What You Won't Read About the 'Pants' Case

Just this morning, when my 17-year old client was asked, by the victim of a theft for $25,000 in restitution, ($16,000 of which was listed as "pain and suffering") the judge jokingly remarked that "well, if someone can see $50 million of some pants...). In short, the "Pants Case", which was properly decided in favor of the defendant last week, will probably be held up for years as an example of how the system is in need of more "reform" (less corporate responsibility) rather than an example of a system that worked exactly as it should. In fact, I wonder if the judge who brought the suit (as a lawyer, not a judge) will be sanctioned or forced to pay attorneys fees for bringing the suit. If he is, expect to read about it on page 10 of the local paper, rather than in the newspapers covering this story as litigation run amok.

But this op-ed, pointed out on the TLC listserve, from the Houston Chronicle got my attention. An excerpt:

Tort reformers want to ban most, if not all, of these lawsuits and they
claim that eliminating them would translate into lower prices for the
consumer. The reasoning suggests that without the penalties associated with
launching an unsafe drug, pharmaceutical companies would enjoy larger
profits and be able to manufacture cheaper aspirin.

The problem with this flawed approach is that it has no end. Without
lawyers, homebuilders could build less expensive homes and not worry about
being sued due to defects in craftsmanship. The price of a pack of
cigarettes would decline because companies would not be held accountable for
the proven medical costs associated with smoking. And our stores would be
stocked with an endless supply of cheap toys because companies could
eliminate "safety" from their list of priorities...

Not every lawsuit is justified, not every verdict is legitimate and not
every lawyer is perfect. Lawyers, like people in any other profession, make
mistakes, and some lawyers file frivolous lawsuits. But our system works
because judges and juries are usually smart enough to recognize these
lawsuits for what they are, and they not only find for the defendant, but
they also sanction the people responsible for bringing the case.

The next time you hear Ann Coulter call John Edwards a "Las Vegas shyster," ask yourself what motives Ann could have for turning public opinion further against lawyers who represent people instead of corporate interests.

What's in it for Ann if the people follow Dick the Butcher's advice to "first kill all the lawyers?" Why would Ann want you to focus on her critics' hair rather than on her own motivations?

Who's really looking out for you?

Bush's Deadly Virtues

Glenn Greenwald, who will be releasing his new book "A Tragic Legacy" next week, has a post up today in which he quotes Andrew Sullivan of the Atlantic quite

There is still a chance to repair the damage -- but given how much we have lost since 9/11, the constitutional consequences of another major attack are likely to be terminal to the American experiment in liberty. If a Giuliani or a Cheney is in power on such a day, we can kiss goodbye to the constitution. . . . America has exchanged some if its basic freedoms for the patina of phony security -- and so easily. The Republican party, to its historic shame, has been the main vehicle for the replacement of doubt, empiricism and calm judgment with certainty, fundamentalism and raw force.

Greenwald goes on the explain the purpose behind his book, and his blog:

The principal value, and the necessity, of examining the underlying assumptions and beliefs which have led us to this point -- an examination which is the primary purpose of A Tragic Legacy -- is not merely to provide some historical account of the last six years. Rather, it is to describe the extreme challenges America faces in recovering from the Bush legacy and, more important still, to expose the corrupt foundations of our political discourse -- ones embraced by the right-wing movement and our establishment media figures alike -- in order to change the terms and outcomes of those debates.

Greenwald goes on to note the futility of debating whether or not Bush's conversion is real or opportunistic, saying "the need to combat and refute the framework he offers -- that those who are committed to Christian piety must join his battles -- is urgent whether or not he personally, deep down, truly believes in those claims." In response, I left the following comment, which I was hoping would prompt a reply:

I agree that, rather than focusing on whether their alleged conversion is real or not, we first need to combat the destructive actions and uncover the philosophical framework that lies beneath leaders like Bush and Nkunda. Whether they quote scripture for devilish purposes or truly believe their unlawful, immoral, unChristlike means are justified is a question for historians as we have bigger, more pressing fish to fry.

Bill Moyers created a series in the late 80's which featured the Rev. Forrest Church (son of Sen. Frank Church of the commission) in which he described our nation's "virtues" as potentially more dangerous than our "sins." He summarized this by warning that "the devil most often appears in drag." Recently, Church commented on the grip of Bush's brand of Christianity on our foreign policy:

American fundamentalism... by trivializing sin into a moralistic catalogue of personal foibles... reserve[s] the badge of real evil for others... Luther put it this way: "The final sin of man is his unwillingness to concede that he is a sinner. ... [R]evelations of prisoner abuse in Iraq... should serve as a reminder to all of us, especially the idealists who drive our nation's foreign policy, of the first law of history: to "Choose your enemies carefully, for you will become like them."

Isn't that a pretty good summary of "the Decider" and his tragic legacy? Rather than contemplating how the sermon on the mount (which ironically I discovered via a reference in Vonnegut's last book) should affect a Christian politician's view of government, he simply says "We don't torture" and forces the soldier who reported this into retirement. (And he does this after viewing a picture of a naked Iraqi decorated by an American soldier with lights made in a Chinese factory to celebrate Christ's birth!) In short, the administration is so blinded an "with us or against us" mentality, that they don't see evil even when it plainly emerges from our side.

Rather than mobilizing the moral authority we held in the pre-9/11 world or utilizing any of the world's sympathy we received as a result of it, they disregard this rule of history, along with the Constitution and the law they swore to uphold. Instead of considering whether their policies made us like our enemies, their only response was (and still is) to accuse anyone who questions them of being a terrorist sympathizer or even an outright enemy.

This policy not only distorts true Christianity and corrupts our nation's legacy, it also plays right into the hands of a fundamentalist Islamic radical who similarly, though mistakenly, believes his own faith permits him to use devilish means to achieve heavenly ends."

Some Pigs are More Equal than Others

Here is a comment I left at David Feige's blog, Indefensible. He was the best instructor I had at NCDC and he has a great piece up at Slate on the Mike Nifong disbarment that came out of the Duke Lacrosse fiasco. My comment tells the story of a complaint I read yesterday, which I don't think the prosecutor has even a good faith belief in. I'll talk to her soon, but unless her mind has changed lately, I believe she's alleging things that even she doesn't believe in.

Should prosecutors be able to do that? (If you hesitated, you better ask yourself why our founders created that pesky Bill of Rights)

Just yesterday I read a motion to terminate parental rights which alleged that my client "inflicted upon the juvenile... serious bodily injury." Yet the pros has told me many times that she doesn't believe my client caused these injuries. In fact, her boyfriend is in prison for causing them.

But the prosecutor here does believe my 22-year old client (whose tubes were tied last year) deserves to lose her parental rights for not getting the baby to the hospital quickly enough. So, believing that she's wearing a "white hat", the pros sees no problem alleging something she knows isn't true to be able go after someone she believes wears a "black hat."

The prosecutor (1) thinks my client deserves to lose her kids and (2) knows she has to prove "serious bodily injury" to get there. So what's the problem?

Like many in the Bush administration, some prosecutors tend to equate adherence to the rule of law with support for child abusers (or terrorists) when a person is changed with child abuse. The law is for people like you and me, not for people like Scooter and them.

I'll keep you posted on how it works out, but it's not looking so good. Yesterday I was told, by the child's guardian ad litem, to "do the right thing" by withdrawing my speedy trial motion, even though the right was clearly violated and that they are not offering me anything other than termination of parental rights.

So, they truly believe I should "do the right thing" and withdraw an obviously meritorious motion to dismiss, even when doing so would be per se ineffective assistance.

Don't mean to vent on your blog, but I'm glad someone pointed out that Nifong is the scapegoat and that the practices will continue unabated. Some pigs are, after all, more equal than others."

What do you think?

Judge Walton's Sarcastic Footnote

It was a victory for the Equal Protection Clause today when Judge Reggie Walton denied Scooter Libby's Motion for Bail Pending Appeal today, meaning that Scooter will begin serving his sentence in a few months rather a few years.

What stood out to me, however, was Judge Walton's sarcastic footnote delivered last week, in which he commented on the sudden involvement of 12 prominent law professors, arguing that the grave constituional issues involved required that bail be set. The footnote reads,

It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.

As background, what Walton was commenting on (and his sarcasm is obvious) is the tactic of having 12 prominent law professors weigh in on this issue, while professing to not be concerned with Scooter but instead purely lending their expertise on the complicated constitutional issues involved. (link to pdf of motion)

But Walton isn't intimidated. He's got Lifetime tenure and he didn't check anything at the door. So he tells them that if the proper application of the Constitution is indeed their motive, he knows they can be counted on, just as quickly, in the future when poor, criminal defendant's case presents an equally compelling issue.

In a week or so, I need to ask for a continuance to submit a brief on a speedy trial issue and think it'll help to bring this up, cautiously, and say "by the way, I know some law professors who might be able to help us out on this, your honor." It probably won't get me anywhere, but I think I have a Walton-like judge who will see the irony and maybe look a little harder at my client's claim, or at least make him laugh a little bit.

Nice to see signs of an independent judiciary, to see some cajones rather than cowardice, in an era of Alitos.

My Thought on 9/11 and its aftermath

David Feige, one of the best instructors at the National Criminal Defense College, runs a blog called Indefensible (he wrote a book with the same name). After reading one of his posts about what it was like to be near "ground zero" that day, I left the following comment:

"Great post, David. It was nice to read a first person account with concrete details like the single loafer, that made it real, even five years later. It sounds crazy, I know, but aside from running to my car to go pick up my daughters from school when they announced that the courthouse was closing, I vividly remember commenting to a fellow public defender that "this will trigger the biggest assault on civil liberties and the Constitution that we've ever seen."

I don't know what made me think of that at that moment. I think it's probably the experiences I've had as a public defender that made me think of the way the Fourth Amendment, that our ancestors fought so hard to achieve and uphold, would continue to become collateral damage in the war on drugs, on crime, and finally on terror.

I probably should have been thinking of something else at that point, and a big part of me just wanted to go home and be safe with my family. But another part of me knew we, as a nation, in our justifiable rage, would probably end up tearing down the sacred documents our country was founded upon in our quest to preserve the "American" way of life, as if it were necessary to tear down the Constitution in order to save it, as Cheney seems to believe.

What really scared me about my comment was my colleague's (also a public defender) response to it: She said, "well, I'd be willing to give up my civil liberties if that's what it takes to be safe." What's scary about that is that public defenders know, probably more than any other profession, the way we must necessarily balance individual rights with the interests of the state and how necessary the exclusionary rule is to ensuring that the police don't overreach and violate the Constitution as they attempt to stop people from violating the law.

My colleague, even though she sees firsthand the way the police will "testi-lie" and justify this as necessary for the "good guys" going after the bad, was still willing to sacrifice liberty for the sake of security. As all public defenders should know, those who make this trade, without even considering the consequences, deserve neither.

And my worst fears were realized. Who would have thought we would seriously debate whether to use torture to extract information, to confront a government that holds prisoners, even U.S. citizens indefinitely as "enemy combatants," that the Attorney General would be threatening to jail journalists for reporting on their government's secret, unconstitutional domestic spying programs, that we would use this day as an excuse to invade a country, unprovoked, to violate the Geneva conventions and alienate the world's empathy while placing tens of thousands of our troops in a quagmire that's killing thousands of them?

Thankfully we're seeing some "pushback" from the judicial branch against a group of neocons who believes in the unitary power the executive branch, and a minimum of pushback from the legislative branch.

But today Time reports that Karl Rove's "hail mary" play to retain power begins, and that the tragic events of 9-11 will be used not only to portray the other party as soft on terror, but to bring members of his own party, who still harbor antiquated ideas about the rule of law or the enforcement of the Constitution, back into line.

I'm fearful of another attack and motivated by the people who so needlessly and violently were murdered that day five years ago. But I'm also worried about where the next five years will take us, and whether that bargain my colleague made in her moment of fear, will continue to cause us to sacrifice the things our country stands for (the rule of law, the Constitution, checks and balances against a tyrant gathering too much power) in the name of making us all feel safer.

Today, rather than watching that fictional propaganda piece the Disney company is providing to the GOP just months before the election, google "Operation Northwoods" and read the recently declassified documents that discuss what bargains an overzealous, fearful military industrial complex was willing to make to motivate the American people into becoming fearful and thus easily manipulated.

As chilling as the events of 9-11 were, consider that the joint chiefs of staff were unanimously willing to murder American citizens in this country to create a climate of fear that would allow us to invade Cuba. Seriously, you can see the documents that verify this online in PDF format.

I'm not insinuating that 9-11 was an inside job, only pointing out that it is documented that the state will at times use the end to justify the means.

The price of liberty is eternal vigilance, and those who are willing to trade this precious, hard-fought freedom for security, (or to allow a small group of men the power to run roughshod over the Constitution and the traditions of this country, limiting liberties here while trying to create democracy abroad at the point of a gun) deserve neither one.

The real test of 9-11 will be the subtle one. The obvious test is whether we will defend ourselves. But the less obvious, subtle test is whether we will unwittingly destroy the American way of life, destroy freedom in this sweet land of liberty, as we hand power over to those who would exploit our fears to enhance their own portfolios and their own grip on power, who would destroy what is good and different about this country in the name of saving it for their gated community neighbors.

A Russian proverb summarizes this idea nicely: "choose your enemies carefully for you will become like them."

John McCain says what got him through torture was his belief that his country was different than that of his captors, that his nation valued something different and unique among nations. What's made us different is our willingness to uphold individual rights and to balance these against the state to keep the state's power sufficiently checked and anti-tyrannical.

Hopefully as a nation we will realize that, more than ever before, our Constitution is under assault, our leaders are hellbent on clinging to power and willing to exploit our fears to accomplish this, and our media not doing its job in educating us about these challenges to our way of life.

It's true that there are enemies out there trying to destroy us and that we need to defend ourselves from them. But it's also true that if we destroy our nation's ideals in the process, they win and we have only ourselves to blame.

Our enemies struck us five years ago, harder than ever before, but it's also true that in the last five years "we have met the enemy and he is us."

Hopefully we can win the War on Terror without killing off what makes us different as a nation.

Hopefully we can defeat our enemies without truly becoming like them in the end..."