Crime & Federalism

The New York Transit workers are on strike.  Not only have they damaged commerce, but they're preventing poor people - who need transit the most - from working.  Some person won't be able to make it to his $9/hr. job because the the transit strike.  The transit workers must have it bad, right?  Wrong:

Union members voted this weekend to give T.W.U. leaders the power to call a strike at 12:01 a.m. Friday, after the current three-year contract expires. The union is seeking a 24 percent raise over three years, saying that significant pay increases are necessary because raises in the current contract trailed inflation. Before overtime, the transit workers' base pay averages $47,000.

Most transit workers work overtime, and thus earn an average salary of $55,000 a year.  Plus they get sick days, and they can retire at half-salary after twenty year's service.

That's what I call good money.  It's not get-rich money, but I know a lot of people who would like to have such well-paying jobs.  Indeed, because of the strike, people with lower-paying jobs aren't able to get to work. 

This strike reminds me of the Virginia Slim commercial: Unions have come a long way, baby.  They've gone from helping people obtain safe working conditions to demanding extortionist wages.  I can't say I'll be sorry for whatever happens to the union or workers who turn their noses up at $55,000 a year.

"Am I sorry? If that's what you mean -- I'm not. I don't feel anything about it. I wish I did. But nothing about it bothers me a bit. Half an hour after it happened, Dick was making jokes and I was laughing at them. Maybe we're not human. I'm human enough to feel sorry for myself. Sorry I can't walk out of here when you walk out. But that's all."

The words are those of Perry Smith, convicted and sentenced to death for the murder of four people, the Clutter family, in Holcomb, Kansas, in 1959. They are reported by Truman Capote's In Cold Blood, originally published in 1965.

I was moved to reread this work not long ago while researching sociopathy and borderline personalities. One scholar in the field noted the work's power at portraying the two dimensional world of the sociopath. Utterly lacking in conscience, a sociopath can kill without remorse. The sight of human suffering yields no empathy. It is as though an emotional keel is missing, and the sociopath is drawn along on primitive currents the rest of us can keep in check.

Perry Smith's words leapt off the page, and not because Capote wrote with grace. I am assuming the words themselves were Smith's, and that Capote reported what he heard.

Richard Hickock and Perry Smith were two ex-convicts in search of the good life in November 1959. The search led them to the Clutter farm, and ended on Kansas' death row. Capote's rendering of the crime, the character of the defendants and the legal wrangling resulting in their execution is wonderfully written. But Capote was no lawyer. His account of the post-conviction proceedings does not convince. He simply didn't get habeas corpus, and he had no sense of litigation as a sometimes wasteful blood sport.

Even so, the work is well worth reading. The final sentence of the book is absolutely perfect, and must be saved for last. If you are not clear what a sociopath is, read In Cold Blood. Even if you are confident that you know a sociopath when you see him, read the book any way. I last read it in college, reading it again was like a reunion with an old friend.

The latest Blawg Review, which rhymes, is available for yuletide reading here.  Speaking of Blawg Review... Blawg Review will host the Blawg Awards 2005 next week here.  Although I help out with Blawg Review (mainly by linking weekly and sending 5 or 6 post recommendations), I have no idea what the award show will entail.  I'll also be on vacation - far away from a computer - the day the awards are posted.  There will be a link here to the awards, though, as I can set posts to publish in the future.  (Which is why, even when I'm on vacation, you can find me at C&F.)

Doug Berman offers these interesting thoughts.

I've obtained a copy of the attorneys' fee application in the Michigan wine case.  (It's here.)  The entire motion is interesting reading, as it demonstrates how many hours it takes even top Supreme Court lawyers like Ken Starr and Katheleen Sullivan to brief and prepare for an argument in a Supreme Court case.  (Starr billed for 53 hours on the case, Sullivan billed for 96, and Starr's associates spent 155 hours on the case.)  According to the fee application, the plaintiffs' lawyers spent over 1,100 hours preparing the case for presentation to the Supreme Court:

Plaintiffs have requested an award of attorney’s fees for 2176.55 hours of legal work. The affidavits and time records submitted as exhibits 1-15 show that plaintiffs’ attorneys devoted approximately 160 hours to preliminary fact and legal investigation, 80 hours to discovery, 420 hours to ten pretrial motions including five dispositive motions, 300 hours to researching, briefing and arguing the case in the Sixth Circuit, 1100 hours for proceedings and argument in the Supreme Court, and 90 hours on negotiations with state officials and final proceedings in the District Court. These numbers are approximate because it has not always been possible to assign time expended to one category rather than another where they overlap.

Also of note is that one of the lead lawyers is a law professor.  The award of attorney's fees should nicely augment his salary.

Wow, wow, and wow again:    

Plaintiff alleges that Citibank financed the purchase of her automobile pursuant to a conditional sales agreement. After she defaulted on her payments under the agreement, Citibank referred her account to a collection agency. As Citibank’s agent, the collection agency entered into a repayment agreement, which required the plaintiff to make a substantial initial down payment, and thereafter to make regular monthly payments. Notwithstanding the agreement, however, Citibank notified local police that the automobile was stolen, and the plaintiff was subpoenaed to appear at the police station. Upon her arrival, she was placed under arrest and her automobile was confiscated. After consulting the district attorney’s office, however, the police caused the criminal charges against plaintiff to be dismissed for lack of probable cause. The district attorney further directed that the police return the automobile to plaintiff.

Burgos v. Citibank, No. 04-2193 (1st Cir. Dec. 19, 2005).  The First Circuit properly dismissed the plaintiff's case, as she sued under a banking law.  UPDATE: The panel held that the case could go forward.  I mistakenly reported that the panel dismissed the case.  This is an interesting result.  Ordinarly, banking legislation is drafted broadly so that customers' state law claims will be dismissed as pre-empted by the federal law.  But here, it seems the the banking law's scope was broad enough to encompass the bank's conduct, and thus cut against the bank.  I don't know if I've ever been so pleased to be proven wrong.  Why she didn't sue the bank under a viable legal theory such as intentional infliction of emotional distress is one of the many mysteries of life.

I cruised through the local magazine shop the other day and a new publication caught my eye: Jungle Law. The title was intriguing. Jungle sounds so, well, primitive. And a feature story on winning trial tactics. I can use all the help I can get, so I paid $3.95 for a copy.

Yech.

I guess I am in the wrong demographic. I don't want 101 ways to fritter away disposable income. I don't need a guide to expensive Bourbons, travel tips, a glowing and well-illustrated feature on smoked salmon appearing under a caption entitled "The Life." I sure as Hell don't need a $700 suit, $400 cuff links and $85 shirts. And do I really need to see an elevator-seduction scene of some child (hovering somewhere in her twenties) who looks as though she could be a contemporary of my daughter showing enough leg to make me feel embarrased to have the page open on my desk.

It wasn't all banal. There was a fun feature on what the hand-writing of the Supreme Court Justices tells us. Guess what? Scalia has issues. And the tips on winning trial tactics were all reliable.

I'm not claiming the magazine is new. I just hadn't noticed it before. I doubt I will notice it again.

In case you hadn't noticed, we are winning the war in Iraq, or so says President Bush. Presumably, that makes us freer and more secure than we were before. And what of the secret surveillance of our telephone calls and emails, Mr. President? Is that an increase in liberty?

Last week, The New York Times reported that the administration had authorized eavesdropping on American citizens since shortly after 9/11. Oh, don't worry about chatting with Aunt Mary over in Toledo during the holidays. The government is only interested in communications reaching overseas, and one need chat about more than recipes for apple pie. Our government eavesdrop only on suspected terrorists, or so we are told.

News that the administration viewed the Fourth Amendment's warrant requirement as a mere option did not surprise me. We have detained people indefinitely without trial and scoffed at international law. Why not thumb our nose at the Constitution, too? Better dead than red, we said years ago. Now we assert there can be no error in the war on terror.

No, what stunned me wasn't the fact that the President of the United States can order that intelligence agents break the law. And I was not surprised that administration toadies will carry out these orders.

What stunned me was that The New York Times, a paper which proclaims that it will report "All the news that is fit to print," sat on this story for one year. Why? The administration asked that it do so. And when the paper finally reported the story, it still withheld details and names of those who stood by while the president violated the law. Call the editors victims of the war on terror.

Franz Fanon once wrote a little book entitled The Wretched of the Earth.  Terror, he noted, was a useful political tool in the hands of the powerless. Make a people fearful, undermine their confidence, and they will turn on themselves and their values. A terrorist needn't command a nation, he need only strike a responsiveness enough chord to make a people forget themselves and their values.

That's what the terrorists who destroyed the World Trade Center did. Let's add this name to the roll of those felled on 9/11: Arthur Ochs Sulzberger, Jr.

So today we awaken to a world in which the president can appear on television to tell us we are winning a war amid the severed limbs and shattered lives of daily suicide bombings. And this president seeks to secure broader powers at home, all the better to protect us. Death becomes victory and governmental power is liberty.

The president tells us military commanders in Iraq report that we are winning. I guess the art of declaring victory is a lot like the art of war, an opaque and esoteric enterprise understood only to those practiced in skills the rest of us do not possess.

I am not feeling very triumphant today. A Constitution I revere is being mauled by a man who swore an oath to uphold it. And most Americans think that's just fine and dandy. Congratulations, to the terrorists on a job well done.

Michigan and several other states had laws that discriminated against out-of-state wineries.  Several plaintiffs sued under 42 U.S.C. 1983.  Rather than settle, Michigan vigorously defended its special-interest legislation.  After six years of legal warfare, the Supreme Court ruled against Michigan in Granholm v. Heald.

The plaintiffs are now seeking legal fees.  Under 42 U.S.C. 1988, a prevailing plaintiff in a Section 1983 action is entitled to recover reasonable legal fees.  Michigan taxpayers are now potentially on the hook for $1.3 million in legal fees, including fees for some of the big guns brought in to attack the legislation at the Supreme Court level.  Interestingly, Ken Starr is only billing $500 an hour for his time.  I  suspect that someone with his talent and experience bills his private clients significantly more for his time.  Kathleen Sullivan is seeking $57,000 in legal fees, and Starr's former co-counsel in numerous Supreme Court cases (Kannon Shanmugam - who I think is now at the Solicitor General's Office) billed $22,000.  Top talent costs a lot of money.

Incredibly (or not) Michigan has enacted yet another discriminatory law, and thus Michigan taxpayers might face another huge legal bill.

(Hat tip: How Appealing)

In 2004, Florida judge John Soop ordered 11 people into jail for failing to appear for traffic court.  The 11 traffic miscreants failed to appear because courtroom staff gave them wrong directions.  When a couple of judges said "Hey, man, these people received bad directions; they don't belong in jail," the judge took a lunch break, and ate popcorn.  He also shopped for parts for his trailer.  But it's not his fault.  The judge, who has a history of judicial misconduct, has offered this defense: I have ADHD.

Putting aside the ADHA issue, the article is amusing because the judge, of course, takes full responsibility for his cruel deeds, all the while fighting like hell to keep his judgeship.  I guess accepting responsibility means having to say you're sorry, but never having to suffer any consequences.