Recent Articles in Election Law & Political Commentary from LexMonitor

Another Double Standard

Fri, 12 Mar 2010 16:18:54 GMT

Remember Scooter Libby? Or Martha Stewart? Both of these high profile people were prosecuted for making false statements to federal agents. As a general rule, I would never ever talk to the FBI or any other federal investigator because if I made a mistake, I could still be prosecuted for that innocent mistake, even if it isn't intentional.
Apparently, if you do the same thing in your senate confirmation, well, it's just not that big of a deal. Combining this, with the DOJ dismissal of the Black Panther Voter Intimidation case and the dismissal of the ACORN investigation, and you realize that there are two kinds of justice in this country. One for Democrats and their friends, and one for the rest of us.
Guess which one goes to jail.

More push-pull legislation on court funding

wraftery@ncsc.org (Bill Raftery) — Fri, 12 Mar 2010 15:00:41 GMT

Readers may recall the Florida House bills proposed several weeks ago that would provide the courts guaranteed funding, but only if judicial immunity and a list of other changes made to the way courts and judges operate. Now the Senate has introduced identical bills (SB 2636 and SB 2640). Georgia, meanwhile, is also considering tying additional [...]

Georgia, meanwhile, is also considering tying additional funding to changes in court structure. SB 429 would add a $100 judicial operations fund fee to all civil actions with the proceeds to be deposited into the general fund of the state treasury for funding salaries of judges and the operational needs of the judicial system. This additional funding comes, however, only if the Supreme Court is increased from 7 to 9 justices and the Court of Appeals from 12 to 15. Unlike in most states where a change to the number of Supreme Court justices would require a constitutional amendment,Article VI Section VI of Georgia’s Constitution allows the legislature to set the number so long as it is below 9 (interestingly, there appears to be no minimum). Gavel to Gavel readers may recall a similar effort to expand the Supreme Court in 2007. This, from Gavel to Gavel’s first edition

Georgia media reports legislation may be considered to increase from 7 to 9 the number of seats on that state’s high court. Chief Justice Leah Ward Sears urged lawmakers not to alter the court, telling them “We are doing well. We are getting it done. We have the manpower we need.”

Changes to the appellate courts are rare, especially courts of last resort. Since 1990, only 2 states have had such changes. Nevada’s Supreme Court grew from 5 to 7 members in 1999 (AB 343 of 1997). In that same year, Iowa’s Supreme Court shrank from 9 to 7 as 3 judges were added to the state’s Court of Appeals (HF 2471 of 1998).

Judicial Vacancy Commissions

wraftery@ncsc.org (Bill Raftery) — Fri, 12 Mar 2010 14:43:19 GMT

Two states, both having dealt recently with contentious elections, are actively debating the use of Judicial Vacancy Commissions. While they share similar names, the two are dramatically different. Alabama’s version builds on its pre-existing system where counties are allowed to opt-in into a system that allows for interim judicial vacancies to be filled by a commission [...]

Two states, both having dealt recently with contentious elections, are actively debating the use of Judicial Vacancy Commissions. While they share similar names, the two are dramatically different.

Alabama’s version builds on its pre-existing system where counties are allowed to opt-in into a system that allows for interim judicial vacancies to be filled by a commission that submits names to the Governor. The selected individual serves only the remaining years left in the term, but may run for a full term in the regular, partisan election system. So far, only 8 of Alabama’s 67 counties have the program, with a special constitutional amendment required for each county. However HB 443 would amend the state’s constitution to provide for the use of such commissions in all counties of the state. It was approved as amended by the House Judiciary Committee 2/11/10.

While Alabama’s version is obligatory (the Governor must select from the list of names given by the commission to fill the temporary vacancy), West Virginia’s proposal is explicitly advisory only. HB 4036 and SB 223 would create a Judicial Vacancy Advisory Commission to submit 2-5 names to the Governor when a vacancy occurred in any judicial office. The Governor would be under no obligation to make use of the list, but the list and most of the proceedings of the commission would be open to the public. The House version was approved by that chamber on 2/24/10 and is currently on the Senate floor, having been approved by the Senate Judiciary (3/8/10), and Finance (3/11/10) committees. Probably because of the advance of the House version, the Senate bill has not made it out of committee.

Boosting the minimum years admitted to the bar to be a judge

wraftery@ncsc.org (Bill Raftery) — Fri, 12 Mar 2010 14:19:16 GMT

Several weeks ago we looked several states looking to do away with non-attorney judges. Other states are looking at increasing the minimum number of years an attorney must practice law (or at least be admitted to the bar) before becoming a judge. For example, Alabama in 2009 passed a law (SB 28) requiring a minimum number of years to serve on certain courts: 10 for the appellate courts (Supreme, Civil Appeals, Criminal Appeals), 5 for Circuit, 3 for District.

In 2010, Illinois, which currently requires only that a would-be jurist be admitted to the bar, is considering requiring (HCA 57) a set number of years or practice before reaching certain courts: 15 years for their Supreme Court, 12 for their Appellate Court, and 10 for their Circuit Court.

Also active this year, New Jersey is considering (SCR 83) increasing from 10 years to 15 its existing minimum for the Supreme Court, the Appellate Division of the Superior Court (i.e. the state’s intermediate appellate court), and the Superior Court.

MN: One step closer to retention elections

wraftery@ncsc.org (Bill Raftery) — Thu, 11 Mar 2010 18:57:04 GMT

Earlier today the Senate Rules Committee approved SB 70, a bill to establish retention elections for judges. The bill also expands terms of office from six to eight years and creates a judicial performance commission. the commission must issue in the year a judge seeks retention ean valuation of “well-qualified,” “qualified,” or “unqualified”. The bill [...]

The Accidental Pro Bono Attorney

rick@rhdefense.com (Rick Horowitz) — Tue, 09 Mar 2010 01:16:20 GMT

Last week, a couple of insightful attorneys wrote posts regarding fees. Brian Tannebaum, a hard-fighting criminal defense attorney in Miami, Florida, discussed the effect the economy is having on clients trying to get money back from their attorneys — particularly after the attorney has, through his hard work, managed to keep them from being charged [...]

Scott Greenfield’s post notes that people believe the economy must be good for criminal defense attorneys, since they believe more people will commit crimes. Scott not only debunks this myth, but notes the negative impact the Internet generally has had on hard-fighting criminal defense lawyers trying to feed their families.

Today, I was reminded of another perspective on this: the client who believes that since you successfully represented him in the past, he owns you for life.

Today’s incident is not the first time I’ve had difficulties with a client over my fees. Issues with clients over fees are just part of the territory. It boggles my mind, though, how far some clients, former clients, potential clients and people who never will be clients are willing to go to insult, try to “guilt-trip,” or otherwise argue with me over my right to make a living.

Or just disappear after the successful resolution of their cases without paying me.

Some months ago, I was contacted by an attorney who wanted to ask me about a current client of his. The individual he asked about had been a client of mine less than a year before. In fact, I successfully represented that client three times over about a two-year period after his first girlfriend somehow heard about me and hired me to defend him on charges that he had abused her.

As new cases were filed, my client had less available cash. But he had a (new) girlfriend who was willing to foot his bills. He wanted me — because I kept winning for him — and she agreed to pay. Since they’d previously paid my fees, I foolishly agreed to a payment plan. The day I won a dismissal on his third case, they stopped paying and I never heard from them again. Until the new attorney contacted me and I learned that he had new charges.

Yesterday, I heard he was going to prison.

Now I’m not saying I could have won for him four times in a row, but I certainly think after I won the first three, he might have wanted to make sure he could come back to me again.

I tell this story not to show what a great lawyer I am, but to show that I’ve learned — the hard way — that no matter how good a job I do, this doesn’t mean I will get paid. If I don’t have the money by the time the case is finished, I’m probably not getting it.

Before I learned this lesson, I did a lot of what I call accidental pro bono work. It took a long time before I learned that no matter how much I feel sorry for someone, no matter how much I want to help them, unless I’m willing to starve my family, lose my house and find myself unable to put gas in my car so I can travel to a client’s hearing in another county, a practice built on taking payments isn’t going to fly.

And then there’s the guy who contacted me again today. For more than a month now, he’s been trying to convince me that because I helped clean up some cases for him in Fresno and got him a result that made him and his family happy there, I “need” to clear up some cases for him in another county. For free. Because he’s out of money. Because he spent his money paying another attorney (who was unable to do the job) and me (for successfully completing the job) on the Fresno cases.

When I explained that I could not represent him — in another county, no less! — for free, he was polite enough about asking, but his persistence makes it clear (as do his words) that he thinks I should feel the necessity to do him this “favor.”

Let me say something here: I care very much about my clients. Perhaps too much sometimes. I take calls from my clients at all hours of the day or night, sometimes just to listen to them talk because they’re scared. There’s not much I can do, but I listen. When a client needs a jail visit, I go. If the visit keeps me 10 minutes, or 3 hours, it doesn’t matter: as long as I don’t have to be somewhere else, I give them whatever time they need.

But I cannot work for free. I cannot help everyone in the world, no matter how much I agree that they need help. As I’ve explained to some of them, that’s why we have public defenders.

Sidenote: There is nothing wrong with having a public defender. They won’t be able to spend the time with you that I can. They are sometimes usually overworked. But I don’t think I’ve personally ever met a public defender who was not a good attorney — although I’ve heard of some. I cannot say the same thing about private attorneys: I know plenty who are a complete waste of money.

When my wife is sick, neither the hospital nor the doctor will treat her for free. There have been times when her asthma nearly killed her. I still have to pay to have her treated. And I can’t do that if my clients don’t pay me, because as sad as it is, this is how I make my living. Being the best criminal defense attorney I know how to be is the way I pay my bills.

Vincent Hallinan (1896-1992) once said:

Lawyers make a good living off the misery of others and any lawyer not willing to go to jail for his client has no damned right being in the courtroom.

I can’t exactly say I’ve been making a good living, but that’s my own fault. For too long, I’ve bought into my clients’ views and promises regarding payment. I’ve remembered what Hallinan said about lawyers who aren’t willing to go to jail — in other words to fight hard regardless of the costs — for their clients. I’ve fought and I’ve won often enough. But I’ve confused a willingness to go to jail for my clients with a willingness to go to the poorhouse.

That can’t keep happening. I can’t keep my office open that way. I can’t feed my family. I’ve had to “harden up” a little regarding fees.

If you want a lawyer who will fight hard for you, I’m your lawyer.

But you’re going to have to pay me. For every case.

Schweitzer as the VP in 2012?

Mon, 08 Mar 2010 16:04:44 GMT

The Washington Examiner thinks that Obama needs to get some populist help for his re-election run in 2012. No mention is made of Biden, although it is fairly well known that the former Senator from Delaware offers little to help Obama's chances, since his whole attraction before was foreign policy expertise. But interestingly. the Examiner seems to think that our own Gov. BS is prime material for the spot.
Personally, I think Obama needs someone with actual, you know, competence. Maybe Bayh, but I am not so sure that he wants to be associated with the coming train wreck.

“Come to the Cut”

rick@rhdefense.com (Rick Horowitz) — Fri, 05 Mar 2010 22:10:15 GMT

A friend of mine, Joni Mueller, sent me a link yesterday, asking if I’d seen the article. The title was “Exclusion of MySpace Evidence in Gang Related [sic] Murder Trial.” The article discusses an evidentiary ruling in the unpublished case of People v. Wiliams (2010) 2010 WL 611444, 2010 Cal.App.Unpub. LEXIS 1251. [Note: Since there are two versions of the unpublished opinion and since I'm feeling lazy today, I personally will not use citations in discussing the case; the only time citations show up are when I'm quoting the original article using them.]

The article’s focus on the evidentiary ruling is puzzling.

I’m not at all sure why the author of the blog article chose the case he did to discuss the issue he appeared to want to discuss. Frankly, I found the dissent — on an entirely different issue — to be much more interesting. But the fact that the opinion is an unpublished opinion makes it pretty much valueless in California anyway. As with all unpublished cases, California’s Rules of Court make the case uncitable; it does not count as precedent. And the argument on this issue was unremarkable, to say the least.

The only thing I can figure is that there aren’t any published California criminal cases involving the use of social networking evidence and the author wanted to reference such a case, rather than any of my articles on the topic.

I myself would not bother to write about this unpublished case if it were not for the fact that the author of the article, who is licensed as an attorney in the State of California, but who may not actually practice criminal law decided to do so, made a couple of mistakes and I thought I would both fix those and springboard off his post to talk about how social networking does get used in actual criminal cases in California.

(Side note: I do not know “Joshua Gilliland, Esq.,” who “is the blogger for ‘Bow Tie Law.’” I form my opinion that he may not actually practice criminal law on a few relatively minor details. First, the State Bar website shows that he is a member, but he lists his address as being with “D4 Discovery.” The “About” page for his website mentions nothing about actual lawyering, but only discusses his creating and teaching CLE courses, especially regarding e-discovery. And the article itself contains a few — again, fairly minor — errors that I don’t think a practicing attorney would make. My pointing this out is not intended to disparage Mr. Gilliland. Not everyone with a law license wants to, or should be required to, practice law. Even if my assessment is correct, if Mr. Gilliland does a good job teaching e-discovery and doesn’t do criminal trials, I see nothing at all wrong with that. Besides, much of what he said, he got right.)

One thing Gilliland got right were the facts, so I won’t rehash it all here. Basically, the defendant was tried and convicted for murder after a confrontation with rival gang members in which a gang member was shot. Apparently, one of his defenses was that the person shot was the aggressor and part of the evidence he wanted to have admitted to support his theory came from the MySpace page of the dead gang member’s sister (who was also present for the incident and testified about the shooting).

Gilliland seems to make a big deal of the fact the opinion is not clear if the evidence — a videotape — was a videotape of the MySpace page (i.e., someone videotaping the page while viewing it), or was a video that was embedded in, or part of, the page itself. I don’t know why that matters. He afterward mentions that the prosecution objected on “foundational” and “relevancy” grounds. His comments about this ambiguity made me wonder if that’s what he thought created a foundational issue. The court, however, was not unclear about that: the foundational objection was because the prosecutor claimed you could not tell who was in the video just by viewing it.

Gilliland, however, completely missed the point when he stated,

The Trial Court excluded the MySpace evidence pursuant to California Rule of Evidence Code section 352 (no evidence is admissible except relevant evidence). Williams, at *24.

Gilliland’s mistake is that Evidence Code section 352 deals with evidence that typically is relevant, but where the probative value is outweighed by concerns of undue prejudice, confusion or consumption of time. It is Evidence Code section 350 that states no evidence is admissible except relevant evidence.

But this mistake — one of the things that made me think Gilliland doesn’t do many trials — probably occurred because of another ambiguity in the opinion. (I have argued elsewhere that sloppy opinion-writing is one of the things that make unpublished opinions problematic.) The opinion itself states:

[T]he court ruled that it would be excluded under Evidence Code section 352. The court ruled that if the page had shown an actual crime of violence, the evidence would have been admitted, but that “this is playacting. It is no different than Marlon Brando shooting the Godfather or something. Would that show a propensity to commit violence? No. So I am not going to allow it. I think it is irrelevant.”

The appellate opinion then went on to argue that the evidence was repetitive, as there was already significant other (presumably relevant) evidence making the same point. In other words, it was a 352 issue. And besides, the court noted, the defendant-appellant’s claim that his constitutional due process rights were violated by not admitting the evidence was wrong: the videotape “clearly involved a minor point” and exclusion of this minor piece of evidence did not rise to the level of a constitutional violation.

So much for those relatively minor quibbles. As you can see, the issue of “e-discovery” had almost no role to play here; nor was the attempted use of MySpace evidence all that significant.

As I noted, however, MySpace evidence does have some importance in gang cases, particularly when it comes in through gang experts cops. And speaking of gang cops, I particularly liked the dissenting comment of Justice Mosk in the case:

It is a stretch to assert that defendant Harvey somehow committed or aided and abetted a violation of Penal Code section 415 — a misdemeanor — and that a killing is a natural and probable consequence of that target offense. Are the words, “where are you from?” “offensive words in a public place which are inherently likely to provoke an immediate violent reaction”? (Pen.Code § 415, subd. (3).) Here, it was Williams that shot first. There was no violent reaction from the words. It was only after the victim taunted Williams that the latter started shooting. To leap from this series of events to the killing being a natural and probable consequence of the “where are you from?” statement does not seem to comport with the purpose of the doctrine. If the expert testimony can supply the evidence necessary for the target offense, the natural and probable consequence, and the gang enhancement, we are getting to the point where the expert is providing all the evidence to support the guilty verdicts.

It may well be that Harvey is an aider and abettor, but I question the use of the natural and probable consequence instruction. I would reverse Harvey’s conviction on the basis of the instruction.

The italics there are mine.

I’m confused about Justice Mosk’s point, though. Technically, he is correct that we’re only “getting to the point where the expert is providing all the evidence to support the guilty verdicts.” But under the law in California, gang experts cops can provide all or nearly-all the evidence to support guilty verdicts relating to gang charges or enhancements. (Pen. Code § 186.22(a), (b).) In those cases, they not only provide the evidence, they actually tell the jury that the defendant is guilty. Under California law, it is perfectly acceptable for the expert cop to say, “The defendant is guilty of this crime.” Arguments that this is something for the jury to decide and not for an armed officer in full battle gear to decide for them repeatedly fall on deaf ears.

To be fair — something you don’t necessarily get from the prosecution or judge at trial when these points are argued — the appellate courts have insisted on something more than a mere opinion of the ultimate issue. For example, in cases where the opinion is based merely on the fact that the accused person is a gang member and the gang commits crimes similar to the one the accused person has committed, appellate courts have lately not found that to be sufficient evidence. However, in many of these cases, the problem is that the gang expert cop simply did not talk long enough. If he had spit out some litany of “facts” — which can be based on hearsay — that would provide a more solid basis than just “he’s one of them, they do this,” the courts have upheld convictions based only on evidence provided by the expert cop.

Now I also promised above to discuss how MySpace — or social networking evidence generally — is commonly used in gang cases. I’ve already noted that the refusal of the court to admit the videotape in the unpublished Williams case was not an indication of any problems with the way it was collected, as Gilliland appears to think. The problem was some mix of relevancy and the 352 appraisal.

I also think if the prosecution, instead of the defense, had sought to have the evidence admitted, it would have been. This is not just because the courts typically exhibit a pro-prosecution bias on evidentiary matters. (The San Jose Mercury News has a story on its own review of five-years of criminal jury trial appeals which “establish a pattern of judicial conduct that favored prosecutors,” but I can’t link it because it requires registration, which I refuse to do.) It’s also because prosecutor’s often advance social-networking evidence to show that someone is a gang member. Pictures on MySpace accounts showing accused persons or witnesses “throwing gang signs,” or wearing “gang” uniforms clothing and/or “associating” — either in pictures, or by writing on MySpace “walls” — with people the gang expert cop will identify as gang members are all potential sources of evidence as far as the prosecution is concerned. The courts usually agree. Forget the fact that, to paraphrase Freud, “sometimes a red shirt is just a red shirt.”

When it comes to evidence that someone is a gang member, or to prove something about the gang (like “how violent it is”) you can never have too much. (I’m currently handling an appeal on a case where something like 10,000 pages of discovery was provided regarding the gang my client was allegedly trying to promote or benefit by getting into a fist fight. Several — not just one — gang experts cops, including a Royal Canadian Mounted Police Officer, testified to almost everything in those pages, too. So you see how much 352 means when it’s the prosecutor proffering the evidence.) And, trust me, you don’t need much of a “foundation.” Gang experts cops are allowed to rely on hearsay, so “someone told me it was the defendant in the video” probably provides all the foundation needed.

All in all, Gilliland is at least correct about this one important point: social networking evidence can be important in court.

Oh, my title? As they say, “Meh….” It comes from a quote attributed in Williams to a co-defendant. He was apparently inviting the rival gang members to follow him to an area where no one would be able to see what was about to go down. I liked it for the title because when it comes to social networking, it’s getting harder to find such places.

Obama and the Political Equivalent of Jonestown

Fri, 05 Mar 2010 04:39:47 GMT

Presidents in the modern era tend to develop an image even if it is one that they don't want. Think George Bush and you have a variety of preconceived notions by the public in general: Amiable dunce, or war criminal. Clinton as the prevaricating philanderer, GHWB (Bush 41) Yankee patrician who said "read my lips" like he actually meant it, even though he didn't. Reagan, maybe amiable dunce, but I think most on the Left so loathed him, that they saw him as the evil precursor to GWB. Carter of course, was the incompetent busybody technocrat, Ford the uncoordinated dunce (which is interesting since he was probably the best athlete president of this century). Tricky Dick says it all, and LBJ as the rude, crude, Texan who escalated the war in Viet Nam and gave us the Civil Rights Act, even though it was against his party's interests. Barak Obama is starting to develop his own image, and it probably isn't what he wanted. Originally, the narrative was that he is this wonderful orator who could transcend party, race and the pettiness of politics and give us all a new America that could be proud of itself once again (although most of us always were proud).
Then, reality set in.
The Great Orator who enthralled the journalists who covered him, is revealed to be a captive of his teleprompter (remember corpse-man?) who is deeply narcissistic ("I won" and "the difference between 94 now, is that now you have me.") The great statesman is shown to be an indolent victim of Reid and Pelosi on the major legislation of his presidency (health care). Using the evidence of his actions, it is not unrealistic to think that Obama believes his own press. His explanation for the lack of public support for his plan is that the administration has failed to communicate it clearly. This in spite of the fact that he has given more speeches on health care than there are days of his presidency. Could it possibly be that he has communicated his plan, and the public rejects it anyway? That thought seems to be incomprehensible to the divine One.
But what about all of the polls that show the public support the elements of his plan, even if they don't support his plan? I am curious what the pollsters asked about the Louisiana Purchase or the CornHusker Kickback. Or, for that matter the entire process, which was supposed to be on CSPAN for all of us to see. Instead, it was done in the back of Harry Reid's office, pressed to the floor for a vote when the members never had a chance to read it, much less understand it. And now, in spite of the polls Obama vows to press ahead unilaterally with reconcilliation to put it into law. The theory is that the Democrats will be rewarded by the public when the law is enacted.
The foolishness of this plan can only be attributed to self-delusion. But the mania is being abetted and enabled by other members of Congress. The fact that they can say with a straight face that the plan will reduce the deficit and not raise costs is simply absurd. If they know it and ignore it, they are criminally complicit. On the other hand, if they really do believe this pap, they are a pretty good argument for making a test of sanity a requirement for federal office.
Obama seems to be orchestrating the political equivalent of Jonestown. Demanding fealty to his signature work, he is telling Democrats that they need to throw themselves on that grenade for the good of their party. Never mind that due to seniority rules in the Democrat caucus, the old bulls with the most seniority are the ones from the safest seats. The ones who will actually pay the price for this miscue are going to be the Democrats that were recruited to take over moderate and Red State seats.
Forcing this monstrosity through in the face of adverse public opinion will probably wipe out all of the gains that the Democrats have made over the last four years. Although Congressional districts have varying degrees of fluidity, the trend for the last two elections has been to the Democrats. Abetted by Republican fiscal idiocy and trumped up ethics charges, the Democrats are now showing that they can top even the Republicans at that game. In fact, I think it wouldn't be all that unreasonable for the House to return to the same number of Republicans and Democrats as existed in 2004. With such a mandate in opposition to the Democrat plan, its reversal is almost assuredly guaranteed. Then all the Republicans will have to do is proffer their simplified plan, and the public will recognize that the Democrats talk a good game but do nothing of importance.
This could very well mean the end of the Democrat Party except in isolated regional areas (the coasts and major failed metropolitan areas), representing the die hard leftists.
Quite the turnaround from a year and a half ago, dontcha think?

Legislating Morality

rick@rhdefense.com (Rick Horowitz) — Thu, 04 Mar 2010 18:03:14 GMT

This is not your typical “legislating morality” post. At least not typical of those I’ve seen before. Those posts are about things like prostitution, drug use, and similar allegedly — and in actuality frequently — “victimless crimes.” That’s not what this post is about. This post is about the growing movement to legislate a moral code and [...]

That’s not what this post is about.

This post is about the growing movement to legislate a moral code and the concomitant view that if it’s not illegal, it’s not immoral. I say “concomitant,” because I believe that the movement and the view are currently part of a nasty feedback loop that benefits neither the law, nor morality.

From what I see in the newspapers and occasionally hear about or see happening with my own eyes in Fresno, more of us are willing to ignore what is wrong. I don’t know if it’s because we’re inculcated with that tendency by judges and court personnel who repeatedly do what is wrong and/or wink at police officers who do what is wrong, or if the officers and judges behaving this way are simply a reflection of the wider societal view. I don’t know, that is, which came first, the chickens or the eggs. But everyone seems to think that doing the right thing is someone else’s job and that as long as what they’re doing is “legal,” it’s moral; as long as it’s not illegal, it’s not immoral.

Maybe it’s just a function of the fact that I work in a setting that brings me into contact with the government more often, but I see this as particularly a problem when it comes to how government agents, including clerks, law enforcement officers, prosecutors and judges perform their duties.

The problem, as I said, may be societally-driven. But with the law-as-the-only-moral-code paradigm growing, it is particularly irksome to see it in those responsible for the enforcement of laws, since law-as-the-only-moral-code gives them quite a lot of discretion in who gets punished for what, and how severely, and who gets a pass. With the average American committing up to three felonies per day, officers who don’t like someone can always find a reason today to arrest people. When almost everything is a crime meets the law-as-morality trend, prosecutors see themselves as saviors of society, high priests of the new moral code. “Dismiss because your client had a simple lapse of judgment? We can’t do that! All of society would come crumbling down!”

And don’t get me started on prosecution-oriented judges. The law-as-morality movement, combined with the tough-on-crime movement, has guaranteed that most judges today are prosecution-oriented, with disastrous results not just for criminals, but for those who merely sin. This is seen most clearly in California’s prison-crowding problem.

Even defense attorneys fall into the trap of passing the buck instead of doing what’s right, opting for the easy way out because they aren’t doing anything illegal by not fighting back against “minor” wrongs like the routine shackling of juveniles. Despite inflation, if I only had a nickel for every time another attorney told me, in response to my complaint about something that’s “just wrong,” that I have to learn to pick my battles, I wouldn’t have to fight for a living; I could retire.

Okay. Maybe not. But I could definitely go out to dinner a few times.

At any rate, if we don’t have to do something — if it’s not required by law — we don’t. And there’s nothing wrong with that. After all, if there was something wrong with that, it would be illegal.

“So what?,” you may ask. “With all the differing views on morality today, we have to pass laws to ensure a minimal moral code is adhered to by all.” That would be fine, if we were talking about a minimal moral code. But we aren’t: increasingly, we’re legislating an entire moral code. We’re creating a society where an independent moral system no longer exists: only what’s illegal is immoral.

This attitude, taken to an extreme, has unpleasant consequences. People stand around and gawk after an old man is hit by a car, for example, without reporting it or trying to help. Another young man sees his friend molesting and murdering a seven-year-old and doesn’t stop him.

Last fall, in Richmond, California, numerous disgustingly sick people stood by and watched for nearly two hours while a 16-year-old girl was gang-raped right outside a high school homecoming dance. As you can tell by my choice of adjectives to describe these borderline “human beings,” I’m not favorably inclined towards them. I can only hope and pray none of them are fertile.

These things — horrible as they are — are not illegal. These things — horrible as they are — should not be illegal.

But various members of the California legislature — always quick to pander to the public outrage over public safety failures — have proposed a cure that is worse than the disease: they want to make it a crime to fail to report a crime.

If I’m as right as I think I am, this can only make the situation worse, because it endorses the view that only what’s illegal is wrong, dragging along the corollary via a false application of De Morgan’s, that what’s not illegal isn’t wrong.

I don’t know if it’s possible to turn back. Maybe, even if I’m right, we’ve no choice now but to continue to legislate morality. Maybe we’ve already reached the point where, without doing so, there is no morality. If so, then we’re lost.

We’re lost because a personal, familial, or community-based and personal, familial, or community-fed moral system has something critical that a law-as-morality system does not, particularly the one we’re building in places like California. Communities help inculcate their values; the law merely punishes violators, leading to an increase in criminal behaviors. This is particularly problematic because most people don’t know what’s illegal until they’ve been arrested and charged with violating the law.

This is a terrible and hopeless combination: a culture that believes anything goes except that which is illegal, but which does not teach what is illegal.

So now what? I’ve talked myself into a hole here. I don’t know what the answer is. I don’t know if there is an answer. Maybe an emphasis on rehabilitation — at least giving people some kind of moral compass after the fact — would help.

The only thing I think I really know is that it seems clear a system of law-as-morality, focused only on punishment and being tough on “crime,” is only going to make things worse. And I think it’s up to those of us who work within the legal system to try to reverse the trend and fix this, if we can.

Ultimately, as I said, I don’t know the answer. I started writing this entry partly to see if I could figure out what I think and why the concept of passing so-called “Bad Samaritan” laws bothers me, even while bad samaritans also bother me. (My discontent is even more acute thinking about what happens when Bad Samaritan laws collide with Good Samaritan laws, as they ultimately will, but that’s going to have to be a topic for another article.) One reason I write is to see what I think. In the end, the only thing I really know is that it still feels wrong to attempt to legislate morality beyond the very basic level.

Maybe the real question, then, is “what is the basic level?”

Colorado Supreme Court Finds Pay-to-Play Law Unconstitutional

Wed, 03 Mar 2010 18:35:01 GMT

The below Colorado update was written and circulated today by Government Contracts attorneys C. Richard Pennington and Tyson Bareis out of McKenna Long & Aldridge LLP’s Colorado office.

The Colorado Supreme Court recently struck down a law that prohibited holders of sole-source state and local government contracts from making contributions to elected officials in Colorado. As we previously reported, this case is the latest episode in the continuing tension between a public that is increasingly skeptical of government contractors’ campaign contributions and the First Amendment rights, including the right to participate in the political process, that are afforded to all individuals and organizations. While the Colorado Supreme Court’s decision should rightfully be viewed as a victory for contractors and the First Amendment, the decision will not be the end of this tension or such laws.

In November 2008, Colorado voters narrowly passed Colorado’s Pay-to-Play law, which took the form of Amendment 54 to the Colorado Constitution. Citing a "presumption of impropriety between contributions to any campaign and sole source government contracts, "Amendment 54 prohibits holders of sole source state and local contracts from contributing to any political party or any candidate for elected office in the state. The law defines a sole source contract as “any government contract that does not use a public and competitive bidding process soliciting at least three bids prior to awarding the contract.”

The Colorado Supreme Court held that the Pay-to-Play law was unconstitutional in its entirety because, among other things, the law was not drafted narrowly enough to achieve its goal of eliminating the appearance of impropriety in the award of sole source contracts without significantly limiting constitutionally protected activity. The Court also noted that the cross-jurisdictional nature of the Amendment meant that fundraising in local governments would be limited by a donating entity’s contractual relationships with other, unrelated jurisdictions, like state government.

For contractors doing business in Colorado, the state’s Supreme Court decision means that they are no longer subject to the Pay-to-Play law’s prohibitions on political contributions. Importantly, however, the decision does not eliminate the possibility that Colorado may seek to enact laws similar to the “Pay-to-Play” law that was found to be unconstitutional. Instead, the Court’s decision implied that similar laws, even if they specifically target contractors, may be constitutional as long as the laws are drafted narrowly enough to address the laws’ stated concerns without significantly limiting constitutionally protected speech.

While it is impossible to predict future legislation, in light of the current anti-contractor sentiment and the political gains that can be had by proposing sweeping legislation to eliminate perceived “corruption,” contractors in Colorado and elsewhere should not expect the Colorado Supreme Court’s decision to prevent attempts to enact similar “Pay-to-Play” laws. MLA will continue to follow efforts to enact such laws, and contractors may wish to involve themselves in responding to such proposed laws by educating lawmakers and the public as to the ineffective and counterproductive nature of such laws.

BREAKING NEWS: Indiana Ethics Bill Passes Without Pay-to-Play Language

Wed, 03 Mar 2010 15:51:51 GMT

In a move that avoids an inevitable constitutional challenge, the Indiana House yesterday unanimously passed House Bill 1001, authored by House Speaker Patrick Bauer and co-sponsored by Minority Leader Brian Bosma, without the original pay-to-play language which was struck from the bill by the Senate.

Pay-to-Play Still Up In the Air for Indiana

Wed, 03 Mar 2010 02:52:45 GMT

Last Thursday, the Indiana State Senate passed a comprehensive piece of ethics legislation by an impressive 50-0 vote. Conspicuously absent from the Senate bill was previously-included language containing "pay-to-play" language, including a provision that would bar vendors holding or seeking state contracts worth $100,000 or more per year from donating to the campaigns of candidates seeking state office. At issue now is whether a House-Senate conference committee will reinstate the stricken language before sending the bill to Governor Mitch Daniels for signature.

Even without the pay-to-play language, the proposed legislation has teeth, in that it imposes a one year “cooling off period” on lawmakers seeking to become lobbyists, a requirement that lobbyists report conflicts of interest involving more than one of their clients, and a ban on incumbents or candidates for statewide office raising campaign funds during budget-writing legislative sessions.

The once on again, now off again, perhaps on again, pay-to-play language is notable for its breadth as well as in the sanctions it imposes for non-compliance. The proposed pay to play language requires all entities whose business with the state aggregates more than $100,000 to maintain registration information in an online, downloadable format, for four years from the award of the contract or for a year after the termination of the contract, whichever is longer, and prohibits the company , its “executives”, their spouses, and their minor children, from making any contributions to any state officeholder or candidate.

We’re watching this one. If the proposed pay-to-play language is reinserted and signed by (purported dark horse presidential candidate) Governor Daniels, Indiana will join the ranks of those states imposing extremely stringent contribution limitations that the regulated community will struggle to comply with. Indiana will also join the ranks of states in possession of a statute likely to encounter significant difficulty in overcoming First Amendment challenge in the courts.

A Liberal Democrat I Would Support

Tue, 02 Mar 2010 15:32:40 GMT

Micky Kaus of the Kausfiles has taken out papers to run in the Democrat Primary against Barbara Boxer. I like Micky and read his blog often. He has good sense and is intellectually honest. Unlike SENATOR Boxer.

A Twist on the Nigerian Minister Who Needs to Transfer Money to Your Account

Tue, 02 Mar 2010 15:20:45 GMT

An American woman is accused of bilking Nigerians? The irony of this simply won't quit.

Self Ddelusion Is a Wonderful Thing.

Sun, 28 Feb 2010 17:22:55 GMT

The ability to fool yourself is a necessary tool for many people. Otherwise we would be running from our jobs, screaming, just to try and give actual meaning to our lives. Nonetheless, it is always a good idea to every so often take stock of your assumptions and test them against your opponent's views to see if they are really valid.
For instance, I honestly believe that the Tea Party movement is a valid expression of rage at government gone mad. That it manifests itself in Tea Party get togethers and in the election of Sen. Brown in Massachusetts for crying out loud. But what if I am wrong? What if the Tea Party movement is nothing more than an Astro-Turf minimal impact media creation that does not reflect current public opinion? If I am wrong, the Democrats would certainly be justified in ignoring the movement. But the idea that it is Astro Turf is certainly not going to be proven by the high quality of professionally done signs. Maaybe if they hooked up with SEIU they could get some well made ones. But the bottom line comes down to, if the Tea Party movement is really inconsequential no one would pay it any heed. Instead, Democrats under the direction of Organizing For America are slandering them. Opponents of the Tea Party movement are calling them violent when all of the violence comes from Obama supporters. Tea Party members are also accused of being racists for opposing the policies of a black President. Never mind that the opposition to a white president is just good civics.
The reason I bring this up is related to the Democrat's suicide mission to pass their monstrosity of a spending bill that they call "health care reform" Or "health insurance reform" or whatever they seem to think will get a greater chunk of control over one sixth of the economy.
I had said last August that the Democrats would be well served to have Health Reform fail. Sure they had 60 votes in the Senate and enough of a majority in the House that they could let many vulnerable Democrats vote against the bill for self preservation. But passing the bill would only raise taxes for years before the first benefit was paid. And we all know how well delayed gratification plays in this country. But as Senator Alexander has said, the Democrats are on a Kamikaze mission to pass this monstrosity. Democrats are justifying it by saying how polls show tha tthe individual aspects of the bill are popular. I just wonder how poplular were the individual parts of the Louisiana Purchase, or the CornHusker Kickback? Or for that matter, the entire bill being slapped together and voted on before anyone ever read them? In a way it makes sense. The Democrats have the largest majorities that they have had in years, and if they fail to do this, how can they ever argue for a leadership role again? Now the question becomes, what is the price that they will pay for trying to ram this through? Democrats and especially President Obama feel that the American popular opposition to his plan is based on his failure to communicate what the plan is. But what if they do understand what the plan is? I don't think Democrats are able to grasp that concept.
Nancy Pelosi, Harry Reid and Barak Obama see this as a mission that needs to be done in spite of public opposition. They are apparently willing to sacrifice their majorities in both houses of Congress this year to make this happen. But in reality, they aren't making sacrifices themselves. Most of the Democratic leadership is coming from solidly Democratic districts that would bever vote for a Republican in any event. Just think about Michigan, where government policies have driven the state to disaster, and yet Democrats still retain control. Or California where they ostensibly have a Republican governor but a gerrymandered setup of districts that will guarantee the Democrat seats are safe. No, the seats that are at risk, are those gained over the last two elections and are made up of mostly moderates. Those people are going to be the sacrifice for the egos of Obama Reid and Pelosi.
Now, if any of these moderates and Blue Dogs actually examine their previously held assumptions, they just may figure out that their only hope for survival does not lie in being a sacrificial lamb for someone else's political expectations.

Anonymous Bloggers

rick@rhdefense.com (Rick Horowitz) — Sat, 27 Feb 2010 22:05:55 GMT

There is a group of lawyers I’ve come to know over the last six months to a year and to whom I look up because most of them have more experience in their pinky fingers — probably most of them have shed more law experience through their pinky fingers — than I yet have on [...]

Don’t get me wrong. From what I’m told, I’m a fine lawyer, even if it doesn’t always feel that way to me. And yesterday, with numerous families surrounding me as I exited a courtroom, all asking for my card and whether or not I could represent their family member, I started to think Year Four as a lawyer might actually be fun. But these guys are like gods to me. They are what I aspire to be.

In some ways.

One thing, though, that I’ve never completely understood — and I’ve remained silent about it until now partly so as not to offend the gods — is their treatment of other lawyers who utilize the Internet differently than they think should be done. My Pantheon frequently castigates others who choose to blog either under their law firm name, or anonymously, for example.

Frankly, I just don’t get it — especially the anti-anonymity thing.

The posting of opinions anonymously has a long and quite remarkable history, particularly (or maybe this is my own provincialism speaking) in the United States of America. In fact, a good argument could be made that the United States would not have existed without anonymous opinion writers and publishers.

Maybe blogging anonymously doesn’t bother me as much because I unfortunately do not possess the photographic memory of some of those I admire. I tend to read things and remember much of what I read, but, for some reason, I don’t usually remember where I read something, who wrote it, or the names of any people who might have been involved in what was being written about. Possibly, then, I don’t care about the anonymity because I won’t remember the names anyway, unless, of course, I encounter them again and again. (I think it took me about a month to remember Scott Greenfield’s name, but that’s because I read his blog more than others; pretty much daily now.)

Scott surprised me the other day, by the way — and first started me thinking about writing this post — when, in a footnote, he criticized a blogging attorney for naming his blog the “Koehler Law Blog,” just because his name happens to be “Koehler” and the blog is a “Law Blog.”

But what finally makes me speak out is Norm Pattis, one of the few bloggers who compares (in my mind) favorably to Scott Greenfield, taking yet another great blogger to task because a) he blogs anonymously and b) he disagrees with Norm about something. Norm normally “agree[s] with what is written there [on the anonymous blogger's blog]“ so he gives him a pass for being a coward.

Ok. What he said was he gives him a pass for his “feet of clay.” I take that as an accusation of cowardice. A completely unfair and false accusation of cowardice unbefitting someone of Norm’s stature and intelligence.

Anyway, now they disagree, so Norm is apparently no longer willing to give Gideon the Pseudonymous a pass. Hey, at least he has a principled reason for his change of heart.

Norm notes that people have various reasons for blogging anonymously.

Sometimes it is cowardice or fear of the consequences; sometimes it is a juvenile love of mystery.

Apparently blogging anonymously is always a negative thing. You get to be juvenile or a coward.

Like James Madison or Alexander Hamilton, neither of whom were much known for courage and bravery; both of whom “blogged” anonymously and thereby assisted in the birth of our nation. In keeping with my piss-poor memory for where I read things, I can’t recall exactly where I got this, but I recently read that Madison, at least, deliberately chose to write anonymously — pseudonymously, to be more accurate, which is how “Gideon” writes, although Norm calls it “anonymously” when he’s not painting it as cowardly — anyway, Madison deliberately chose to hide his identity so as not to have his personal reputation, whether for good or bad, overpower the arguments he made.

I can think of a number of other reasons for blogging anonymously, particularly for someone in Gideon’s position. Increasingly, employers — particularly and ironically employers who happen to be governments — do not approve of employees blogging. There is a fear that something will be said that will have blowback for the government employer. Simple disclaimers are not enough for these employers; if you work for one of them and you blog, you’re anonymous, pseudonymous, or fired.

What would happen to all the good Gideon does if he were fired for expressing his opinions online?

Norm and the other attorneys who blast anonymous or pseudonymous bloggers can’t be blamed much, however. They’re simply unable to break out of the piss-poor training they received in law school, perpetuated by the actual practice of law, where everything is, in the end, actually based on a political game wrapped in a logical fallacy: a kind of “argument from authority.”

As the law is normally practiced, logical arguments are secondary; knowing who stated the rules one hopes to rely upon is primary.

Actually, I’m being a bit simplistic with that characterization — though certainly no more simplistic — and a whole lot less disingenuous — than Norm is with his attack on Gideon. The practice of citing, rather than simply stating one’s argument, carries the additional burden, allegedly, of keeping the law somewhat consistent. It doesn’t really work that way, but stare decisis is the alleged rationale behind requiring citations — names of courts and opinions – to back up one’s argument.

Other than that, though, who really gives a damn for the name of the person who makes a particular argument. The argument should stand or fall on the logic and factual foundation of the argument itself.

But back when Madison and Hamilton — and numerous others involved in the founding of this nation — were writing anonymously, their arguments were irksome to their opponents, as Gideon’s are to Norm. A great deal of time was spent trying to figure out who was who.

Because, in the end, when you’re worried that your own arguments are not sound enough to withstand criticism, it helps if you can engage in a little argumentum ad hominem.

And that’s just a little more fun if you know who the hominem is.

Coming Up: Week of March 1, 2010

wraftery@ncsc.org (Bill Raftery) — Fri, 26 Feb 2010 14:28:24 GMT

Session Start Florida – 3/2 Crossover Colorado – 3/8 Adjourn New Mexico – 3/5

Session Start
Florida – 3/2

Crossover
Colorado – 3/8

Adjourn
New Mexico – 3/5

Issue 4:8 is out

wraftery@ncsc.org (Bill Raftery) — Fri, 26 Feb 2010 01:32:45 GMT

Issue 4:8 (February 19) is here.

Major Ethics Reform Passes New Mexico House, But Dies on Senate Floor; Changes May Come During Special Session

Thu, 25 Feb 2010 17:45:27 GMT

Despite the numerous "pay-to-play" scandals that have rocked Sante Fe in recent years, numerous pieces of major ethics reform died on the floor of the New Mexico State Senate during the waning hours of the 2010 regular legislative session.

Specifically, HB 118, which would have placed significant restrictions on the activities of lobbyists and certain state contractors, passed the House less than 48 hours before the end of the session. Despite hope from supporters of HB 118 that it would find its way through the Senate, the legislation stalled in the upper chamber.

Had it passed, HB 118 would have arguably made New Mexico one of the toughest "pay-to-play" jurisdictions in the country. The legislation, which passed the House 46-24, broadly prohibited contributions from lobbyists, state contractors and principals of state contractors. Indeed, HB 118 placed total prohibitions on contributions from lobbyists, state contractors, principals of state contractors, and even "seekers of targeted subsidies" to any "candidate for nomination or election to a state public office or political committee established the candidate." Contributions to certain political committees would have been similarly prohibited.

Notably, legislation which would have allowed for the creation of an Ethics Commission in New Mexico, as well as a series of other open government initiatives that were lauded by advocates of transparency also failed to pass the Senate.

Due to the failure to adopt any reforms, there is speculation that some package of legislation will be addressed during an upcoming Special Session.

Given the upcoming election season, it would seem as if New Mexico legislators would try to adopt some sort of legislation that can be sold to constituents as "good government reform" during the Special Session. We at the Pay-to-Play to Law Blog will continue to monitor this situation for any new developments.