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April 2005
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June 2005

Mouth on Meth

Here's a photograph (gross) of what a meth's head mouth looks like. (Via A&C.)

Here is a web site showing what people looked like before, and then after, they became meth heads.

There's no such thing as a "functioning" meth user, unless by functioning we mean, "scratching until the skin is raw; then picking the scabs that form."  Too bad DARE and other anti-drug programs have treated all drugs as the same - bad, evil, destructive. 

Why should teens who know plenty of people who smoked marijuana without having ever traded sex for drugs believe us about the dangers of meth? 

Deep Throat and Reasonable Doubt

What does Deep Throat teach us about trials? 

Well, we now know Deep Throat's identity.  But several journalism students and their professor, weighing and sifting all the evidence, concluded it was someone else.  They were certain that Fred Fielding was Deep Throat.  Deep Throat:Uncovered.  They were certainly wrong. 

I don't want to take shots at the students or their professor, who researched Deep Throat's identity in good faith.  Rather, their extensive research and illustrates how easy it is to pin an offense on the wrong man. 

Because talented and intelligent people who examine all available evidence can reach the wrong conclusion is why we have reasonable doubt.

Deep Throat and the Reporter's Privilege

Benjamin Franklin remarked: "Three people can keep a secret ... if two of them are dead."  Yet Bob Woodward, Carl Bernstein, Benjamin Bradlee, and Mark Felt kept Deep Throat's identity secret for over thirty years.  Deep Throat's identity is revealed

Pending before the U.S. Supreme Court is a cert. petition (here) analyzing - and asking the Court to grant cert. and decide - whether there is a reporter's privilege under the First Amendment.  If not, the petition asks, is there a common law privilege?

Under FRE 501, "[T]he privilege of a witness ... shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience."  The Deep Throat secret is perhaps a good compelling reason for the Court to recognize a reporter's privilege.

It's likely that Mark Felt violated the law when he revealed confidential information to Woodward and Berstein.  Yet, as a society we're far better off because he did.

(Hat tip: Orin Kerr.)

Amusing Fourth Amendment Case

Darrell Quaempts’ trailer home was so small that he could open the front door while lying in his bed. His doing so on one unfortunate occasion, in response to the knock of Yakima Nation police officers, resulted in his warrantless arrest for sexual assault.
The government contends on appeal that when Quaempts opened the door to the officers, he waived any expectation of privacy in his home. It relies on our majority opinion in United States v. Vaneaton, 49 F.3d 1423 (9th Cir. 1995), holding that an individual who opens the door to police officers, and stands on the threshold of his home, may be arrested without a warrant to enter the home, because the threshold of the home is a public place. Quaempts was not standing in the doorway of his home, however, he was in his bed. By reaching over and opening the door he did not waive the expectation of privacy expressly guaranteed by the Fourth Amendment to all persons to be secure in their houses. We therefore affirm the district court’s [suppression] order.

United States v. Quaempts, No. 03-30471, slip op. at 3, (9th Cir. May 31, 2005).

Post-Arrest, Pre-Miranda Silence

In United States v. Frazier, No. 04-1005 (8th Cir., May 31, 2005), a unanimous three-judge panel held that that the prosecution may use a defendant's post-arrest, pre-Miranda silence as part of its case-in-chief.

The following is an example of the line of questioning at issue:

Q [Prosecutor]: Did you talk with Mr. Frazier . . . or tell [him] why [he was] being arrested?
A [Officer]: I just told [him] that [he was] under arrest for suspicion of narcotics.
Q: What was Mr. Frazier's reaction when you . . . placed him into custody?
A: There really wasn't a reaction.
Q: Was he angry?
A: No, sir.
Q: Was he surprised?
A: No, sir.
Q: Did he become combative?
A: No, sir.
Q: Did he say anything to you?
A: No, sir.
Q: Did he do anything when you put the handcuffs on him?
A: No, sir.

At closing, the government noted Frazier's conduct after arrest as one factor that could be indicative of guilt. "If a person has a friend who betrays them, what's the innocent person going to do when they discover they're going to jail. Everybody else is back in Chicago. Are they going to become combative, angry, emotional, demanding? There was none of them from . . . Mr. Frazier."

I originally blogged about this same case, which was originally issued on Jan. 7th, here.

UPDATE: Of course, if the defendant had become, "combative, angry, emotional, demanding" he would have been charged with resisting arrest.

Connecticut Aching To Spoil Another Lake?

Call me a tree-hugging sentimentalist, but the limits of my libertarianism are reached when it comes to open space. Here in Southern New England, there isn't much open space left: Were Thoreau to look for a little peace these days, he'd have a hard time finding solitude.

So I find proposed legislation in Connecticut to make it easier to develop the land alongside of lakes alarming. Paving Paradise

The law of supply and demand will, if left to its own devises, level everything in sight. The marginal utility of another restaurant? For the entreprenuer, high; for those of us seeking to behold a Sun setting over a stand of pine, the cost is infinitely high. There is an economic value to peace and quiet.

Can't we simply designate some areas as off limits to press of development? Do we need to clog every forest with roads? Must each lakeside have an inn with all the noisy clutter that brings.

Strip malls everywhere; open space an endangered thing. I see nothing wrong with a law that recognizes the need to room to breath.

Blawg Review #8

Blawg Review #8 lands on Memorial Day.  Hopefully most of you aren't working, and thus have some time to remember those who died in faraway lands.  Bruce MacEwen and Ken Lammers share two powerful images here and here

Gary Trudeau is using his Doonesbury strip to list the names of those who died fighting in Iraq, and Ted Kopel will read the names of the dead soldiers on his television program.  Before you yell that they hate America for reminding us that people die in wars, read the preface to We Were Soldiers Once...And Young - which I was required to read before becoming an Army officer, and which is required reading at West Point.  In We Were Soldiers, a battalion commander recounts the Battle of Ia Drang, and in the preface to his book, lists those who died in the battle - on both sides.  Freedom, in Iraq or in America, isn't free; we should always remember the cost, not as a partisan ploy, but as citizens respecting the dead.

Today I'll remember the death of 1LT Brian Slavenas, a close friend with whom I attended Officer Candidate School.  He was shot down over Fallujah, piloting a helicopter that, had I not decided to move to California for law school (and instead had attended the University of Illinois), I would have been flying.  Brian was a kind and intelligent person, one whose accomplishments and intellect dwarfed his ego.  We're all worse off that he's not with us.

Now, on to Blawg Review #8...

Babe, I've got your money, don't you worry
. Christine Hurt of The Conglomerate wonders what happened to the $1.4 billion that crooked (my word) investment banks paid to settle SEC conflict-of-interest charges.  So far, "In a nutshell, the SEC has done nothing with federal portion of the money and has suggested that it sort of escheat to the NASD.  The states have put their money to use in such 'innovative' approaches as billboards and PSAs."  Professor Hurt suggests that the SEC fund a high school program on investments.  KipEsquire, "an investment banker who does no deals," suggests that the SEC "give the money to PBS to create some documentaries about financial planning?"

Speaking of crooks, BarBri is being sued for antitrust violations. Well, BarBri isn't being sued for stealing.  Rather, they're being sued for allegedly paying Kaplan to stay out of the bar-review market. Richard Radcliffe summarizes the more damning aspect of the suit.  I've always considered BarBri the most overpriced gig in the United States (they got not a penny from me).  If the allegegations are true, then we now know why BarBri's cost groosly exceeds its value.

At the Greatest American Lawyer, you can learn how to save money by hiring virtual employees.  Speaking of using technology to save money, don't miss this post discussing "the biggest mistake small firms make when using litigation support technology."

Finally, at All Deliberate Speed, Donald argues that living one's principles is often costly - but worth it.

I fought the law, and the lawyer won.  This is an excellent post illustrating why people hate lawyers, but love their own lawyers.  Then again, Morgan Stanely is upset with Kirkland & Ellis - perhaps unjustly.  Read about the Morgan Stanley-Kirkland & Ellis fallout.

The American Bar Association's Law Practice magazine will "feature a year in the life of a brand new blogger in every other issue."

Jeremy Richey discusses the future of legal representation for poor people in Illinois.

Like a virgin's eyes.  Ron Coleman analyzes Hollywood's attempt to keep the smut in the reels.  Like him, I'm not sure one needs to see skin to get the point of Titanic.  But since I'm not a concerned parent (or a parent at all), censoring is unnecessary.

Every time I look at you, I go blind.  The Viagra lawsuits.

My way.  Sandefur is on an indefinite hiatus. It's a loss to the blogosphere, but his reasons are persuasive.  He still has an invitation to post here anytime his fingers get itchy. Fortunately, while Sandefur stopped writing, Ms. Fowler intends to keep writing.  And, Ruth Edlund has a list of things she enjoys.

I heard it on the AM radio.  No, XM Radio; Monica Bay tells us about hers.  I received an XM radio as a graduation present.  Wow - it rocks!

Take this job and shove it.  Strike that, give this lawyer a job, as interviewing sucks.

Tell me lies, tell me sweet little lies, about what going to law school and being a lawyer is like.  I disagree with Ms. Fowler on one point: She says that it's a lie that "grades have some correlation to the knowledge a student has about a course."  I scored a C in Wills & Trusts.  You would not want me drafting your will.  I scored an A+ in Constitutional Law and Civil Rights Actions; you could do worse than having me analyze your possible rights violations.  There are exceptions, to be sure, but no one's ever persuaded me that grades are random or that they don't correlate with one's knowledge.

Every trial lawyer's nightmare - the stealth juror, i.e., someone who lies to get on a jury - was realized in a recent asbestos lawsuit.

That's all for this issue.  I hope you enjoyed it.  If not, there's hope.  Next week JurisPundit will host Blawg Review #9. Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.

Dark Justice -- Chapter 23

One for the Road

Sometimes he would dream about the hand. He would see it crawling, fingernails caked with dirt, and the wrist dragging along like a snail, leaving a trail of gore. The hand would stop, and a forefinger would beckon. "Follow me," he would hear. "Follow me, Petey P." He always awoke with a start when he heard that voice.

"I ain’t goin’ no place," Petrine said as he awoke this Sunday morning. He recalled nothing of the dream. His eyes struggled against the day’s glow.

A bright sun drove the gloom away, and for a moment Petrine felt only warmth and enjoyed being bathed in the vivid colors of the day. Outside his window, a green leaf caught his attention. Lucid, peaceful, even serene. If he looked at it just so, he could feel himself becoming a part of the leaf. He became the life moving through each tiny vein, and for a time he was one. There was no ache; there was no gap in his fabric needing filling with whatever was at hand. In these brief moments, he would smell her. Something like the scent of a baker’s yeast; he could almost see her breast and feel the nipple, large like a melon in his lips. From nowhere this sense of being at his mother’s breast became more real that the room around him. He lolled in the a luxuriant sense that she was back and he was all sated desire.

He reached to his left, and the bed was empty. She had not been there for weeks, and still he reached for her each morning. There was no anger about her absence today. Today there was only something approaching sorrow. He could not name the feeling. He was now having trouble even seeing her face, but certain sensations remained. He was alive with the feel of the small of her back, and he confused that feel with the scent of his mother’s breast.

His hand moved down to his groin, and soon he’d driven away the morning’s blissful sense with his usual urgency.

He dozed for a moment, and startled himself into wakefulness by saying aloud: "I’ve got to find that fucking hand."

Feet to the floor now, Petrine was all business.

The Shark had been worse than useless. Petrine had the guy figured for a coward. Mr. Smart-Mouth litigator could talk the talk in a courtroom when marshals had his back. But stick him in the back seat of a car with a gun and a blade? The guy actually cried. "Don’t cut me, Mr. Petrine. Please don’t cut me." Messed his pants like some freaking retard.

"Can it, counselor," Petrine leered. He pulled the blade from Shank’s face. They were driving south on the Hudson River Parkway. The car reeked of Shank’s bowels. No sooner had Shank heard the click of Petrine’s gun than the flood gates opened.

"Yo, Merv. Open a window, will ya? Smells like a freaking outhouse back here."

"So, Sharkman, what’d you spend for that suit. Eight, nine hundred bucks?"

Petrine had his knife out now, and was nicking the buttons on the jacket with quick flicks of the wrist.

"I, I don’t know."

"I, I don’t know," Petrine mocked him. A high-pitched whine, edging closer to The Shark.

"Well answer me this, big mouth. How many nuts you packin’?" The blade’s tip now in The Shark’s lap.

T’, t’, two," The Shark stammered.

"Wanna keep it that way?" Petrine jammed the blade’s tip up and under The Shark’s scrotal sac. He poked toward his groin.

"Don’t move," said a lump of man sitting across from Petrine in the limousine’s back seat. The man shoved the barrel of a small handgun up under The Shark’s chin.

The Shark was still.

"What I need to know is what you know, see?" Petrine said.

"For example, what about Marvelous Marcus A. He’s your boy, and I want to know what he’s got to say."

The Shark was not quick enough to respond. Petrine jerked the knife’s blade upward. The Shark could swear he’d severed a testicle. He leaned forward now and vomited.

"You know, Sharko, you’re like a freaking environmental catastrophe. Shit, puke. Even a little blood. I got all fucking night, but you’re runnin’ out of ways to make a mess. We gonna talk business here, or do I take you out to meet Jimmie Hoffa?"

The Shark was wiping his mouth with a handkerchief. There was blood on his crotch.

"I," The Shark was breathless with pain and panic," I, I, ... what do you want?"

"This is business, Sharko. We both read the papers, right?"

The Shark nodded.

"So we both know that inquiring minds think I whacked the Fuchs kid, right?"

The Shark paused.

"Right?" said Petrine, flashing the knife again.

The Shark nodded.

"So what does wonder boy say? Am I a killer, Sharko?"

For once, The Shark could find no words.

"Don’t play me, counselor. This might be the last ride you ever take. Am I a killer?"

"My client is not prepared to testify," The Shark said.

Petrine’s left hand gripped The Shark’s throat, and he dug finders into the arteries on each side. The Shark was quickly becoming faint.

"This ain’t no freakin’ courtroom, and I ain’t Judge Judy."

Petrine released The Shark, who gasped for breath.

"Am I a freaking killer?"

"Yes," The Shark said.

"Says who?"

The Shark was about to vomit again.

"Says who, Sharko. Let’s get real here."

"My, my client," The Shark was shaking.

"Yo, Mikey, pull over when we get near the bridge. I think we’re getting some more tossed cookies here."

Soon the limousine pulled to the side of the road. Traffic zoomed by.

"So what does Mr. Marvelous have to say?"

Shank gulped.

"You killed Lester Fuchs."

"Is that so? What else."

"He didn’t know it was going to happen. He says he was just along for the ride. You told him you needed to talk to this kid about something. You met Fuchs at the bar, and took him to an alley and knifed him." The Shark found it suddenly easy to break the attorney-client privilege.

"What else he tell you?"

"There was another guy there with you. You took the body and tried to burn it up."

"He said all that?" Petrine smirking now. "What an imagination that kid’s got."

"He also told me you hid the body somewhere. You did not have all of the body, though. You were missing a hand," The Shark suddenly coy. Always the lawyer, even besmirched in his own grime.

"Where’s the hand, Sharko?" Petrine all business again.

Shark silent.

"Open him up," Petrine said to his colleague.

A big beefy had now grabbing The Shark’s jaws, and a pair of needle nose pliers suddenly pulling The Shark’s tongue.

Petrine traced a line down The Shark’s tongue with the blade of his knife. Suddenly The Shark’s mouth filled with blood.

"One more chance before I take a souvenir. Where’s the hand?"

"He, he, wouldn’t tell me," The Shark leaned forward and spat out a mouth-full of blood. "He wrote it down in an envelope and made me sheal it." The gathering blood in his mouth slurred some consonants. "This wassh a couple yearsh ago when he was firsht a shushpect."

"Let’s go get the envelope."

"I, I gave it away."

"You what?"

"I gave it to my lawyer, and told him to hold it unlessh shomething happened to me."

"Who’s got it, Sharko?"

"Reardon, Jonathan Reardon. In Belle Grande."

"Get it," Petrine snapped.

"It, it ish not sho eashy. He’sh a judge now. He’sh, he’sh in the criminal court. In Belle Grande."

Petrine eyed The Shark. Was this the truth? It sounded like it. How do you get to a judge, he wondered.

The Shark spat out more blood, and sat whimpering.

"OK, Sharko. Let’s say you’re for real. You’re off the case. Let’s just say you’re my lawyer now." Petrine nodded to his colleague.

"Think about this, Sharko. Today you are alive because I believe you. I hope it stays that way. Go get yourself cleaned up, and I want you to remember that we never had this little talk."

The Shark nodded.

"We’re gonna take a little souvenir to keep you honest, Sharko. Call it a retainer."

The Shark nodded again. When he tried to scream, the blood gathering in his throat transformed into in the gurgling or a downing man. Petrine carved out a sliver of The Shark’s tongue, and then stuffed a rag into his mouth. The Shark passed out. When he awoke, he was dumped at the side of the road and left wandering.

Dark Justice -- Chapter 22

The Wages of Sin ...

Associate Justice Harmon Fitzgerald wondered why lawyers worried so about oral argument. By the time a case reached the Supreme Court it had been massaged half to death. There were briefs and arguments in the trial court. Perhaps an intermediate stop in the Appellate Court. And then more briefs for the Supreme Court. Oral argument, in Harmon’s view, was the equivalent of a predigested meal. There might be some nutritional value in it, but there was no point in pretending that it had much taste. Oral argument, truth be told, was most often boring. Today looked to be no exception.

Fitzgerald looked at the clock on the wall of his chambers. Ten minutes to go until court opened. He rose from behind his desk and headed toward the door. He had just enough time to head to the robing room and to don his black robe.

"Mr. Justice, it is your wife on line one," his secretary buzzed through on the intercom.

Fitzgerald paused for just a moment. Eleanor knew that arguments began at ten. Was this an emergency, or had she again lost her way as she stumbled through the weight of grief that had become their daily burden?

Hand on the door, he debated whether to answer.

"Mr. Justice?"

Fitzgerald took one step toward the phone and something like rebellion welled within him. Today he did not feel like shouldering her grief.

"I am heading down to argument, Beth. Tell her I’ll call afterward."

Another small betrayal; another brick in the wall growing between them. As he walked, Fitzgerald toyed with the idea of living alone. He was half way there, wasn’t he? Eleanor had gone to pieces after Lester’s disappearance. She kept her son’s room as though it were some kind of religious shrine. And now the house reeked of stale cigarettes, as did Eleanor. Fitzgerald could almost smell death on her when she walked into a room. And when that football player was charged with the murder, things only got worse. She raved for hours about the injustice of it all. Try as he might to console her, she was becoming, or had she already become, a caricature. He feared that the rest of their lives, the rest of his life, would be a howling shriek of rage.

His footfall was heavy, and he lumbered down the hallway as he headed toward the robing room.

"Good morning, Mr. Justice."

It was Gilda Fruida, the newest member of the court. Forty-six and filled with the wonder of it all. She had been appointed two years ago by Governor Picard. She was against the death penalty, in favor of abortion rights, hostile to insurance companies, and to the left of Ralph Nader on the most issues. Fitzgerald and several of the others called her "Fruit Loops."

"Morning, Athena. And how is the view from Mount Olympus today?"

Fruida had taught classics and law at the University of Wisconsin before returning to Connecticut.

Both arrived in the robing room at the same time.

Fitzgerald didn’t much like having women on the court. For one thing, it made trips to the robing room feel illicit.

The robing room was really a throwback to the 1950s, and was much like the locker rooms of Fitzgerald’s youth. Each justice had a squat locker painted a dull institutional beige. On the outside of each locker, a mirror, and a name plate above the mirror. No one ever really got naked in there. Hooks on the wall would work as well. But each justice had a locker, and each had a name plate and a mirror. They would gather randomly in the room just before argument to transform themselves from ordinary mortals to oracles. But did donning the uniform of justice really require coed facilities? Before Fruida arrived, Fitzgerald and the others would sometimes ham it up, pretending they were about to take the field in a tough game. Now everything was so, well, formal and proper. Fitzgerald fought the urge every so often to pull Fruit Loops’ bra strap back and let it snap back into place. Hell, that would loosen her up, some. Or would it?

On the docket today were three cases. Fitzgerald knew already how he’d vote on each. Attending argument was a mere formality. He might ask a question or two if the spirit moved him. He generally left the questioning to his more aggressive colleagues. The only case that had piqued his interest involved a claim of prosecutorial misconduct. Once again, a prosecutor had draped himself in sordid emotionalism, telling jurors that the victim in a murder case had cried out from the grave to identify the killer and was demanding justice. Fitzgerald found the argument lurid and offensive, but it was just argument, and it was an isolated part of the trial. What’s more, the defendant was as guilty as Eden’s snake. No way he deserved a new trial.

Passing from the robing robe into the Supreme Court chamber itself never ceased to awe Fitzgerald. He felt as though he were walking onto a stage where history was written in bold strokes. He could almost feel the hand of God at work. The architects meant it to be that way. A small forest had produced all the oak in the room. Portraits of the state’s chief justices loomed large on the walls. A plush, regal blue carpet covered the floor, expect for that portion bearing the state’s seal and motto. Qui transtulit sustinet: "He who transplanted still sustains."

But what dominated the room were two murals. One behind the bench at which the justices sat depicted the signing of the what some regarded as the first written constitution. Thomas Hooker, Roger Ludlow and John Haynes gathered together with a handful of Puritans more than 350 years ago to sign the Fundamental Orders, a brief document setting the metes and bounds between the members of the tiny colony.

The other mural portrayed an allegory of education. A child is being taught from the Book of Knowledge. Guardians representing progress and wisdom hover nearby. The light of education pushes superstition and ignorance into the dark. Both murals were the product of a single mind, a painter named Albert Herter who produced them on commission for the state in the early twentieth century.

The murals irked Fitzgerald. They symbolized a schizoid culture that could not decide whether to embrace the enlightenment and its ideals, or to cling to the fundamental truths of revealed religion.

It struck him sometimes that the construction of the courtroom reflected deeper and more chilling truths. As litigants and observers looked toward the justices seated at the oaken bench, their eyes were drawn to a vision of Puritan America and the confident comfort born of the sense that all the important truths had been revealed and need only be discerned by men and women of vision.

The justices, however, knew better. As they sat in their chairs and glanced upward, they saw an allegory of enlightenment. The light of reason a faint beacon in the surrounding darkness. Herter apparently had a deep sense of modernity’s dissonance. The spectators looked toward the justices for confident proclamations of eternal truths. The justices themselves often struggled against the darkness.

As the justices took their seats, Justice Arlen Spiker handed Fitzgerald a note. He looked nervous.

Fitzgerald read the note as the chief justice opened court.

"The Belle Grande police want to question me about the murder of your stepson. Some new witness says he thinks he saw a murder about the time LF disappeared. Says my car was in the area. We need to talk."

Fitzgerald was numb. Just how small a pond was the state? Drop one stone and the ripples cascade into eternity. First Eleanor swallowed by the shadows; now a pall reaching out to claim Spiker. All this on the top of the darkness consuming Fitzgerald. Cold dread and a simple desire to die swallowed Fitzgerald.

His chest was suddenly tight, and his shoulder ached. A heart attack? Would that he were lucky enough to be struck down quickly.

Fitzgerald glanced up toward the ceiling. He was looking at the allegory of education. A child sat, rapt and drawn to the book of knowledge. Superstition fading to black; the light of reason dawning. Such optimism.

All Fitzgerald could think of were words from another book. He could hear them now. Indeed, he could feel them being etched onto his heart by an icy finger. "The wages of sin are death," rang though his mind. "Death." He gave no thought to the rest of this verse. He felt that he was beyond grace.