|The whole scene from the execution, taken from a cellphone camera. Defiant to the end, Saddam Hussein mocked Shiite cleric Muqtada al-Sadr moments before he was hanged.|
Hat tip to Appellate Law & Practice.
Keywords: saddam hussein iraq bush execution hanging hanged executed
Sunday, December 31, 2006
Saturday, December 30, 2006
Let me start thusly: he was guilty, of that there can be no doubt. He was hanged for a massacre that had occurred over 20 years earlier, and the proof was incontrovertible. Despite that, I have serious reservations about the fairness of his trial- I find it an outrage that two judges were removed midstream for being insufficiently partial to the prosecution, and only a fool would argue that the outcome was not preordained. The procedures in place were substantially less rigorous than those at Nuremberg, and no one at Saddam's trial possessed even a fraction of the stature of Justice Jackson.
In the end, though, I am struck by Saddam's, well, humanity at the very end. The Bush Administration tried to demonize Saddam, a cross of Satan and Fonzie- snap his fingers and people die by the thousands. But when you read something like this, "'He just gave up,' said Mowaffak al-Rubaie, Iraq’s national security adviser. 'We were astonished. It was strange. He just gave up,'" you realize that he was just a man.
The usual people reacted in the usual ways.
The execution punishes "a crime with another crime," said Cardinal Renato Martino, Pope Benedict XVI's top prelate for justice issues, in an interview published Friday with the Rome newspaper La Repubblica. "The death penalty is not a natural death. And no one can give death, not even the state," Martino was quoted as saying.
"We oppose the death penalty in all cases, regardless of the individual or the crime," said Rob Tinline, spokesman for the British Foreign Office. "[But] it's an Iraqi trial, with Iraqi defendants, in an Iraqi court — it's a decision for the Iraqi authorities."
"Saddam's heinous crimes against humanity can never be diminished, but he was our ally while he was doing it," he said Friday. "Saddam as a war trophy only deepens the catastrophe to which we are indelibly linked."
I do not claim any special knowledge of the hereafter. I do not know whether Saddam will be rewarded with virgins and ambrosia, or burn in hell, or simply fade into the black. I do know that he was no monster. He was just a man. He both rose and fell at the behest of my government, and you can add one more body to the count that will stain my great nation's soul.
Friday, December 29, 2006
No rush or anything- just reiterates my belief that it was a kangaroo court from start to finish.
Thanks to Talking Points Memo for pointing the way on this. The FEC has handed down over $6 million in civil fines for campaign violations. What I find so interesting is that Freddie Mac was fined about $3.8 million.
Freddie Mac is officially known as the Federal Home Loan Mortgage Corporation. It was created by Congress, the President appoints five of the eighteen Directors, and it is extempt from taxation by statute. In other words, Freddie Mac is not just any other company- even if it is not part of the government (because it doesn't receive tax money, and is a publicly traded corporation with private shareholders), it has no existence apart from the government.
So here we have one government entity levying fines against another entity (kinda) of the government. Since Freddie Mac owes its existence to Congress, I can certainly understand that they have an interest in influencing elections. However, this strikes me as little more than a circle jerk- Freddie Mac makes improper contributions, the recipients of such contributions win election, the government fines FM, the fine money gets deposited in the Treasury, and then gets funneled back to FM through the two Federal oversight agencies Freddie Mac answers to.
If this seems a little conspiratorial, I admit that it is. But it just makes my eyebrows raise a wee bit....
Thursday, December 28, 2006
Police in Hamilton, Ontario had a conundrum on their hands- how to catch a killer when there are no witnesses, only a grainy security video that shows a person of interest, and not even his face?
Post it on YouTube (the video appears to have been removed from YouTube, but I found at another site, which I have to say, is nowhere NEAR as good).
George Gallo, a 24-year-old man, turned himself into police about two weeks after a 72-second surveillance video from the concert site was posted online.
Police say the clip didn't lead to any witnesses coming forward, but the extra attention paid to the case because of the use of YouTube likely encouraged the suspect to turn himself in.
This is what life is like now- the mere existence of a video that doesn't show anything, and that didn't actually produce any witnesses prompted someone to turn himself in. It is a lesson that Michael Richards learned the hard way- you are always on camera, and the entire world is watching.
There are other examples of investigators using YouTube to find witnesses, and this is probably no different from police releasing video to TV news in the search for leads, but if it worked once, you can be certain it will become more common.
The New Jersey Appellate Division has affirmed Rabbi Fred Neulander's life sentence, twelve years after Carol Neulander was found bludgeoned to death. The opinion is legally uninteresting because this was a very clean trial, but the Court recites the facts in a literate and novelistic way.
In March or April 1994, defendant asked Jenoff if he would "kill for the State of Israel." Jenoff answered that he would. Jenoff explained that defendant became the most important person in his life, other than his own son. When Jenoff thanked defendant for "everything . . . he was doing" for him, defendant responded, "maybe some day you could do a favor for me." Jenoff told defendant he would do anything he asked.
In late April 1994, defendant again raised the topic of Israel and told Jenoff that an evil "enemy to the State of Israel" lived in Cherry Hill. Defendant explained that this person was "so bad" and should be "killed." A week later, in early May 1994, they again discussed this "enemy of Israel," at which time defendant looked at Jenoff and asked if he was "man enough to kill" the enemy. Defendant grabbed Jenoff's elbow and asked, "am I talking to the right person?" Jenoff stated that he was scared, but said "yes, Rabbi." Defendant then drove Jenoff to his home and said the person he wanted him to kill was his wife, Carol.
I was in law school at the time of Rabbi Neulander's first trial. The campus was only a few blocks away from the Courthouse, and my trial ad class took place in the Courthouse itself after hours. One of my teachers was a former prosecutor in Camden County, and was the local commentator for Court TV's coverage. I know every one of these names, and I have met some of them at law school functions. I don't say this to boast, but rather to emphasize that I know this case well.
The first jury was out maybe four hours when they sent a message to the Judge that they were hopelessly deadlocked and wanted to know how much longer they would have to pretend to deliberate. There was improper jury contact by the press; and a most eloquent plea for mercy during the penalty phase.
After twelve year, I am glad that it has come to an end. In the final analysis, he was really just another greedy philanderer, albeit one with money and degrees. Every time someone does something stupid in the name of love (or sex), one of my coworkers just rolls his eyes and says "Mr. Dick is a godless pig."
A godless pig- that's all the Rabbi is. Good riddance.
A few weeks ago, I complained about the difficulty of doing legal research for free, despite the fact that the law itself is free and public. It makes no sense to me that we should have to pay a company like Lexis or Westlaw for the privilege of finding information that is generally available free of charge somewhere.
So, now I am doing something about it. Jimmy Wales' new for-profit company Wikia offers free topical wikis on everything from the Transformers to cognitive linguistics. So naturally, there is a law Wikia. I have started working on articles for the legal wiki, focusing so far on my area of expertise, i.e. criminal. Wikia is also starting a new service in the next few weeks called OpenServing, in which users develop the content and Wikia provides the backend. The OpenServing site should be live in a few weeks.
Using the collective knowledge capital of the legal web, it should be possible to offer a meaningful research alternative to the subscription services. I'll keep you updated.
Wednesday, December 27, 2006
The 38th President of the United States has died. He was 93.
Appointed, not elected, to the Vice-Presidency he would ascend to the Oval Office in the wake of Watergate. Most controversially, he pardoned President Nixon, a move that probably cost him election proper.
It is no secret that I am a hard-core leftist, liberal being not strong enough a word to describe me. Nevertheless, I have always held Gerald Ford in high esteem. When called upon to serve- in war, in Congress, in the White House- he did so with honor and diligence. He led the country through dark times, probably knowing that he had inherited a no-win situation, and yet did so without complaint.
In his later years, he would decry the bitter partisanship that has come to define our politics. It would seem that the lesser women and men stalking the halls of Congress these days take a perverse glee in backstabbing and rancorous discord, never so much as taking a social lunch with a member from the opposing party. This was not always the case- Ford was elected to Congress the same year that a young Jack Kennedy was first elected. They became fast friends, leaving the politics to the floor of the House, understanding that policy differences need not be personal differences.
This country could use another man like him.
Tuesday, December 26, 2006
The ACLU and the Mexican American Legal Defense and Education Fund have filed suit against the City of Farmers Branch, Texas alleging that its ordinance prohibiting renting to illegal immigrants is unconstitutional.
My response- well, duh. It is discriminatory- it is a two-bit jerkwater town trying to set immigration policy on its own, and it is just racist, unlike a similar ordinance in Hazleton, Pennsylvania that apparently also applies to Santa Claus.
NOTE: The town fathers in Hazleton have referred the above website to the police for investigation, because it seeks donations, presumably to defray the costs or the domain and hosting. Sheesh, some people have no sense of humor- particularly when calling attention to their bigotry and foolishness.
Those Iraqi judges sure know how to do what they're told....
I will not shed a tear for that man when he is strung up, but I might shed a tear for justice or the rule of law. The only thing missing from that courtroom was the kangaroo itself.
Back to work- well, not work work. This work. But first, a few meta-updates about either me or this blog (AKA, shameless pimpery).
Since Public Defenders are the dirt of the profession, there was not a single PD blog award during the annual year-end navel gazing over at Blawg Review. So, Greg over at PDStuff have announced Public Defender Blog Awards. I am nominated in a number of categories, and while it is an honor just to be nominated, you should vote early and often. (Hey- if Bashman could campaign vigorously for second place....)
I have been invited to guest blog for PoliticalGrind.com. I am excited and definitely looking forward to it, since my first attempt at topical blogging was decidedly political. Look for that in the New Year, and I will of course provide updates about that here as well.
I have finally succumbed. After much consternation and resistance, I have gotten on MySpace, mostly so that my sisters would stop bugging me about it. While I still believe that MySpace is petri dish of bad web design (EMBEDDED AUDIO BLASTING! Backgrounds that overwhelm the content! Bad CSS! PpL H00 WrIt3 lIK3 dis!) I am always looking for mew friends. Add me there, or go to my other (better) social networking sites- flickr, 43Things, or del.icio.us. And of course, there is my personal blog, The Mayor of Nowhere.
According to MyBlogLog, someone linked to me from Business-Garden.com, a business blog, written entirely in French. While I have no idea how they found me, I always appreciate the link!
Thursday, December 21, 2006
Not there hasn't been stuff to write about. Injustice in Georgia. Death penalty controversies. Supreme Court Magic: The Gathering cards.
Hey- I've been busy. It's the holidays- and I've actually closed a whole bunch of files, no less (meet 'em and plead 'em....).
I'm just sayin'....
Saturday, December 16, 2006
Yesterday, Constant Partial Attention (which actually sounds like what most attorneys jurors of paying to the case) wrote a lengthy and informative piece about her experience serving on a jury in a drug case.
As you're walking into the jury deliberation room a man is already volunteering to be the foreman. You know nothing about him but would rather not be the foreman yourself so when he asks if anyone has any objections, you say no. And so he proceeds to be a crazy, raving lunatic who keeps using the phrase "skimpy police work," doesn't seem to have any actual point beyond that and will listen to no one but himself. The only other person in the room who doesn't think the foreman is crazy is a mild mannered lady who is not very bright. You know she is not very bright because even though it has been stated about four thousand times that the picture that was admitted into evidence of the bag of rock cocaine is the actual bag of rock cocaine found at the scene, (Why wouldn't it be?) she claims that she heard it was a different bag of rock cocaine and requests a read-back of the testimony. Which takes about half an hour longer than you actually have to deliberate. So you walk the six blocks, three of them up hill, back to your car, drive home in rush hour traffic and prepare to come in the next day, hoping it will be your last.
Most attorneys have bizarre and complex theories about jury selection, but the truth is that we all have no idea what makes jurors tick. Once the case leaves your hands and gets into theirs it is all just a roll of the dice. I have won cases based solely on jurors following their own hunches and coming to conclusions that neither side thought were possible.
On the whole, I get why we have juries in this country- before the state takes a man's freedom, it needs the permission of its citizens. "You say this man committed a crime? Well, you need to prove it to us first." But in actual practice, it amounts to a sing and dance, and a hope that they get it right.
Friday, December 15, 2006
The Court returned from its summer recess in something of a docket crunch, and its pace of granting cases slowed considerably from there. By this point last Term, the Court had granted 26 cases (10 from the “Long Conference,” plus 16 more in the first 6 Conferences of the Term). But this Term, the number is only 18 (9 from the long conference, but only a total of 9 in the six succeeding Conferences).
Then this morning I found this item at fourthamendment.com (perhaps the best site on the net for search and siezure).
On July 7th, I said that the number of U.S. District Court cases on Lexis would hit 90,000 this year. It reached that number today. 2005's total was 45,000; 2004's was 24,000.
This does not seem to compute. The lower courts, particularly at the trial level, do not generally publish opinions unless the case is likely to result in some precedent at higher levels. However, the Court at the highest level does not seem to be setting any precedent. Even the cases the Court has decided lately are practically useless as precedent- Musladin comes particularly to mind (my prior coverage here).
It almost makes you wonder if the lower courts are trying to provoke some reactions.
To Gideon's Guardian, a fellow PD somewhere who saved his client's life.
I never thought I'd be thrilled to hear the words, "life in prison without the possibility of parole" but I am.
And I am thrilled for you, too. Pour yourself a drink and a take a rest, you've earned it.
Thursday, December 14, 2006
Volokh has obtained the transcript from a hearing in which a small claims judge gave a Muslim woman two choices- testify without her veil, or have her case dismissed. I previously wrote about this in October.
THE COURT: You need to stand over there. Ms. Muhammad, did my court officer talk with you about taking your veil off?
[MUHAMMAD]: Yes, sir.
THE COURT: Okay, and what is your suggestion or what are your thoughts on that?
[MUHAMMAD]: I said, "No, I can't."
THE COURT: Well, let me explain to you why I think you have to do it and then you tell me why you don't have to do it and then we'll try and make a decision as to how to proceed.
[MUHAMMAD]: Yes, sir.
THE COURT: One of the things that I need to do as I am listening to testimony is I need to see your face and I need to see what's going on and unless you take that off, I can't see your face and I can't tell whether you're telling me the truth or not and I can't see certain things about your demeanor and temperament that I need to see in a court of law, okay, so you tell me why is it that you don't want to take your veil off.
[MUHAMMAD]: Well, first of all, I'm a practicing Muslim and this is my way of life and I believe in the Holy Koran and God is first in my life. I don't have a problem with taking my veil off if it's a female judge, so I want to know do you have a female that I could be in front of then I have no problem but otherwise, I can't follow that order.
THE COURT: Okay. Well, no, I don't have a female judge. I'm the Judge that's here, okay, and second of all and I mean no disrespect to your religion, but wearing a veil I don't think is a religious thing -
[MUHAMMAD]: Well, that's your preference, sir.
THE COURT: — I think it's a custom thing and –
[MUHAMMAD]: That's your preference.
THE COURT: First of all, hold on. Hold on. It's not my preference. I have no clue about any of this information, okay --
[MUHAMMAD]: That's what I'm saying.
THE COURT: — but this has come up in my courtroom before, and in my courtroom before I have asked practicing Muslims and the practicing Muslims have told me that, "No, Judge, what I wear on top of my head is a religious thing and what I wear across my face is a non-religious thing. It's a custom thing."
[MUHAMMAD]: Well, that's not correct.
THE COURT: Well, this is what they have told me and so that's the way that I am running my courtroom and that's how I have to proceed.
[MUHAMMAD]: And I respect you, Your Honor, and --
THE COURT: Fantastic.
[MUHAMMAD]: — I would like to ask for a change of venue.
THE COURT: Well, you can't have a change of venue. You're the one who decided to file the lawsuit, okay --
[MUHAMMAD]: Yes, sir.
THE COURT: — and so that's where we are today. So you have a couple of options today as far as I am concerned. You can either take it off and you can give me the testimony and after the hearing is all done and over with and if you want to put it back on, I don't have any problems with that but if, in fact, you do not wish to do it, then I cannot go forward with your case and I have to dismiss your case.
[MUHAMMAD]: Thank you, sir. You have a great day.
THE COURT: Okay. Well, first of all tell me what you wish to do.
[MUHAMMAD]: I wish to respect my religion and so I will not take off my clothes.
THE COURT: Well, it's not taking off your clothes. All I am trying to do is ask you to take off the part that's covering your face so I can see your face and I can hear you and listen to you when you testify, and then you can put the veil back on. That's all I am asking to do, ma'am.
[MUHAMMAD]: Well, Your Honor, with all due respect, this is part of my clothes, so I can't remove my clothing when I'm in court.
THE COURT: Okay.
[MUHAMMAD]: Thank you.
THE COURT: You're welcome, ma'am.
Okay. Enterprise, case is dismissed.
After reading the transcript, it seems like the Judge was fair and respectful, and as I noted before one's facial mannerisms are vitally important to one's credibility. This is why poker players hide behind sunglasses.
However, I am concerned about the propriety of a Judge deciding what is religious and what is customary. What constitutes religious adherence is, at a certain level, a matter best left to the adherent. Is self-flagellation sacrament or custom? The answer, I would argue, is that it depends on whom you ask.
Courts should not be in the business of deciding what constitutes a genuine religious belief, or whether those beliefs are sincerely held- simply not their bailiwick. I don't know anything at all about the case, and it is hardly a matter of vital importance, but I hope she gets her day in Court.
Apparently, it is now illegal to melt your nickels and pennies. Turns out the metal is worth more than the face value of the coin itself. So instead of coming up with a newer and better method to dole out money, we instead protect the inefficient present system?
Puts the phrase law and economics in a new light...
Posted by Charles Thomas at 2:45 PM
Wednesday, December 13, 2006
As a defense attorney, I have represented both snitchers and snitchees. Cooperating with the police is a risky business, for obvious reasons, and in the current climate on the streets it could be fatal if an informant's identity is revealed.
Which is why even I find this to be an outrage- for only $10 a month, you can subscribe to a national database of known informants. The operators of this site- whomever they are- had better not hope any one of these people gets killed. They would definitely be civilly liable under the Anarchist's Cookbook theory, and it would not take much for a smart prosecutor to make out a criminal case- I think it would survive prima facie for at least accomplice liability.
Tuesday, December 12, 2006
Part of what makes the Web 2.0 so wonderful is its bottom up, viral nature. Somebody has an idea, then shares it- peer to peer. Few things are as effective as saying "I think this is cool- you should check it out."
The top down mainstream marketers have figured that out too. Jason Calacanis reported today that PR firms are paying highly ranked diggers to submit and/or digg up stories. Netscape officially responded by threatening to ban any users founds to be on the take.
Now, the feds are going after them too. The FTC announced that companies using paid P2P marketers must disclose the relationships. Theoretically, any word of mouth marketing could be affected- from fake viral YouTube videos, to people chatting up a movie. It also means the certain end of pay per post.
As a blogger, I say it's about time. These kinds of scams are an insult to true sharing; but as a lawyer, I have to wonder how the FTC will regulate it. Will it be the digger's duty to disclose? Who will pay the penalties? How can the government tell someone that they can't talk about something- not make sales claims, just talk about something? Someone will challenge this for certain.
Monday, December 11, 2006
Remember when the new Chief Justice said that he preferred to decide cases on the narrowest grounds possible so to assure substantial majorities?
"If it is not necessary to decide more to a case, then in my view it is necessary not to decide more to a case," Roberts said at Georgetown. "Division should not be artificially suppressed, but the rule of law benefits from a broader agreement. The broader the agreement among the justices, the more likely it is a decision on the narrowest possible grounds."Today, we got a real taste of that kind of jurisprudence.
In Carey v. Musladin, decided today, the Court unanimously reversed the Ninth Circuit, which itself overturned a California murder conviction (i.e., SCOTUS reinstated the conviction). The defendant shot and killed a man outside his ex-wife's home. The decedent's family attended the trial wearing buttons displaying the decedent's picture. Timely objections raised, affirmed on direct appeal. In a federal habeas action, the conviction was overturned by the Ninth Circuit, citing the same principles that prohibit forcing a defendant to wear prison garb, or to be surrounded by police throughout the trial.
So what did the Court decide? They didn't rule that allowing the family to wear the dead man's picture was prejudicial. They didn't rule that it wasn't prejudicial either. They ruled that they hadn't ruled.
Given the lack of holdings from this Court regarding the potentially prejudicial effect of spectators’ courtroom conduct of the kind involved here, it cannot be said that the state court “unreasonabl[y] appli[ed] clearly established Federal law.” [28 U.S.C.] §2254(d)(1). No holding of this Court required the California Court of Appeal to apply the test of Williams and Flynn to the spectators’ conduct here. Therefore, the state court’s decision was not contrary to or an unreasonable application of clearly established federal law.In other words- they punted. Final score 9-0 to reverse- six in the majority authored by Justice Thomas, Justices Souter, Stevens, and Kennedy each filing an opinion concurring in the judgment.
If this is the Chief Justice's vision, then dark days lay ahead jurisprudentially speaking. Here is a unanimous decision that is virtually useless as precedent. With the Court taking so few cases, it makes little sense that they would take a case and then decide it on narrow procedural grounds. Expect no Browns or Mirandas anytime soon.
The law is free, and I mean that literally. Opinions, statutes, regulations, whatever- these are public documents that are produced in the course of official business.
So why is this stuff so hard to find?
In my state, precedential opinions are posted on the Court's web site for immediate consumption. However, unless you go and physically check the site you will never know it. It would not be difficult for the Court to get the word out via RSS, but they don't do it (and do not get me started on the Pennsylvania Statutes! There is no- NO- official online site containing the statutes. The only site that exists is maintained by an attorney, but it has not been updated in quite some time- much stuff is out of date.)
In fact, using Google Reader as my search tool, the only jurisdictions I could find that officially syndicate their opinions are the state courts of West Virginia, Nevada, and Utah; and the Eleventh Circuit. New Jersey opinions are available through my alma mater's library.
I understand that the law is a (small c) conservative profession, dominated by technophobes and people who have a vested interest in maintaining the status quo, but making it so hard to track down what is public domain, what anyone can access by right makes no sense. Courts should want this information to be freely available. Citizens, who are expected to know the law, ought to access it without the rigmarole (prob! w/20 fidu! & exec!) that 1Ls are taught to endure by Lexis and West. Those services exist not so much because they provide you with the cases and statutes (which they do not own), but because they tell you how to find it.
And I don't know why the profession is okay with that.
Sunday, December 10, 2006
The initial press stories overstated the patent application. McDonald's is not trying to patent the sandwich. They are, however, patent the process involved in making a sandwich. From the application itself:
In accordance with another aspect of the invention, a method of making a sandwich composed of at least a bread component and sandwich garnish is provided, comprising placing sandwich garnish material on a sandwich assembly tool. The sandwich assembly tool has a region for holding sandwich garnish material to be applied to a bread component of a sandwich and the tool comprises at least one cavity. Sandwich garnish is placed in the cavity, a bread component is placed over and adjacent the cavity and thereafter the sandwich assembly tool is inverted while the bread is adjacent and covering the cavity to cause the sandwich garnish to be deposited from the cavity to the bread component. In a sandwich assembly tool having two cavities, sandwich garnish is placed in both cavities, and the sandwich assembly tool is inverted while a bread component completely covers both cavities to cause the garnish in the cavities to be deposited on the bread component.In other words, you take some meat and/or cheese, vegetables, and condiments and squish them between two pieces of bread. Using the sandwich assembly tool, of course.
It is one thing to patent a tool. It is quite another to patent sandwichmaking.
Augusto Pinochet died today, aged 91. As Chile's dictator, he murdered thousands and plundered millions. He was under indictment in Spain, exercising universal jurisdiction over crimes against humanity, and under house arrest in Chile, perpetually too old and sick to stand trial or go to prison.
Ironic, isn't it, that he should escape his so richly deserved fate, because of concerns for his human rights? After all, Pinochet himself once said, "Human rights? That's an invention of the Marxists." (Contained in the CNN story above.)
There will be no state funeral, no official mourning. Good- he doesn't deserve them.
What is the point of law if the powerful and wealthy can avoid punishment by virtue of their wealth and power? Saddam- an enemy of the most powerful nation in history- will get the noose. Pinochet was an American ally- in fact, we probably helped him rise to power- thus assuring that no special tribunal would ever sit in judgment.
This man did not get what he deserved. Tyrants are a dime a dozen, both grand and petty. We'll get the next one.
Wednesday, December 06, 2006
Two separate stories remind me yet again that one should think all the consequences through very carefully before acting.
First, Professor Friedman at Religion Clause (himself via Wall of Separation) wrote about the policy of Albemarle County, Virginia schools to allow religious non-profit organizations to distribute information via "backpack mail" (I guess what we used to call dittos). The school district enacted this policy at the behest of conservative Christian families in the county. However, the policy requires that all religious non-profits be granted equal access to backpack mail- and a Pagan group affiliated with the local Unitarian-Universalist church (full disclosure- I consider myself to be UU) is using the system to distribute messages about their upcoming holiday programs.
Needless to say, the Christians down there in Jefferson's county are not pleased.
Second, Volokh Conspiracy noted that the growth in renewable energy- in this case specifically biodiesel- is resulting in slash and burn destruction of the Borneo rainforests to make room for the crops that can be made into fuel. Although I could not read Volokh's source story (I'm a public defender- I can't afford to subscribe to WSJ!) , a quick run through Google News found this story from New Scientist- written over a year ago.
Rising demand for green energy has led to a surge in the international price of palm oil, with potentially damaging consequences. "The expansion of palm oil production is one of the leading causes of rainforest destruction in south-east Asia. It is one of the most environmentally damaging commodities on the planet," says Simon Counsell, director of the UK-based Rainforest Foundation. "Once again it appears we are trying to solve our environmental problems by dumping them in developing countries, where they have devastating effects on local people."Both of these stories- though totally unrelated- remind me once again that laws are enacted blindly, with little thought about the long term effects, similar to the point I was trying to make in my post about the mortgage deduction. If the conservative Christians could not foresee that people of differing faith could take advantage of the system, if the EU could not foresee that requiring biofuels could result in a strong enough rise in demand to require new plantations, then would it not have been better to have done nothing in the near term and think through the implications?
Last year, I was toying with the idea of running for my state legislature on the theory that the Pennsylvania state legislature is so horrible (and it is), that I could do better by default. I also had some ideas, too. I lost my father to lung cancer, so I had the notion that we could subsidize farmers to grow soy for biodiesel instead of tobacco (it may not be known widely, but Pennsylvania is a major tobacco growing state). Pennsylvania tobacco is mostly grown for cigars, which do not have fully the same public health implications as cigarettes, but it would be a symbolic if not entirely substantial step in the right direction that deals with both energy and public health policy, killing two birds with one stone.
However, I spent almost no time thinking about the net effects, say, 20 years down the road. The tobacco industry here in Pennsyltucky is small, and there are but a couple biodiesel plants in the state. Would rural communities suddenly get industrialized as new plants got built? Is diesel production likely to result in dangerous emissions themselves?
The point is that even good ideas have bad repercussions. The bad ideas- for example, allowing churches, Pagan or Christian alike, to distributes messages in the public schools- can have disastrous ramifications. It is hard to imagine the backpack mail thing will become a disaster, but the quest for biofuel has that potential because when they had the idea- a good one- they didn't sit down to think it all the way through.
Policymaking is complex, and cannot be created to fit on a bumper sticker. It is important that we look for renewable energy sources, but a more thoughtful approach is required in anything as important as energy policy.
Monday, December 04, 2006
Andrew Sullivan wrote over the weekend that he believes the mortgage interest tax deduction should be abolished. This, predictably, resulted in some mild excoriation. The arguments in favor of maintaining the mortgage deduction are predictable- without the deduction some people would not be able to own a home; homeownership builds wealth; home ownership is "the American dream;" etc etc etc.
My use of scare quotes around "the American dream" should give you an indication of my opinion. Sullivan is absolutely correct when he suggests that we should do away with the mortgage interest deduction, and he is not alone. For my money (pun intended), it represents the problems that arise when a legislature makes law without thinking through all the consequences.
The Mortgage Deduction Encourages Perpetual Debt
There was never a particular push in Congress to make home mortgages deductible. As this article points out, the first income tax made all interest deductible- business and personal alike. Most homeowners did not even have a mortgage at all- they owned their homes outright. Which is my first objection to the deduction- the goal used to be to get out of debt, but now the goal is to remain in perpetual debt and deduct it.
Needless to say, the real beneficiaries of this are banks. It is now commonplace for people to refinance after only a few years, or as in the case of a friend of mine, repeatedly buy and sell your home, ever moving up in the market. Admittedly, the deduction is not alone responsible for this- I think the Fed deserves as much blame as anything else, practically giving money away- but the deduction plays a major role.
Of course, since it is a deduction and not a credit, the taxpayer does not actually get the break he or she believes, and this is a distinction that the banks (and government for that matter) intentionally blurs.
A deduction is a reduction in the amount of taxable income- suppose someone earns $100,000 and paid $10,000 in mortgage interest. The interest payments are deducted not from the taxes owed, but from the taxable income- in other words after the deduction is applied, the taxpayer is treated as if he/she earned $90,000. Taxes are then paid on the $90,000. Taxed at 35%, the deduction reduced the taxpayer's obligation from $35,000 to $31,500.
In other words, $10,000 in interest payments saved the taxpayer $3,500, while the banks keep 100% of the interest. The constant exhortations to refinance and stay in debt simply do not make sense when viewed this way.
The Mortgage Deduction Has Immeasurably Harmful Social Costs
Homes require land. This is axiomatic- can't live someplace without a place. Fifty years ago, people lived much closer to each other- generally in cities close to their places of business. Such close contact required that people interact with each other. The smaller plots left behind an expectedly smaller footprint.
Today, thanks largely to cheaper interest rates, and the push to refinance upward, people are moving farther and farther away from their places of business out into what was farmland not too long ago. These houses are generally much larger than the houses closer to the city, and so naturally take up much more space.
However, unlike urban centers or even inner ring suburbs, the infrastructure necessary to accommodate these emigrants simply isn't there. Transportation is almost exclusively by car, since public transit does not exist out in these places. This means gasoline consumption, which has costs of its own that are well and widely noted.
It has even been my experience that this kind of homeownership defeats the one true social good of home ownership generally- the sense of community. From the Slate article linked above- "homeownership has benefits that go beyond individual homeowners, making people into better citizens and better neighbors, reducing crime, and keeping neighborhoods cleaner."
If only that were true. Most homeowners don't give a damn about being better neighbors, owing to what I call the "Lord of the manor fantasy." During my brief tenure as a homeowner- and I am glad that I am not one of them any longer- it became apparent to me that homeowners rather enjoy shielding themselves inside the walls of their castles, indifferent to the outside world. Homeownership seems to encourage a sense of individual entitlement far more than a sense of community.
As a friend said when became a homeowner, he could sit on his porch and shout "git offa mah land!" at any passerby with impunity.
Whatever the historical origin of the mortgage interest deduction, it is clear that it has transcended its genesis, and now exists as a social program in its own right even if it wasn't intended as such, which means that Congress pretty much believes that it should remain as is- the voters certainly think it should stay. In my opinion, though, this is an example of shortsighted policy thinking- law intended to achieve an arguably laudable goal, but which has a number of deleterious side effects. Is homeownership an unqualified good in its own right? Maybe, maybe not. But I think the "maybe nots" should have been considered in a little more detail.
Wednesday, November 29, 2006
The Supreme Court heard argument yesterday in the most important patent case years, and probably the most important case so far this term. I have blogged about it before.
At issue is when an invention is obvious, particularly in the context of the combination of preexisting technologies. The Court of Appeals for the Federal Circuit, the special appellate court with exclusive jurisdiction over patent cases, has established its own test to determine obviousness, called the teaching-suggestion-motivation test. In (really, really, really) short, it means that unless the patent examiner can point to an existing teaching, suggestion, or motivation on the subject- basically, some kind of article- then it can't be obvious.
Well, the Justices universally expressed disapproval of this test. Justice Scalia called it gobbledygook- the Chief Justice joked that experts testifying to an invention's non-obviousness must "the least insightful person you can find." Even the Patent Office argued it should be thrown out.
And it should be- the Federal Circuit's test lowers the bar to an almost ludicrous level, and essentially places the burden on the examiner to show obviousness. It should really fall on the applicant to demonstrate non-obviousness; they're asking for a legal monopoly, they should clear some hurdles.
In my (non-patent lawyer) opinion, the entire law needs a rewrite. Innovation happens too fast now to justify a 17 year monopoly on anything. Patents need to be shorter and harder to obtain- and patents on algorithms should be done away with altogether. An algorithm is simply a mathematical process- no one invents them, they are discovered.
And there is a difference between the two.
Apparently, trials are rare (registration required). I keep forgetting that criminal defense is the one field in which trials are relatively common. Last fall at a party in New York, I met a number of big firm lawyers. Their stories were all about filings and discovery motions and partners who make them pick up their dry cleaning. My stories were all about smelly clients and picking fights with a judge because I was getting bored.
I need to remind myself just how lucky I am to be in court so much, even if it makes it hard to stay on top of the necessary busywork.
Monday, November 27, 2006
Earlier this month, the Superior Court of Pennsylvania issued a ruling (PDF) in a child pornography case that I read and then decided it was not a landmark decision. The appellant was convicted of "knowing possession" of child porn. The evidence (by all accounts, undisputed) showed that he intentionally sought out child porn (over 370 images), but did not save the images to his hard drive. Unknown to the appellant, the browser automatically saved them to the cache. The Court held that since he did know the images were saved somewhere, he could not be convicted of knowing possession, and the law as written did not criminalize mere viewing. Had he known about the cache, the result would have been different.
We hold that absent specific statutory language prohibiting the mere viewing of pornographic images or evidence that the defendant knowingly downloaded or saved pornographic images to his hard drive or knew that the Web browser cached the images, he cannot be not criminally liable for viewing images on his computer screen.Then a friend sent me an article about the case, and it got me to thinking. This guy intentionally seeks out kiddie porn, and is saved by his own stupidity. Suppose someone accidentally stumbles upon a single image, immediately leaves the site, and does not intentionally save it- BUT this person also knows about the cache. That guy is guilty because he is not as stupid, despite the far less reprehensible nature of the conduct. What if hypothetical guy number two immediately clears the cache? Is that also evidence tampering? Obstruction of justice?
This case also points out the difficulties inherent in the concept of "possession" itself, particularly when applied to digital files. When one my clients is charged with possession of crack, it is easy enough to understand- it is physical, it exists in the palm of your hand. But when the concept is applied to information, it falls apart. What if you have an encrypted kiddie porn image on your hard drive, but lack the key to unlock it? What if the file is corrupted? What if you have it on your hard drive, know what it is, but it is in a proprietary format and you lack the software to open it? What if you simply never open it?
This is a serious problem for the future, when information is becoming increasingly digital. The Law- that's, capital T, capital L, The Law- was mostly written in a world lit by candlelight and coal fire, when businesses kept their books in actual books. We no longer live in that world, and The Law cannot keep up.
Sunday, November 26, 2006
McDonald's has applied for a patent on the sandwich. Yes- meats and veggies, with condiments, between two slices of bread, or, as in the lingo of the patent application, the "bread component."
I sincerely hope that this is just a badly written article, because the actual patent application is not available online yet. I'll try to post it next week sometime.
Posted by Charles Thomas at 6:15 PM
Wednesday, November 22, 2006
Someone got sentenced last week. He had a plea deal in place, but elected to plead straight thinking he could do better than the offer, and he had some great arguments for lenience. Well, he did worse than the offer on both the front AND back ends.
Some years ago, I remember the British nanny murder trial. Her attorneys made a tactical choice not to ask for a lesser included instruction- it was guilty of murder or not guilty at all. She lost. Snake eyes. However, the Court reduced the conviction to manslaughter and sentenced her to time served. In the ruling, the Judge said "A court... is not a casino." Snakes eyes to seven, albeit the hard way.
This is not the way the system ought to work. It really isn't a game, and yet everything we do is basically playing "Let's Make a Deal." Do you take the not entirely satisfying prize you already have, a set of luggage, perhaps, or do you opt for Door Number 3? It may be a car, it may be a goat.
It makes it virtually impossible to represent people in garden variety cases- the kind that always result in a guilty plea- with clients who have non- garden variety circumstances. The guy who simply gets drunk and starts brawling maybe doesn't deserve a break- but the guy whose wife just left him or who lost his job or who maybe learned his mother has cancer does. What of the guy who has mental health problems that do not rise to the level of a legal defense? What are these people to do?
There are two conflicting considerations here- the system tries to treat all defendants the same, while also trying to treat everyone as an individual. Try explaining that to a client, who may have serious cognitive disabilities, or who might simply be uneducated. "Well, the court will consider your background, your education, all sorts of things. But the guidelines still say you're supposed to do at least three months in jail."
So, Mr. Client, are you different enough to merit a three month reduction down to just probation? Or are you not different enough? Or, will your background instead give the judge a reason to go up, because you, Mr. Client, should have known better than to forge a check?
A court may not be a casino, but at least a casino is predictable- always split aces and eights, and double all elevens and tens.
Tuesday, November 21, 2006
You have all by now seen the Bank of America "One" video I should hope. It is painful to watch middle of the road bank managers mangle and ruin what is probably the best rock song of the last 20 years, (literally) singing the praises of a corporate merger. It is also earnestly sincere, and I will readily admit- the guy can sing.
However, sincerity alone is not enough for the lawyers. Universal Music began sending the cease and desist letters- and in one case, they posted the letter in the comment thread of a video sharing site (about 3/4 of the way down).
Dear Sir/Madam:It is clear that the BoA/MBNA "One" is derivitave, but I am not so sure that it is infringing. I think it could constitute fair use considering that the song was not appropriated for profit, was intended to be performed in front of a very limited audience (BoA employees). Moreover, BoA could argue that it was a parody, which can constitute fair use under Campbell v. Acuff-Rose Music.
As a courtesy to you and, in order to put Sterorgum.com on notice, I am attaching the text of a cease and desist letter sent to Bank of America’s legal counsel. Universal is aware that you are contributing to the infringement of U2's Composition entitled "One" by, among other things, providing access to the unauthorized video on your website. Universal is also aware that you are the owner, registrant, administrative contact and technical contact of Stereogram.com.
Universal has a good-faith belief that the unauthorized uses of U2's Composition entitled "One" and the reproduction of any lyrics derived therefrom on your website are not authorized by the copyright owners or such owners’ agents. On behalf of Universal, I hereby swear under penalty of perjury that the foregoing statement is true and accurate and that the foregoing statement is made under authority of one or more of the owners of an exclusive right in the Composition.
Please be advised that, if the unauthorized video is not removed from your website immediately, Universal shall seek any and all available legal relief against the owner(s)/registrant(s) of Stereogum.com.
All rights are expressly reserved.
Raul R. Gonzalez
Attorney, Business Affairs
Universal Music Publishing Group
2440 S. Sepulveda Blvd., Suite 100
Los Angeles, CA 90064-1712
There is one problem with the parody defense- the BoA version was not (intentionally) funny, and parody is supposed to be funny. As Justice Souter wrote in Campbell:
"The germ of parody lies in the definition of the Greek parodeia, quoted in Judge Nelson's Court of Appeals dissent, as 'a song sung alongside another.' Modern dictionaries accordingly describe a parody as a 'literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule,' or as a 'composition in prose or verse in which the characteristic turns of thought and phrase in an author or class of authors are imitated in such a way as to make them appear ridiculous.'"Since it was not their goal to make the audience laugh, they probably cannot claim that their version is a parody, other possible defenses aisde. This is where things get interesting, and since this is the Web2.0 universe, very, very meta.
Comedian David Cross and formers Smiths guitarist Johnny Marr recently opened for Modest Mouse doing a dead on, note for note, straight up cover of the Bank of America "One." Not a word was changed- they even performed it in dress shirts and ties, just like Ethan Chandler and Jim Debois. This performance was definitely intended to be funny, by simply playing the unintentional comedy of the BoA performance.
Which gets into a murky quagmire- BoA can't claim parody because the performance that Chandler and Debois staged at that meeting was not intended to be comic, despite the fact that I laughed my ass off. Cross and Marr, however, without changing a word, can probably claim parody, because their goal was to make you laugh- not at the song, but at the fatuous sincerity of the performance.
Which is a further complication, because a performance cannot be copyrighted- imagine Laurence Olivier copyrighting his take on Hamlet. The video of the performance, however, is copyrightable. They would be claiming, in effect, that the recording of their performance constitutes fair use, even though the song they are performing is an infringing derivative work.
Which only proves that copyright is completely inadequate for the new digital society. This meme moved from micro to macro to meta in a matter of days (sorry for the alliteration). Copyright just can't keep up with that.
Friday, November 17, 2006
It's one thing to call for the men responsible for making babies to cough up the cash and provide for their chitlins, but a court in Germany this week has redefined the concept of responsibility for children with a ruling that will no doubt stand as a low moment in judicial discretion. According to the BBC, a gynecologist who inserted a contraceptive patch that left his patient chagrined and with child has been ordered to pay child support.
Thursday, November 16, 2006
Today's Salon has a compelling story about a fertility clinic mixup. Two couples go for treatment- Couple One wants HIS sperm in HIS girlfriend only; Couple Two needs an anonymous donor. The clinic (by all accounts, accidentally) used the first man's sperm in the second man's wife. Now Man One wants paternity and visitation; Man Two does not. The lawsuits fly, and the law is not in the position to resolve it. One hundred years ago, people would have laughed if someone suggested that a man could donate his sperm. Today it is perfectly acceptable- but the laws that govern the family are not much different.
The law is perpetually changing, but at a glacial pace; technology is also perpetually changing, but at Moore's pace. This has been especially apparent in intellectual property law, where patents now routinely outlive the useful life of the invention, but the march of technology now requires entirely new frameworks in just about everything. For example, the Fourth Amendment protects people from unreasonable searches "in their persons, houses, papers, and effects." Is a word processing document a "paper"? Does one's "house" extend to the server on which the document is stored? Is there a reasonable expectation of privacy in the call log on your cell phone?
These issues will explode in the coming years. Despite the thousands upon thousands of pages of new laws and regulations that spill forth each year, the bulk of the law that governs the way people live from day-to-day is roughly 1,000 years old. The Constitution is a mere babe in the woods compared to the Magna Carta, and yet the Constitution- without question the most important legal document in the history of all humanity- was written for a world lit by candlelight and coal fire; for a world in which the trip from Philadelphia to New York took about a week; for a world in which goods rarely left the town they were produced in, never mind the state- but the Interstate Commerce clause is (textually, at least) unchanged in that entire time.
The law is supposed to change slowly. The trick is to try to think ahead, to leave room for the future. This is hard to do even during times of relative stability, but it has been done before. And sometimes, the changes are actually good. There is a reason that the Constitution survives after 200-plus years.
Thursday, October 26, 2006
I am both proud and ashamed of my home state. As it is (literally) yesterday's news, I don't need to remind you that the Supreme Court of New Jersey held that gays are entitled to the same rights straights enjoy. That is the part the makes me proud. The part that shames me is that the Court punted and did not come out in favor of marriage, but rather directed the Legislature to do something about it within six months, whether that means marriage or civil unions or whatever.
Naturally the decision was met with glee, outrage, disappointment, or optimism- sometimes all at once. Those who favor "protecting" marriage accused the Court of acting as a superlegislature; of judicial activism; of simple wrongheadedness. Those who think the decision didn't go far enough (like me) are calling it cowardice, pure and simple. And there are hundreds of shades of gray in between.
Marriage is legally a set of rights and responsibilities, and these have shifted over time as our understanding of the nature of humanity has changed. It was not too long ago that husbands were required on penalty of incarceration to provide for their wives; however, the wife sublimated her legal existence to that of her husband's. A married woman lost all right to transfer or acquire property- in fact, if a woman had owned property before marrying, she lost all power to dispose of it once she married. As Blackstone put it:
By marriage, the husband and wife are one person in the law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing.This is no longer the case. As our understanding of the nature of men and women changed, marriage changed with it. This, in turn, changed our understanding of marriage. Divorce, once granted only for cause, is now granted without any fault at all. The law now recognizes unmarried couples and children born out of wedlock. Times change, and slowly but surely the law changes with them. The common law practically demands it.
If law and understanding were immutable, locked forever in the attitudes of an ancient time, then gay marriage might seem like a major leap forward. Instead, it is only the next increment. Our understanding of sex, gender, and sexuality (all very different things) has changed. As we continue to evolve in our understanding, such distinctions seem arbitrary, and it seems equally arbitrary to deny a significant class of people something so basic based on an understanding of human nature that is no longer entirely valid.
Remember that in the eyes of the law, marriage is not a sacred covenant- Blackstone remains completely correct to this day: "OUR law considers marriage in no other light than as a civil contract."
The religious nature of a marriage is completely out of the jurisdiction of the courts. When faced with a claim of unequal protection, the Court cannot consider whether a church would object to it. Recognition of same sex couples would have absolutely no effect on any church. The Catholics would continue to disavow these marriages, just as Unitarians would continue to affirm them (as they have done so for some time now). Married people enjoy certain benefits that unmarried people do not- is it legal to deny those rights to a particular class based on their orientation?
I venture that it is not.
Sunday, October 22, 2006
Just a simple contract dispute over a rental car, a case that by itself should probably have never gotten to court in the first place. Certainly not a case that anyone will remember for its actual claim.
The case might be remembered for another thing, however. The plaintiff- a devout Muslim woman- came to court wearing the niqab, a full face veil. The Judge told her to remove it.
The Judge said that in order to determine her credibility, he had to see her face. It makes sense- juries are told to watch the witness' facial expressions as one of the things to consider. Sometimes you can just tell when someone isn't quite telling the truth.
This is different, though- the niqab is a display of piety, not unlike a yarmulke. Can you imagine telling a nun to remove her habit because it unfairly implies honesty? Would an Amish witness be required to dress "fancy"?
I do not think it is driven by anti-Islamic animus, but insensitivity. I hope this goes up on appeal, I hope there is a ruling that will allow her to testify in the niqab. No one should have to choose between their day in court over a $2,000 repair bill or their conscience.
Wife comes home. Catches husband having sex. With the dog (work safe).
Apparently she was composed enough to take pictures with her cameraphone. After three and a half years in a public defender's office, nothing shocks me anymore.
Manufacturers and service providers offer rebates as a financial incentive to increase sales. Rebates offer cash back to consumers who fulfill a set of requirements after purchasing a product bearing a rebate. By requiring post-purchase activities, the rebate offerer attempts to reduce the number of successful rebate claimants. Breakage occurs when a product bearing a rebate is sold, but the rebate is not successfully claimed.... Thus, manufacturers establish procedures to maintain a sufficient rate of breakage....
Consumers, in contrast, desire the quickest and easiest process for receiving their rebates. This creates a tension between the manufacturer's desire to maintain consumer satisfaction and the need to sustain a sufficient level of breakage in rebate programs.
In other words, Parago has developed a better system to get people to screw up, thus denying the rebate. That may be offensive and bad business sense for Parago's clients- according to one blog, their big account is Circuit City- but that is not the truly offensive part.
What bothers me is that this was patentable at all.
Reading the patent in depth, it would appear that the real "invention" amounts to a web interface for rebate processing- all the same stupid steps (receipts, account numbers, proof of purchase, etc.) done on the web. Any remotely web savvy person could have developed their site, same as all the other businesses that have adopted the internet.
The problem is twofold. In patent law, the burden to prove patentability is not on the inventor- it is on the patent agent, a disinterested government employee charged with determining the two criteria, novelty ("Is this invention really new?") and non-obviousness ("Is this invention really just the next logical step after all the other steps have been added up?").
Here is where things get really screwed up. The current state of the law requires a prior "teaching, suggestion, or motivation" that the agent can point to before the patent will be denied. In other words, even though it is completely obvious that you can process rebates online, it is not legally obvious unless someone, somewhere, wrote an article about it.
Fortunately, all this could change soon. The issue will be argued this November at the Supreme Court, and hopefully they will do the right thing. As the EFF argued in its amicus brief, this test threatens open source software development, because "holders of bogus obvious patents, assisted by the Federal Circuit’s improper test, may limit that growth by destroying the alternative economic incentives upon which [open source software] companies rely."
Think of it like this- the more obvious the idea, the less likely someone is to write about it. While it may seem like a no-brainer that an engine could be installed on a carriage, George B. Selden, who had neither built an engine nor a carriage, would not be remembered as the first patent troll but as the inventor of the car- because nobody wrote about it.
Friday, October 20, 2006
I have been blogging for a number of years now. Mostly about the state of my life, but I have also done some topical blogs. I had a political blog for about a year, but personal issues got in the way of regular updates, and I let it die, although I maintain the archive.
Rejuvenated, I am starting a new topical blog, this time about something near and dear to me- the law. I am a lawgeek- meaning that not only can I recite cases and their holdings off the top of my head, I like to go a step further and break down the framework of the state of the law to see how the court got there. The essence of geekery is to break down systems with an eye toward improvement.
What I will not do here is talk about my own cases. Ethically I may not do that, nor will I take positions on issues that may come into play in my own cases. An opinion I express here may be adverse to a position I have to take later.
In any event, I hope to make this blog interesting and informative. Stick around!