Wednesday, January 26, 2005

Michael Jackson - Brawler?

Michael Jackson has not generally acted in a manner I would counsel my clients to act, although I don't tend to represent well-known people (and the couple who have been well-known have been so by virtue of their acts that led me to represent them). As well known as he is, he is widely viewed by the public as a child molester who got away with it a decade ago, and who, based on his TV special, never seemed to get it.

But, he's really not helped his case with his outcries over things like his maltreatment by the Sheriff (really Michael, you should talk to your lawyer about what kind of surveillance the Sheriff uses for high profile cases such as yours before spouting off about being beaten or abused). Of course, the video and audio of that interaction showed him to be a drama queen (oops, sorry bout the use of the word "queen" and Michael) at best, and a liar at worst.

His latest, though, is really classic. He's challenging the Santa Barbara DA, Tom Sneddon, his own personal Captain Ahab, to a mano a mano. This may actually be the best move he could've made. From everything I've heard and read, Sneddon wants Jackson badly after being outmanned ten years ago. This time he has may have crossed the line in going after Jackson (let's face it, you just don't conduct searches on your own initiative of the defendant's lawyer's investigator unless you bring along a special master with you). Clearly, he wants Michael. But, how good of a trial lawyer can he be, I mean, as the head guy for so long, he probably hasn't done a trial in ages (actually, I looked it up and he appears to do a few cases every so often - I kinda doubt he does them against the caliber lawyers that Jackson's hired). When San Francisco DA Hallinan decided that he wanted to do a high profile murder case a few years back, by all accounts he did a pretty bad job.

That which makes one a good administrator does not make you a good trial lawyer, that's obvious. However, DAs offices are so political (as they are elected offices), that I've seen enough of the DAs in management where I work to realize that good lawyering often has very little to do with promotion to management, and eventually, making it to the top spot. The same is true in many public defenders offices as well.

Sneddon has personally taken part in some aspects of this case, I believe he has even appeared in court on the case, something unusual (at least in a big city). So, by Jackson throwing down the gauntlent to him, he may have given Sneddon a gambit that he can't refuse. If he entices Sneddon to do this trial against him, then he will probably take a more experienced trial lawyer out of commission in so doing. That would be a great achievement indeed.

Who knows, it could get ever more interesting.

Tuesday, January 18, 2005

Washington State Goes Overboard on Breathalyzers

Via Lawrence Tayler's DUI Blog (I told you that he's the king of DUIs and has a blog worth visiting), it comes out now that the Washington State Legislature is making all breathalyzer results admissible in court, regardless of whether the machine is shown to be in working order or not. As Taylor points out, the legislature obviously got tired of these damn cases falling apart in Court due to defective and worthless machines, and now they've decide to fix things by making bad evidence admissible, rather than making bad evidence good.

Absolutely incredible, why not get rid of hearsay as well, since it's so inconvenient (well, actually Washington actually tried that, and of course, they were slapped down by SCOTUS in Crawford, so I guess there's really no limit to what they'll do, except SCOTUS, which is hardly comforting). What other protections can we get rid of to ensure more people are convicted. That pesky 4th Amendment? Gone. 5th Amendment, curtail it. 8th Amendment, does that really even exist anymore? Ahh, the grandaddy of them all, the 14th Amendment, SLASH! Now don't we feel so much better.

Check out Larry Taylor's blog for more.

Friday, January 14, 2005

Court Martial Conspiracy - Redux

Well, the latest Abu Ghraib court martial trial is over, and there is a conviction. On one hand, as a member of society, I am always glad to see people convicted when they are really guilty and they are given a fair trial. I don't want to see people railroaded, I would prefer that guilty people get fair trials and get convicted upon presentation of real and honest evidence. And I would prefer that such evidence exists against guilty people.

However, I have been troubled by these prison abuse scandal trials. Not because I think that the abusers (the soldiers accused of abusing Iraqi detainees who frequently turned out to be incorrectly incarcerated) were good and nice people, but because I think that something is being hidden from us, and that these people are taking the fall for rot that extends far higher up the chain of command.

Last May I wrote two posts about the Court Martial Conspiracies, here and here. I posited then that lower level soldiers would take deals so that they could testify against their own, but so that high level commanders, and especially the bigwigs in Washington, do not get dirtied in the scandal.

Since then, we have found out quite a bit of ugliness that existed from the very top down with regards to our nation's official position on torture. Basically, our country now tortures people, and justifies it in ugly, disgusting ways. Our Attorney General to be, Alberto Gonzalez, wrote about how the Geneva Conventions were quaint and out of date, and that torture only exists in the MOST extreme of circumstances (such as permanently losing an organ) and only if the torturer actually intends to commit the legal act of torture (an almost impossible standard to meet). The person commanding the prison in Guantanamo Bay was moved to Abu Ghraib with the specific purpose of "Gitmoizing" it.

Conclusion, our present administration has decided that all of those virtues we extolled world-wide don't apply to us, they just don't want to admit it. And who is taking the fall for it? That's right, the soldiers who are being asked to carry out these acts. We know that the torture that has gone on by our intelligence services is too pervasive to be "a few bad apples," or "exceptions to the rule." Dozens of people have been killed in custody after being physically abused, this abuse has happened in places as diverse as Afghanistan (at the Baghram Air Base), Abu Ghraib and other prisons in Iraq, and Guantanamo Bay. The only common denominator is the commanders of all three, which is our nation's military and civilian leadership. But, to ensure that this doesn't reach the highest levels of command, we have nailed these lowly soldiers as scapegoats.

It's disgusting.

I remember watching Tom Cruise and Jack Nicholson in "A Few Good Men," where Jack Nicholson, the commander (of Guantanamo Bay, coincidentally) allows his subordinates to take the fall for a murder that he ordered. The cover up is discovered by Tom Cruise, the JAG lawyer, where Nicholson utters the famous line "You can't handle the truth!!!" When I saw it, I thought, "nice fiction." Sadly, that is looking more and more true every day.

Incidentally, I don't believe that "just following orders" should necessarily be a shield for this activity, but I can't shake this nagging feeling that we "can't handle the truth," and that these soldiers are taking the fall for following someone else's orders, someone so politically insulated (by reelection and a compliant Congress?) that anyone who gets in the way gets shoved rudely aside.

UPDATE - Graner was given a 10 year sentence (out of a possible 15 year) by the jury. I saw the movie The Last Castle, with Robert Redford, and I remember thinking to myself, "there is absolutely no difference between military prisons and other prisons). I think that he has to do most of that time, but I'm not sure how military law works in that respect. In other words, it's a severe sentence. I only hope that some of the people who actually killed people get more severe sentences. His lawyer's quote was most fascinating, along the lines of what I've been saying.

"People have talked about this case as being like a Nuremburg trial," he said, referring to the prosecution of high-ranking Nazis who tried to defend
their actions by saying they had followed orders. "There's a difference. In Nuremberg it was generals we were going after. We didn't grab sacrificial E-4s,
we were going after the order-givers. Here we're going after the order- takers."


New template, lost comments

Well, I had a little disaster at the blogger corral, and lost my old template. I was able to resurrect all of my posts, and get a new template (one that allows me to post without having numerous, uncorrectable - by me - errors on the page) at the same time. However, I lost all of my previous comments from Haloscan. I sort of like this method of comments more, and I think the template looks better, but I really miss all of the old comments. Especially since I looked at some of the new ones and they were very angry at me. I have thick skin, so I can deal with it, but there were some great comments, especially on the question of whether downloading was theft or not.

I'll try to go and get them back, but if not, please feel free to re-comment on some of the posts, especially things like the downloading issues.

UPDATE: I was able to find my old comments on Haloscan, and I was even able to export them as an XML document. However, I don't know how to have those old comments imported into my blog as it presently exists. If there are any experts out there who can explain this to me easily, I would appreciate the help. Thanks in advance. Email me the info, or post it as a comment.

Thursday, January 13, 2005

From Arbitrary and Capricious: Public defender suicide in Tel Aviv

Skelly, a PD in Washington State, has a cool post about a tormented Public Defender in Israel who committed suicide because the prosecution used him to get at his client. Severe reaction, I would say, but apparently prosecutors are somewhat similar worldwide.

It's worth a look.

Monday, January 10, 2005

Great Argument against DNA

Writer David F, a PD from a very red state (well, a very red part of a purple state) where creationism is all the vogue wrote to me about something I just had to share. Apparently, some of the jurors in that area are so conservative, they don't believe in evolution and believe the earth is 10,000 years old and we created in 7 days (thus - creationism). Well, some of the lawyers in that area have taken to portraying DNA as being part of evolution, and hence against creationism and God's own word. This has, apparently, caused some confusion, maybe even hung juries(?), in DNA cases where their clients are dead to rights guilty.

You have to love it, right wing politicians (generally) pass more and more laws to put people in prison longer and longer, and yet, they're caught in their own idiotic far-right ideology when it gets on their jury and refuses to accept science (also a far right ideology) to convict.

Saturday, January 08, 2005

Have Miscarriage, Go to Jail

Thanks to the Virginia chapter of Democracy for America (the successor to Howard Dean's presidential run group) for pointing out this law coming from the heart of the red states, Virginia. Apparently, they want to put women in jail for up to a year if they have a miscarriage and don't report it to the police within 12 hours. Now,I am avowadly pro-choice (as part of my belief that the government should stay the hell away from me if I'm not bothering anyone else), but I don't think you have to be as militantly pro-choice as I am to recognize what an idiotic law this is, and what an evil law this is.

This is the anti-abortion lobby trying to equate a fetus (at whatever stage) with a full blown human being. As a father of 2 (fairly recent) boys, I remember my wife's pregnancy the first time (without having had a kid yet), and the second time (after we already had one), and I never, either time, had any illusions that the fetus in my wife's body was the same as the little kid we had running around the house, or as me or my wife.

But, to pass a law like this one, go to jail if you don't report every miscarriage within 12 hours? This is the typical intersection that I see of serial moralizing right wingers and serial imprisoning prosecutors. The goal, I've often believed, is to get as many people caught up as possible criminals as possible, get them all on probation or parole, and then you really control society (all, that is, except right wingers, who seem to slide from just about every wrong thing they do).

I know my site's veered too much into the political at times, and I've tried to steer it back to criminal law, but in my mind, this is criminal law at it's best (or worst).

Is there anyone around who can justify this proposed law?

Wednesday, January 05, 2005

Update: Downloading: Theft or Not?

There has been some really interesting responses to my post asking people there views on whether they consider downloading to be theft. It's worth looking at the comments section of the blog to read some of the good responses.

I am personally torn. I have to recognize that any downloading that I've done (that is, assuming I've ever downloaded) has resulted in me being less likely to purchase that CD later. On the other hand, I haven't purchased many CDs over the last few years anyways. Is that the result of me getting older? Or is it the result of Napster and it's successors (that is, assuming I ever downloaded....).

It appears as if poster EEF is technically correct in that downloading is not a crime (or at least, not an easily provable one), whereas offering up your own MP3s for download by others is one. This is why the RIAA has sued people, not for downloading, but for allowing the uploading of music. I On the other hand, perhaps the RIAA has recognized that if they sued someone for the downloading of a song, they would have to prove that the person did not have a license to that song (ie - that they already owned a compact disc of that music). And, a downloader was sued, they could just go and buy the CD for the song they're accused of illegally downloading and claim that they owned the CD at the time they downloaded the song.

This may resolve the legal, but not the moral, component of downloading/uploading. How does it feel morally? In this respect comments by Chris seem to mirror my views somewhat - there is little sympathy for the big companies, but a little bit for the individual musicians.

Emailer Laszlo wrote me a long letter ripping the RIAA and the labels (as well as the music stores) for their business practices of selling so much junk as filler with one-hit wonders, charging so much for such cheap CDs, changing of formats (requiring new purchases of music), ripping off of artists, stifling of new and interesting music for bland formats created by Payola practices, and many of the other things that make us so dislike the music industry.

I certainly agree with many of those things, but I don't know if they answer the underlying problem. If I hate drug dealers, everything they do and stand for, stealing their stash is still stealing, and wrong (as well as probably illegal, although I've made arguments before that it's not). Hating the music business is not a reason to rip them off, if that's what we're doing.

I'm still not convinced, is it? I feel a pang deep down that there's something wrong with it, that it doesn't pass the smell test, but I don't feel it's equivalent to shoplifting. Some of the posts pointed out that it can't be common law theft since it's not touching anything, or depriving anyone of anything. However, the rejoinder, that if I came into a store with a laptop and asked to quickly rip a CD from the store owner, I'd be seen as a thief certainly resounds with me.

No one brought up my hypothetical of whether the circumstances are changed (morally, if not legally) if the downloader sends the band in question money for payment for the music, thereby bypassing the record company and the 95% of the money that they keep on each sale. Does that change the situation?

Keep the comments coming, it's really interesting.

A blog worth visiting

Lawrence Taylor is a legend in California DUI law. He's written some of the seminal books on defending those cases, and his writings are of interest to people in all areas of criminal law. His blog is definitely worth a good read. It is of interest to practitioners in the system, as well as critics and those otherwise interested in the workings of the system.

Enjoy the blog and even leave a comment or two.

Sunday, January 02, 2005

Is downloading theft?

This is a question that I've discussed with many other people through the years. I'm curious about people's feeback on this. Do you consider downloading theft? Do you think it is the same as walking into a store and stealing a CD? Or do you somehow consider it different because it's not actually taking anything tangible (ie - just a sound)?

Here are the 2 sides as I see it.

For theft: You are downloading music that costs money if you wish to purchase it at the store. You will likely not go to the store and purchase the music if you download it for free, and can easily burn numerous copies of it onto a CD for your use, or for anyone else's use if they so desire. It is no different than going into the store and taking it off the shelf.

Non-Theft: There is a huge difference between a tangible package that you steal from a store and the sounds contained therein. Some of the costs associated with that package, and the desireability of that CD, are tied up in the packaging itself (notwithstanding the old phrase "don't judge a book - or CD - by it's cover). Furthermore, that music is there for the taking if you so desire and are patient - record it off of the radio for free, or copy a song from your friend's CD if you want - both are perfectly legal. It is the convenience that has the music companies up in arms, and convenience is no basis for calling something theft. This argument does not even address the notion that people are more likely to purchase when they are able to download and listen before buying (something that probably doesn't change the morality of the situation). Finally, you can't actually steal a sound, that is there for anyone to listen to.

Now I'm curious, if you call downloading theft, would it still be theft if the person sent money anonymously to the band when they downloaded some of their songs? What if they calculated the approximate amount the band receives per CD and sent them that amount for every 10 songs they downloaded, or something to that effect.

What about downloading songs that aren't readily available commercially. For instance, you hear a song you love performed on Saturday Night Live, but you can't find a recording anywhere. Is downloading that permissible? What about Grateful Dead concerts, since the band generally encouraged their fans to record and trade their concerts, and even had quieter recording sections set up at their shows.

Any thoughts on this, I'm curious where everyone's views lie.