from the public’s willingness to bask in the sense of good feelings after an occasional killing?

Whether the AUMF is amended to cover war against everybody or not, our government has no plans to change its ways.  After all, the first job of the executive is to protect his nation from enemies abroad.  It’s not like whoever holds the office is going to change, or let details like lack of legal authorization stand in the way of doing his job.  And besides, anybody could be belligerent.