The intersection of the movement and representation

When we took that oath and received our ticket to play we obligated ourselves to do everything within our power to represent our clients' interests. We agreed to set aside our own political beliefs when representing our clients.

I have represented many a client with whom I couldn't disagree more on questions of political, religious or racial beliefs or feelings. Not once did those disagreements prevent me from standing next to my client and forcing the state to prove its case beyond a reasonable doubt.

I have stood next to clients who have done things I find reprehensible -- but I'll be damned if I going to let my client face the wrath or the court or the state alone.

But not everyone feels that way. NYU Law professor Alina Das was awarded the 2018 Making a Difference Award. She is the co-director of the Immigrant Rights Clinic. She wants to be a "movement" lawyer. She sees the law as one tool of many to be used in the fight for social justice.

On a personal level, I have no problem with her stance. She is getting her hands dirty representing those who need representation the most.

However, when you make the decision to practice law, you make it with the understanding that you don't get to choose your clients. Your clients choose you. And if you expect to make a living in this profession, you have to take your clients as they are.

Ms. Das is a faculty member at a law school. She has the luxury of picking who she represents and what she does with her law degree. Attorneys carrying tremendous debt loads don't have that luxury.

They are also impressionable and naive when they walk in the doors for the first time. Some know what they want to do -- and they don't care who their clients are, so long as the check doesn't bounce. Others are still trying to figure out what they want to do with that degree when they walk out the door after graduating.

When they listen to a law professor talk about being a movement lawyer, do they really understand what that means and how that can be at odds with the profession they have chosen? Do they understand when they step foot in the courtroom that no one gives a damn who they voted for or how they feel about the latest issue of the day? Do they understand that when a client signs on the dotted line and hands over a fee that their loyalty is to that client and not to whatever cause motivates them?

And, as my colleague Scott Greenfield pointed out, what happens when a client's interest and the attorney's political interest collide? Who loses out?

If you're a criminal defense attorney and a supporter of the #MeToo movement, how does that square with the presumption of innocence? What about holding the state to its burden of proof? And if you proclaim that we should always believe the "victims," what about other cases involving testimony from a complaining witness? If you are representing a defendant accused of sexual assault are you going to tell the judge you have no questions when the prosecutor has finished with the complaining witness?

And what of the ACLU? From time immemorial the ACLU represented those who had no voice in First Amendment issues. They defended the indefensible. If a marginalized group was denied a forum that a popular group was able to use, the ACLU stepped in and defended their right to speech and free expression. Now if a group expresses views that align with the right, the ACLU won't even bother to answer the phone. Their legal mission has been subsumed by their political mission.

If you want to be an advocate for a movement or a philosophy, join an organization that works for your particular cause. Be active in politics. Hell, run for office. Work to effect change at city hall, the statehouse or in Washington.

But if you choose to be an attorney, advocate for that person sitting across the desk from you.

Goodbye, Anthony

Reading about the death of Anthony Bourdain yesterday made me sad. I remember when his show No Reservations came out. It was a fascinating mix of food and culture. I could not get enough of it.

Back in December 2008 I wrote a short blog piece about how every little piece of knowledge you acquire makes you realize there is so much more to know. That piece was inspired by a quote from Bourdain's show about his trip up Macchu Pichu.

There are some things that have changed since that piece was published and there are some things I would change if I were to write it again. But, this article is one of the first things I thought about when I heard that he had died.

If you are suffering from depression, please don't be afraid to talk to someone about it. Your friends are your friends regardless. If you know someone who suffers from depression, reach out to them. Let them know you're there. The world is a better place when we look out for each other.

This is for you, Anthony. May we continue to realize how little we know about the universe in which we live...

The More I Know, The Less I Know

The other night I was watching Anthony Bourdain trekking through Peru and he made a comment (I'm sorry but I don't know who said it first) that the more he learned, the less he knew.  

At first it sounded quite paradoxical, but then, as I thought about it, it began to make sense.  When we are born we know nothing, our world is the six inches in front of us; but, as we absorb all that we come into contact with, our world expands.  

As a child we are the center of our own universes.  Everything outside is a mere abstraction.  But the more knowledge we absorb the more we come to understand that we are but a small piece in a much larger mosaic.

The same dynamic continues as we move into adulthood.  Seven years ago my (now)wife and I spent the holidays backpacking through Spain.  In those two-and-a-half weeks I learned a lot about Spain, her traditions and her history, but I also learned a lot about myself, my relationship with my wife and my country.  Things kind of fell into perspective as I sat in a church that was built before the pilgrims landed in the Americas for midnight mass.

As a criminal defense attorney I find the more I learn about DWI law, the breath test machine, police coordination tests, jury selection and closing argument, the less I know.  Every new door I open up reveals another.

Strive to know less.

More on the language we use

Had a couple of interesting twitter exchanges this weekend with a couple of acquaintances that got me to thinking a bit.

The first had to do with something labeled identity politics.

At the birth of the republic the only folks who could vote were white men - and in many places you had to be a property owner to get to vote. Blacks won the right to vote after the Civil War - though in many places in the South that right was something honored much more in the breach than in the observance. And even after the passage of the Voting Rights Act states continued to find ways to deny blacks the right to vote.

Women won the right to vote across the country in 1920 with the passage of the 19th Amendment - though, in fairness, women had been voting in some states out west prior to that.

Across this country white men make up the largest share of legislators, governors and congressmen. In many regions that's due to the manipulation of the voting public through gerrymandering and at-large representatives. After the 2010 census, Republican lawmakers across the country set out to redraw district lines to benefit Republican candidates. They also began passing voter ID measures to make it harder for the elderly, the poor and minorities to vote.

And just why did they go to these lengths? Primarily because the old white power structure across this country is crumbling thanks to demographic changes. The only way to fight back against this was to redraw district lines to benefit white suburban and rural voters and to make it harder for those who would typically not vote Republican to vote. This also explains the anti-immigrant rhetoric and calls to restrict immigration from non-white parts of the world.

Yet somehow this is NOT an example of identity politics. That pejorative is only used when discussing folks who don't fall into the conservative white camp. These folks like to tell you that we, as a society, have moved beyond race. But we have yet to move past this social distinction that guided most of the history of this country.

The other had to do with the term "party line."

I make no secrets of my political and philosophical views. I am opposed to the increasing militarization of this country. The military is too big and takes up too much of the federal budget. There is no need for the number of troops and equipment we have stationed around the world. In large measure, the only reason is to ensure the safe passage of oil from one part of the world to another. This subsidy is one of the reasons that the price we pay for gas at the pump doesn't reflect the actual cost of the fuel.

US troops are also based around the world to prevent political movements that oppose the US and its policies from taking power. Post World War II history is littered with accounts of nations that the US has invaded - or organized armed opposition - to overthrow democratically elected leftist governments.

I commented that we were spending too much money on the military. The response accused me of being naive and following the party line.

It was the use of the phase "party line" that got my attention. I find it interesting that anyone who talks about the need for the US to be the world's policeman isn't accused of following the party line. Anyone who advocates the intervention of the US into the internal affairs of another country is never accused of following the party line. Anyone who says that you have to have a big stick in order to carry out diplomacy isn't accused of following the party line.

It's only those of us who challenge those assumptions that are accused of following the party line.

Maybe it's because they can't put together a coherent argument for why the US needs to intervene in the affairs of other countries. Maybe it's because they were brought up believing it was necessary and have never taken the time to research the issue. Maybe it's because they are too lazy to try to put an argument to paper. And maybe it's because they are the ones parroting the party line.

The bankruptcy of ideas

President Trump's nominee to the Supreme Court, Neil Gorsuch is a real throwback. Really a throwback.

He is a self-described "originalist" when it comes to interpreting the Constitution. In other words, in Mr. Gorsuch's reality, the words and phrases in the Constitution mean just what they meant back in the late 18th century.

Let's see. Back in the 1780's slavery was legal in the United States. Women didn't have the right to vote. There were no cars, there were no computers. The United States was a rural agrarian society. There was also a belief back in the early days of the Republic that the Bill of Rights only applied to the federal government - not to the individual states. There was also no such thing as judicial review by the Supreme Court until Chief Justice John Marshall went looking for a justification for his ruling in Marbury v. Madison and created it out of whole cloth.

Does this mean that a Justice Gorsuch would hold any warrantless search to be unconsitutional? Would he find that the NSA's data dumps to be illegal since computers weren't something contemplated by the Founding Fathers? Will warrentless searches of cars go away since there wasn't such a thing back in George Washington's days?

Will we return to the 18th century notion of an arrest instead of looking for any way possible to not call an arrest an arrest in order to keep evidence admissible?

Will the ruling in Citizen's United be cast upon the ash heap of history since the notion of the corporate person did not exist in 1789? And what about this quaint notion that campaign contributions are a form of free speech?

Does Mr. Gorsuch believe that every armed conflict the United States has entered since the end of World War II was illegal since there was no declaration of war from Congress?

Mr. Gorsuch's self-proclaimed judicial philosophy is completely vapid. It is but a fig leaf to cover a naked attempt to turn back constitutional protections of the accused, minorities and women. Now, as much as I disliked Antonin Scalia, he made some rulings in 4th Amendment cases that protected the rights of the accused. Of course those rulings were a small counterpoint to his rulings that favored the rights of the powerful over the rights of the powerless.

This bankrupt philosophy isn't a philosophy at all. It is merely a justification to carry out a libertarian agenda that will seek to unleash capitalism at its worst.

Could you be a bit more polite, please?

How come after the murder of an unarmed black man by the police the first thing folks want to do is caution (mostly black) protesters to be calm and non-violent?

Why isn't anyone issuing the came precautions to the police?

Social change isn't an easy process. Sometimes it takes a revolution. It can be very messy.

Change was very slow during the Civil Rights Era. Martin Luther King, Jr. and his followers were arrested, beaten and assaulted throughout the old Confederacy. They maintained their stance of non-violence. And the beatings continued.

Things changed when Malcolm X came onto the scene. Suddenly the white power structure had to deal with the threat of violence. Negotiating with King became a more practical tactic than turning cops and dogs on men, women and children.

Senators and representatives were scared to death that an armed insurrection would break out in the streets. They had to find a solution and they had to find it quickly.

Without Malcolm X it is likely that the Civil Rights Act and Voting Rights Acts would not have passed - or would have been far more watered down than they were.

Marc Carter ‏@JudgeCarter228  Sep 21

Attacking police officers makes a bad situation worse, it's stupid and puts everyone at risk. #peacefulprotest #dialogue #accountability

While Judge Carter's sentiments may be in the right place, the fact is everyone whose skin isn't white is already at risk - regardless of what they do or don't do. (Of course you could read the statement to be an indictment of police officers attacking others; but I doubt that's what was meant. I guess it all depends on what word you choose to put the emphasis.)

Terrence Crutcher's car broke down on the highway. The police came to the scene. Mr. Crutcher had done nothing wrong yet all of sudden, once the police showed up on the scene, he became the suspect. The cops assumed that he was guilty of something and treated him as such. There was no justification for their actions. There was no justification for Officer Betty Shelby to murder him. But there it was.

Keith Lamont Scott was sitting in his car waiting for his son to get off the school bus. Cops were in his housing project to serve a warrant on someone else. Suddenly, just because he was sitting in a car, Mr. Scott became a suspect. The cops assumed he was guilty of something and treated him as such. And I don't give a fuck whether he had a gun or not because he had a permit to carry one. But now he's dead, too.

Now let's contrast these incidents to the standoff in Oregon where Clive Bundy and his armed band of right wing fanatics (and freeloaders) occupied a national park. Despite the fact that Mr. Bundy and his fellow criminals were breaking the law, despite the fact that they were armed and threatening to use their weapons, they walked out of the park alive. The police used extra caution to ensure there was no bloodshed.

That sure as hell wasn't the case in Tulsa, and it wasn't the case in Charlotte. You can draw your own conclusions as to why the standoff in Oregon didn't result in multiple deaths. I've already drawn mine.

And now here we are in 2016, watching as the police continue to murder unarmed black men and those who raise their voices in protest are told to keep it down. Keeping it down hasn't done much good to this point. I'm not going to lecture anyone on how to challenge the system because when the masses say enough is enough, it's over. The existing power structure might want to prepare in case it's the fire next time.

On ritual, superstition and subjugation

While most of us are preparing to participate in the pagan celebration of the winter solstice, I had a couple of questions for the superstitious among us.

If we are to believe, as the superstitious around us do, that there is a loving, all-powerful god behind the curtain pulling the strings in this universe of ours, how do you explain what happened in Newtown?

If you believe that this loving, all-powerful god of yours knew every one of us before we were ever born, how do you explain why this god would have snuffed out the lives of 20 children in a hail of gunfire?

And don't tell me that it's to test the faith of the parents. If that's your argument then we are all just pawns in someone else's game. What message does that send to our children - that this god they are told loves them has no compunction about ending their lives in an instant?

If your god does exist as some kind of a prime mover then your god is an arbitrary and capricious god. Your god is a cruel and sadistic deity.

And the massacre also points to another loose end. If your loving, all-powerful god really does sit in a throne in an alternative universe called heaven, most (if not all) of those 20 children will never enter the gates.

For those steeped in liturgical superstition, when that little baby is baptized it's only a ritual that means next to nothing until the bureaucrats in charge have determined that the child has been confirmed. And that only happens after the child is thoroughly indoctrinated in the particular flavor of superstition you practice.

For the rest of the superstitious among you, a person is only "saved" from their miserable existence in this universe if they buy into the sect's superstitions. But, until that time, you don't pass Go and you don't collect your $200.

But that's the dirty little secret that no one wants to talk about and that no one dare admit. Just how many folks do you think would buy into the great opiate of the masses if that was explained to them?

Religion has always been a tool to subjugate the masses and to quell dissent. It is used today as a tool of the ruling elite to justify the suffering that they have wrought on the rest of the world. It is used as a tool to justify the mass killings of innocent men, women and children around the world. It is used as a tool to inflame prejudice. It is used as a tool to convince the downtrodden that it was ordained by god that they be exploited and left to rot like garbage.

Just something to think about.

Pussy Riot and the decline of empire

Two years in prison for performing an anti-government song in a church. Two years in prison for insulting the official religion. Two years in prison for encouraging people to protest against the nation's leader.

Two years is what the three members of the Russian punk band Pussy Riot received after being convicted of hooliganism last Friday.

Russia is a country with a long tradition of discouraging dissent. Whether we're talking about life under the tsars, under Stalin or under Putin and his minions, the story is always the same. Those who speak out against the government are outcasts.

Criminalizing anti-government speech is the mark of an insecure leadership. Repression in Russia has survived for centuries because of the docile nature of the masses. When a people are scared to walk or talk out of turn, the result is a lack of creativity and new ideas.

Criminalizing speech is a means of controlling thought. You raise the price of poker enough, even the most ardent critics will begin to think twice before criticizing those in power. You eliminate criticism and you eliminate opposition to your ideas.  You eliminate criticism and you eliminate a very powerful check on authority.

New ideas are always born out of opposition or criticism of the ideas currently in vogue. As Marx would say, new ideas are born from the contradictions of old ideas. Yet that fostering of new ideas is the very thing the Soviet government fought against for decades. It is the same thing that Mr. Putin and his minions are fighting against today.

Every new movement in art is the result of a struggle against the existing movement.

Those who fight to prevent dissenting voices from being heard are the conservative wing attempting to prevent progress. That progress may not be smooth or linear but so long as there are competing opinions and competing visions, progress will be made. The alternative is stagnation and decay. All of the old empires fought off progress and they all collapsed under their own weight.

The Russian government is fighting a losing battle.

Book review: The End of War - how waging peace can save humanity, our planet and our future

Paul K. Chappell's latest book, The End of War, isn't on the newly released list - but I just found out about it a couple of weeks ago. And, although I may be late to the party, the wait was well worth it.

Mr. Chappell was a captain in the US Army so his is a very intriguing look at the causes of war and the ways we can avoid war in the future. As Mr. Chappell sees it, peace activists and soldiers have a lot more in common that you would think - they both want peace and an end to war. Those striking the drums of war aren't the soldiers; they're the politicians and others who have something to gain from sending young men to the deaths in other parts of the world.

War, according to Mr. Chappell, results from fear. Fear tends to provoke one of two reactions: one either runs or one displays warning aggression. Warning aggression is a way for animals, and people, to try to scare off a perceived aggressor. For instance, if you're out in the woods and you see a bear, the worst thing you can do is run. If you run, the bear will chase you down and you'll have a very serious problem on your hands. On the other hand, if you act aggressively toward the bear, the bear will leave because the bear isn't looking for a fight.

Warning aggression is what the nuclear arms race and mutually assured destruction was all about. Neither the US nor the Soviet Union ever intended to use their vast arsenals of nuclear weapons. But the existence of those arsenals prevented the other side from even thinking of launching an attack.

Address the issue of fear and you address the cause of war. If you have any doubts, just look at how politicians and some in the media instill fear in the minds of the American public while beating the drums of war.

For many animals, warning aggression ends any potential conflict. But, if an animal is backed into a corner with no escape, conflict will ensue. And that's the way in which countries get dragged into wars. When a nation has no way of backing down from a conflict - war will come.

Mr. Chappell also posits that there are three universal laws of conflict that sow the seeds of war. The first of these laws is the more complex something is, the more things there are to go wrong. Human society is very complex and our relationships with others are complex. With a multitude of political and religious beliefs, there are many ways these relationships can break down.

The second law is very similar to the concept behind chaos theory - in a complex system, one small problem can create a very big problem. As the saying goes, a butterfly flapping its wings in China can cause a hurricane in the Gulf.

But there is hope still. For, increasing understanding can overcome increasing complexity. The more we understand ourselves and our neighbors the easier it is for us to get past the two laws of complexity. The more you understand someone else, the more you realize that your differences are far smaller than your similarities. We all want three things: food, shelter and clothing. The ways we go about getting those items may differ, but our needs are all the same.

Throughout the book, Mr. Chappell makes reference to Gandhi and Martin Luther King, Jr., and their nonviolent struggles for freedom. He points out that both men taught understanding, patience and tolerance. Their goal was to transform a society, not to rip it apart. We have this perverse notion that the only way to obtain peace is through war, but, as a soldier, Mr. Chappell has seen the incredible devastation that war brings. His mission is to fight for peace without the use of violence. His "weapons" are understanding and unconditional love.

Sure, there are parts of the book that might seem pedantic and simplistic, but, if you sit down and think about what he's saying, you will come away with a greater understanding as to what fuels conflict and what we can do to end it.

Words to live by

I caught this on Moonshiners the other night. Jesse, the Virginia ABC agent was driving around talking about the moonshiner that got away...

"The bad guys gotta be lucky all the time. I only got to be lucky one time."

How true. How very true.

Fighting authority

'nuff said.

Just because you sit in a garage, it doesn't mean you're a car

Rigid adherence to protocol should never be mistaken for intellectual rigor.

Of course not only do we tend to equate the two, we actually hold it up as model behavior in our courts. We call it precedent. It's what allows appellate jurists to ignore the facts, and the constitution, when they don't want to make a difficult decision. Now the law should be predictable so that we don't find ourselves committing felonies  because one judge somewhere woke up on the wrong side of the bed or had a bad night.

But the law is also organic. It was written by man. Our laws were passed in response to things that were happening at a given point in time. The circumstances surrounding the birth of many of our laws have completely changed over the years. There are things we have now that could never have been contemplated by the Founding Fathers.

DNA, breath testing, drug-sniffing dogs, cell phones, the internet, cars...

None of that was around back in the late 18th century. Hell, none of that was around in the 19th century or most of the 20th century for that matter.

Sitting on the bench requires more than just the ability to look up the local rules or the rules of civil or criminal procedure. Sitting on the bench requires one to "rise above the fray" and engage one's mind in just what it means for a search to be "unreasonable." It requires one to contemplate just what it means to "invoke" one's right to remain silent.

It requires one to be able to take into account the "big picture." When a judge makes a ruling from the bench that judge needs to be aware of what the consequences of that decision are. Judges who dispense "one size fits all" remedies are doing a disservice not only to the legal system but to our communities as well.

Judges are not part of any "team" and should never allow themselves to act in such a manner nor allow others to perceive they are acting in such a manner. Candidates for criminal benches should never sound like candidates for sheriff.

The job of sitting on that bench and making rulings that will affect peoples' lives is an awesome responsibility and that fact should never be forgotten. And to make those decisions based upon a rigid adherence to protocol is a sign that the person sitting on the bench has no business sitting there.

Update: Dr. Big Brother?

As a follow up to a piece I wrote in May about a ballot initiative in San Francisco that would impose fines on doctors who performed circumcisions, a Superior Court judge in San Francisco has ordered the referendum be removed from the ballot.

Judge Loretta Giorgi found that circumcision is a medical procedure and, as with other medical procedures, should be regulated by the state and not by individual cities.

Of course Judge Giorgi's ruling did not please everyone in the City by the Bay.

"To remove an initiative before it comes on ballot is an extraordinarily irregular thing to do," said Lloyd Schofield, who is part of a Bay Area advocacy group that says the surgery violates human rights and likens it to "male genital mutilation."

I guess we all need a cause but, let's get real, to blame all of the problems one has faced in life on the fact that mom and dad decided Junior should be circumcised shortly after birth, is just a bit of a stretch. Making such a statement is taking victimology to new heights. If you don't want your son to be circumcised, Mr. Schofield, then don't have him circumcised.

You see, that was an easy enough problem to resolve now, wasn't it?

Why do I get the feeling that we haven't heard the last of this?

The nanny state and the goldfish

First they set their sights on Happy Meals. Next up was circumcision. Now the city of San Francisco has decided that goldfish are a blight upon humanity. The San Francisco Animal Control and Welfare Commission has proposed that city supervisors ban the sale of goldfish in the city because aquarium fish are "mass bred" under "inhumane" conditions.

WTF?

"Most fish in aquariums are either mass bred" under inhumane conditions "or taken from the wild," commission member Philip Gerrie said. That leads to "devastation of tropical fish from places like Southeast Asia," he said.

Millions of children learn to care for animals by raising goldfish. When I was a strapping young lad each of us in our family had a goldfish. We had to feed the fish and keep the water clean. Of course they all eventually died -- though none more spectacularly than my youngest brother's fish who got sick and was eaten by his bowl mate.

Fish are the ultimate urban pet. You don't have to walk them. You don't have to clean up after them. They don't soil the carpet. They don't get fur all over the furniture. They're pretty to look at - especially salt water fish - and you can customize your tank to your heart's content.

The fish don't have to search for food. They don't have to worry about predators. They just have to swim around all day and provide a pleasant backdrop for whatever else is going on inside the house.

The City by the Bay has rapidly become a symbol of the "nanny state" on steroids. People have to, at some level, be left to their own devices to function. The citizenry has a right to be left alone by the ever expanding reach of the state. Not every perceived wrong can be "fixed" by government fiat.

Like every other major city in the United States, San Francisco is confronted with unemployment, crime, pollution, traffic congestion, poverty, drug and alcohol addiction and a host of other problems. But instead of looking at ways to alleviate human suffering, the do-gooders in San Francisco are taking up the cause of goldfish.

I guess it's much easier to deal with pseudo-issues like rousting fish from the sea than it is with the very real problems that confront our society on a daily basis.

The slow drip of tyranny

I came across the following message on one of the listservs I frequent the other day:

When did we as a society decide it was ok for the government to put electronic policing devices in our private homes and cars and to make up pee in cups every time we turn around? who is to blame? 

If everyone simply refused to comply with those conditions, what would happen?

Freedom is what would happen.

But it won't. We live in a society of lemmings. Few people are willing to rock the boat and those that do are labeled "troublemaker" and "subversive."

We have meekly turned to the state and asked it to protect us. We have decided that we would rather be safe than free. That we would rather have order than liberty.

We have sat by and watched as the state has whittled down the protections of the Bill of Rights. We have stood by as the police and courts have sliced, diced and chopped the Fourth Amendment into a meaningless melange of words on a piece of paper. Words now devoid of meaning.

We did nothing as the state assaulted our right to remain silent and not incriminate ourselves. We stood in awe as the Supreme Court made a mockery of the Fifth Amendment. Instead of having the right to remain silent and speak with an attorney before answering questions, the state now has the right to question us without an attorney unless we say otherwise.

We sat there blissfully unaware as our right to counsel was cut out from underneath us. We've allowed the Supreme Court to decide just what constitutes a critical moment in the criminal (in)justice system. I'm sorry, but being accosted by the police is the critical moment. Did someone along the way forget that we have the right to be left alone?

We have gladly handed over our freedom to the tools of the police state at airports and at the entrances to courthouses across this land. We have allowed the state to molest our children and terrorize the old, the sick and the infirm in the name of "protecting" us from terrorism.

We have gone from a society in which men were not afraid to sign their own death warrant by signing the Declaration of Independence to a society in which we are scared shitless to do anything that might bring attention to ourselves. We have gone from a society that took up arms and fought for its independence to a society that willingly bends over and takes whatever the state sends our way.

Why are we were we are now? It's because no one drew a line in the dirt and dared the powers of the state to cross it. It's because no one was willing to stand up and challenge the authorities.

Thomas Jefferson once said that "every generation needs a revolution."

We had one in 1776. Another one in the 1860's. Maybe it's time. Again.

The politics of exclusion

"Lord, I know that I always said that I'd never involve you in a baseball game. It always seemed silly. I mean, You got enough to do." -- Billy Chapel, For Love of the Game

*     *     *     *     *

"And more importantly, we're going to have to pray. We're going to have to do this prayerfully so that it's not by might nor by strength but by His power that this country will be turned back to Him. That's what we're going to do."  -- Ralph Reed, founder of the Faith and Freedom Coalition

We all know that the wingnuts think God is a rock-ribbed, card-carrying conservative. I would think that, if such a being exists, that it has more important things to worry about than who wins a freaking election. I also find it quite arrogant (or maybe ignorant) for one group to proclaim that God is their God and no one else's.

Who's to say Ralph's crew of bible-thumping believers is right? Is Mr. Reed implying that anyone who doesn't support his agenda is not a true Christian? Is he implying that anyone who doesn't support his agenda doesn't believe in, or worship, God (in whatever name or form)?

What about Catholics and Jews and Muslims and Buddhists?

What about anyone who believes differently?

And what about Jesus's warning that it isn't our place to judge others?

And where does Mr. Reed place compassion, understanding and tolerance in the great pantheon of virtues?

Or does religion have nothing to do with this at all? Are Mr. Reed and his fellow travelers just using religion as a cover to organize a political movement? Karl Marx referred to religion as the opiate of the masses. Religion has long been used to quell the masses by promising them a brighter tomorrow once this miserable life is over.

This is a nation founded on religious freedom. The dour Pilgrims left England because they didn't want the King and Queen telling them how to worship. This nation was built on the backs of immigrants who brought their religions and their beliefs with them to America. The current nativist movement conveniently forgets that few of us were born here. We all came from somewhere else.

All the king's horses...

vic·tim   noun \ˈvik-təm\
1 : a living being sacrificed to a deity or in the performance of a religious rite2 : one that is acted on and usually adversely affected by a force or agent : asa (1) : one that is injured, destroyed, or sacrificed under any of various conditions    (2) : one that is subjected to oppression, hardship, or mistreatment b : one that is tricked or duped 

Both Scott Greenfield and Jeff Gamso have posted recently about bending the rules so that the "victim" of a crime gets a say-so in how a case is resolved. While politicians love to court votes by being "tough on crime," too often they are just butchering the Bill of Rights. They open their mouths without stopping to think that without a crime, there can be no victim.

Take a second to let that sink in. Until a person has been found guilty (by plea or by trial), there was no crime. It is only after the conviction that we can conclude that a criminal act took place. It is only then that there is a "victim."

It's not unusual where I practice for the police to be called out on a domestic disturbance call where there is an allegation of an assault. Upon arrival, the police will arrest the male and he will be charged with assault of a family member. Then, after she realizes that her husband or boyfriend is being charged with a crime, the woman will either contact the defense attorney or the prosecutor and try to get the charges dropped.

Then, when we appear at the courthouse, the prosecutor will tell me that, even though the complaining witness has signed an affidavit of non-prosecution and has told the prosecutor she will not cooperate in the case, he is powerless to dismiss the case because the man was accused of a crime.

But, try to work out a plea on a more serious felony matter and the prosecutor will tell you that he or she must consult with the complaining witness to see if they're okay with the proposed resolution of the matter.

You can't have it both ways. Either the complaining witness has a role in the prosecution or they don't.

Whenever one of our clients is charged with a criminal offense, the charge reads "The State of ___" or "The People of ___" or "The Commonwealth of ___" on the left side of the vs. It's not "Jane Doe" vs. "Joe Bob." And it shouldn't be.

If Jane Doe wants to exact her revenge on Joe Bob, she can hire an attorney and file suit at the civil courthouse alleging that Joe Bob committed any of a number of torts against her or her property. Now she might not be happy that the only recompense she can get is money (if she can collect) - but she's not being made whole at the criminal courthouse, either.

Our justice system can't unring the bell or undo the damage that's been done. Ir can't make an injured party whole. The civil system can award money to the victim of a tort and the criminal system can punish a person deemed to have committed an offense. But that's all it can do.

If the alleged victim of a criminal offense wants his or her voice to be heard, sit at the witness stand and testify under oath as to what happened and how it affected your life. Subject yourself to cross-examination. There is no place in the criminal courtroom for a so-called victim impact statement. Presumably the prosecutor has either talked with the alleged victim or has enough experience to know what an appropriate offer for a given crime is. I would also assume the judge has a pretty good idea of what's appropriate sentence.

See also:

"Failure to yield the right of way," The Defense Rests (May 24, 2011)

Dr. Big Brother?

San Francisco is was known as the home of free love and doing your own thing. 'Frisco was the center of the alternative counter-culture.

Now the city by the bay is about to vote on whether to allow Big Brother to make medical decisions.

A group has managed to gather enough signatures to hold a vote on whether or not to outlaw circumcisions in San Francisco. The initiative would make it a misdemeanor, punishable by a fine of up to $1,000 and a year in jail, for anyone to perform a circumcision on anyone under the age of 18.

What if it's a religious practice? Sorry. No dice.

What if there's a medical reason for it? Nope.

Personal preference? No.

Keeping it clean? Forget it.

Something, either the water, the enormous amounts of drugs ingested in the 60's and 70's or the escalation of property values, has turned the once-contrarian, anti-government population of San Francisco into a hotbed of zealots who feel it's their ordained role to tell everyone else how to live their lives.

I'll grant the proponents of the initiative that the baby placed on the table had no say in the matter, but does anyone even remember it? Was anyone really scarred by undergoing a procedure they knew nothing about when they were a newborn?

Little kids also have no say in when they go to the doctor, what medicines they're prescribed, where they go to school, when they go to bed, what they eat at dinner any any number of other choices that parents have been deemed responsible enough to make for their children.

Parents are given the task of doing what they believe is in their childrens' best interests. I, for one, don't want the government looking over my shoulder second-guessing every decision I make for my kids. The essence of this country is that we are free to do as we wish so long as we aren't harming those around us. You know, live and let live.

But the meddlers can't leave it at that. Instead of trusting people to do what they think is right (and most folks do a pretty good job of it), they want to peek into your bedroom, or your living room or your backyard and tell you what you should be doing.

If you don't want to circumcise your child, fine. Don't do it. If you don't want your kids eating french fries with their burgers, great. Don't order them. If you don't want your kids eating refined flour, fantastic. Don't use it. If you think spanking is wrong, good. Don't do it. If you don't want your kids watching television, climbing trees or playing competitive sports, wonderful. Don't let them.

But don't abdicate the role of parenting to the government. And don't stick your noses in my business.

Seeking link exchanges

I recently received the following e-mail (no link love, though)...

Paul,
I recently emailed you about exchanging links on your blogroll. I have the following three blogs that support my law practice. 

www.criminallawyerillinois.com
www.illinioisdui.us
www.federalcriminallawyer.us 

Can we exchange links?
Lewis Gainor

No, Mr. Gainor, we cannot exchange links at this time. You see, the blawgs I link to my blawgroll are blawgs that I read on a regular (okay, in some cases, semi-regular) basis. There was no quid pro quo in my linking to them. If the authors responsible for them found my blawg interesting then they were free to link to my blawg. I never emailed anyone asking them for a link exchange. I've also never taken down a link because someone didn't "return the favor."

The blawgosphere is a fairly liquid place. New blawgs come and go on a regular basis. Some folks start a blawg because they have something to say. Others start a blawg because some SEO person told them it was a great way to move their website to the front page of Google or Yahoo! or Bing.

The ones who did it for SEO are pretty easy to spot. Their posts are "keyword rich" and recite the law regarding the classifications of crimes and field sobriety tests. Those blawgs are rarely updated and soon fall into a state of disrepair when the author realizes he has nothing else to say.

On the other hand, the blawgs written by folks who have something to say are interesting and diverse. They are serious and funny. They make you laugh and they make you think. They tell stories. They make analogies. They don't have every possible keyword crammed awkwardly into their posts. They aren't forced.

Lewis, you are more than welcome to link to my blawg. If you want me to link to your blawg, on the other hand, you need to give me a reason why. Stop writing the SEO-style posts. Stop cramming the articles with keywords. Stop trying to sell someone something in every post. Tell a story. Put up a funny picture. Find your point of view and express it.

Don't blawg because you want more "link juice." Blawg because you enjoy sitting down and writing. I'll drop back by your blawg in a while. If I find it more interesting, then I may link to it.

Good luck. In the meantime, check out the following blawgs:

• Defending People
• Simple Justice
• Criminal Defense Blog
• Life at the Harris County Criminal Justice Center
• A Public Defender
• Probable Cause

Death of a revolutionary

The other day Norm Pattis wrote a blawg post asking who Jesus and Socrates were. I would answer that Jesus was a revolutionary who was killed because he represented a threat to the state.

If you read the Gospel of John you will find that the Roman governor, Pilate, had no desire to execute Jesus. That demand came from the Jewish high priests. But why?
The high priests were in the position at the pleasure of their Roman overlords. Much like the English colonialists, the Romans were content to allow the Jews some autonomy, provided there was some structure to "keep them in their place." The high priests had no tolerance for anyone who questioned the existing order.

“You are a king, then!” said Pilate.
Jesus answered, “You say that I am a king. In fact, the reason I was born and came into the world is to testify to the truth. Everyone on the side of truth listens to me.”“What is truth?” retorted Pilate. With this he went out again to the Jews gathered there and said, “I find no basis for a charge against him. -- John 18:37-38

The high priests were in the position at the pleasure of their Roman overlords. Much like the English colonialists, the Romans were content to allow the Jews some autonomy, provided there was some structure to "keep them in their place." The high priests had no tolerance for anyone who questioned the existing order.

Once more Pilate came out and said to the Jews gathered there, “Look, I am bringing him out to you to let you know that I find no basis for a charge against him.” When Jesus came out wearing the crown of thorns and the purple robe, Pilate said to them, “Here is the man!”
As soon as the chief priests and their officials saw him, they shouted, “Crucify! Crucify!”
But Pilate answered, “You take him and crucify him. As for me, I find no basis for a charge against him.” -- John 19:4-6

And that's just what Jesus did. He stirred up the masses with his parables of the ways in which the people were being oppressed by the Romans. He inflamed passions with his parable of the ways in which the high priests collaborated with the Romans. He taught the masses the importance of being self-sufficient.

Blessed are the meek, for they shall inherit the earth. -- Matthew 5:5

Those are the words of a revolutionary. Years after the fact the Roman Catholic Church deified Jesus and began to propagate the myth that he preached of an afterlife. The truth is, Jesus preached of a new kingdom on Earth - a kingdom of equality, a kingdom of justice, a kingdom of peacemakers.

These ideas were a threat to the status quo and to those who benefited from the way things were. Jesus had to die - his mere presence was a threat to the high priests.

Was his body in that tomb three days later? I have no idea. The accounts in the gospels were written years after the events portrayed and may have been authored to obscure the reality of who and what Jesus was. Could Jesus' body have been a metaphor for his revolutionary theories? Could the resurrection be a metaphor for the reigniting of the revolutionary spirit of the people?

Karl Marx wrote that religion was the opiate of the masses. Might religion have co-opted one the world's greatest revolutionaries?

Artificial reality

Artificial turf in front of the Harris County Civil Courthouse. What a perfect metaphor for what happens in trial.

In trial an action is deconstructed before our very eyes and ears. That same action, or a reasonable facsimile, is then rebuilt through testimony and physical evidence. But few, if any, of the actors really know what happened. Memories fade. We speculate. We look for patterns that we can plug what we see and hear into to try and make sense of it.

If you ever speak to artificial intelligence gurus they will tell you that the key to building a more intelligent machine is to develop pattern recognition algorithms so that the machine can make assumptions based upon the context of the information fed to it. That's how our brains work. We see part of a picture or part of a word and we fill in the blanks based on the context. Most of the time we're right -- but sometimes we're wrong.

Witnesses "refresh" their memories by reviewing documents prepared by someone else sometime after the events occurred. They testify in absolutes. Let's face it, most of us don't remember what we had for dinner two or three nights ago -- but witnesses will testify as to exactly what happened one night over a year ago based upon a casual glance.

The attorneys have an agenda. We ask questions that we know will give us the answers we need to fit into our theory of the case. We don't want a witness rambling on about what they saw, heard or thought they saw or heard.

We take the raw earth and we construct our own structure atop it. A structure that may or may not bear any semblance to reality. We then expect six or twelve folks plucked off the street to make sense of what happened and render a judgment as to who's at fault or who acted badly.

What happened on the night may be fact. But what we see and hear in the courtroom is anything but.