Friday, June 25, 2010

keeping a straight face

[nota bene: legal analysis is oversimplified for the purposes of this story]
In the jurisdictions in which I practice, there are loitering statutes that are very stringently enforced.  I think it's a broken-window type thing, where they don't want riff-raff hanging around in "high-crime areas", being up to no good, but it also gives the police a reason to search and arrest people who are literally doing nothing - suddenly doing nothing is not only reasonable suspicion, but also a crime.  Often people have a valid explanation for their presence which results in inadvertent burden-shifting - defendant has to prove that in fact he was not committing a crime because he was [talking with a friend he ran into outside the store, waiting for a ride, etc].  Generally on these types of cases, we as defense attorneys try to elicit and verify as many of these facts as possible.
As I was going over one of these cases recently with a client, I was reading to him the 3 different [quite amusing, but not to be divulged here] reasons he provided to the police when they stopped him. 
Client:  Naw, that's not what I said.
WOTL:  Ok, so what were you doing at about that time on that date?
Client:  I was meeting a guy to haul trash for him.  They were doing some construction in the building and he was going to give me a few bucks to clear out the basement.
WOTL:  This guy lives in the building?
Client:  Yeah.
WOTL:  Apartment number?  Floor?
Client:  Uhhhhh, 5 East.
WOTL:  5 East?  You're sure?
Client:  yeah.
WOTL:  The police said you told them 4 North first, then 3 West.
Client:  No, no, no.  It's 5 East.  I'm positive.
WOTL:  Okay, what's the guy's name?
Client:  Um, Donovan.  Donovan McNabb.
WOTL: ................ [slowly] the guy you were doing work for is... Donovan... McNabb?
Client:  [exasperated by his attorney's sheer stupidity]  I told you, he asked me to haul the trash out!  That's why I was there!
Do you:
1.  Share this with on the record in an attempt to show the judge how clearly misguided and false the allegations are against your client, while trying not to giggle?
2.  Send out an investigator to immediately find this witness, assuming that there must be many, many Donovan McNabbs in the world and that the name is mere coincidence, and not a bold-faced lie?
3.  Gently suggest that perhaps community service would be the quickest way to put this case to rest?
And of course, if you're a public defender, the answer is:  all of the above.  Yeah, I sent my investigator out, and yeah, couldn't find Donovan McNabb, and yeah, I fought on the record for my client with mostly-feigned righteous indignation while sharing that story and yeah, no one believed it for a second and yeah, my client resolved the case with community service. 
Judges can get really fired up when you argue these things on the record, and then they start cross-examining you as though YOU were the one who came up with that brilliant nugget.  I love that part of my job is standing there defending this with a straight face.  Yup.  Donovan McNabb.  That's my story.  Stickin' to it.

Tuesday, June 08, 2010


I am going to start by saying: I voted third party in the last election, and will probably continue to do so as I do not feel particularly strongly affiliated with the current political parties.  So I was disgruntled before it was cool to be disgruntled.  I exude a pretty sincere form of surly, and my attitude towards politics is consistent with that.

Now you know.  And now I opine the following:

Obama is not a socialist.  And unless I'm missing a huge piece of this legislation wherein the government announced it is taking my paycheck and instead paying me in labor credits, the health care bill is not an indication of socialism.  At least, it's not any more socialist than TANF or Social Security or Medicare.  I feel compelled to announce my opinion on this matter because I recently had a conversation with young, very smart, incredibly well-educated people who announced that Obama is a socialist, and gave the health care bill as an example.  I thought this was an accusation lobbed mostly by sensationalist political media folks, because that's what they do.  But when I discovered that people I regard as smart, good people were saying such things, well, it somehow validated this as an opinion that real people hold, and I felt compelled to respond, because I have an opinion too. 

Stating that someone is a socialist puts a label on a person that just makes everything categorically BAD, therefore making it impossible to argue any actual merit.  I wonder how we came to accept such firmly entrenched notions that socialism and communism are bad.  You cannot be a government employee if you are a Communist.  CANNOT.  PROHIBITED.  I am neither a socialist nor a communist; I have pretty strong libertarian leanings - but I balk at the categorization of other people's political beliefs as being "bad" or "prohibited."  So by labeling this bill, or the President's support for it, as a "socialist" act, all that gets us is a label that it is "bad," without ever getting to what about the bill makes it bad.  Or socialist.  If the health care bill nationalized health care, in the sense that all medical providers were now declared government employees, and all hospitals became federally owned, etc... well that sounds like socialism, at least as I understand socialism. 

But ok, there are different forms of socialism, and maybe what we don't like is the manner in which government has regulated health care now, and maybe that's socialist.  I can almost accept that belief, except that government regulates a lot of industries.  So what about this health care bill crosses the line from regulation, which Congress is doing every day in many areas of commerce, into socialism?

I actually care very little about the answers to these questions.  My point is, the fact that you disagree with the health care bill does not = socialism.  It's just name-calling.  Name-calling avoids intelligent discussions about potential valid disagreements.  I like intelligent discussions about valid disagreements because I have learned the most from them, and also have found them to be persuasive.  When I hear a person whom I respect opine in a way that sounds logical, that challenges me to opine in an equally logical manner, and it challenges me to think about why I disagree with such logic, and whether I should.  So what I hope and expect from my smart and well-educated peers is just that you can tell me why you disagree with the health care bill, and not just throw around bad names for it.  Especially since I think it's a silly (as in unintelligent) premise that "socialist" is an insult.

up next:  why BP is not "Obama's Katrina."  [I started writing on this, but the Glee season finale is coming on soon.  so maybe tomorrow I'll finish that thought...]