Odds and Ends

Sometimes, as a criminal defense lawyer, I have the feeling from time to time that I'm not totally appreciated, because I'm a criminal defense lawyer. And it's not just at parties when someone asks me, how can you defend such scum? For example, I must have had our cleaning lady over to our house hundreds of times, but I've never even been invited to hers.

Back in the Saddle Again

Thank goodness the writer's strike is over. I can get back to the blog again.

Wishful Thinking?

Idaho Senator Larry Craig, who privately enjoys a man-to-man talk from time to time, but publicly likes to demean gay men, now has taken to demeaning Presidential candidate Mitt Romney, who I'm pretty sure has never had the pleasure of addressing the senator underneath a toilet stall. According to CNN, Craig said Romney, his former campaign boss, "threw me under the campaign bus" when Romney learned Craig had pleaded guilty to playing footsie with an undercover, top-of-the-toilet, cop.

Dream on, Senator. Hey, and while you're at it, why not keep your word and give up your seat to someone who deserves it (your Senate seat, that is)?

Imbalance of Powers

The United States Constitution, normally a touchstone not only for lawyers but all citizens, residents, and visitors of this country, may seem out-of-touch with reality to immigrants trying to pass their civics test to become naturalized Americans.

One question, for example, asks "What stops one branch of government from becoming too powerful?"

The real-world answer, in the real world of the Bush executive branch, is of course, "Nothing."

But for wannabe Americans who are better advised to adopt the current Administration's low regard for "reality-based" governance, you should still answer, "Checks and Balances" or "Separation of Powers." And welcome to America.

Indecent Charges

In my hometown (Boulder, Colorado), I'm sorry to say at least one of our police officers expressed a prurient interest in a high school senior by writing him a ticket for indecent exposure after the boy tried to streak (mostly) naked across a football field. He (the boy, not the officer) was attired in purple paint and stylish racing flats. I say the officer's interest was "prurient" because indecent exposure requires that the boy "knowingly expose(d) his genitals to the view of any person under circumstances in which such conduct is likely to cause affront or alarm to the other person."

Now the only people who apparently might have been offended were the officers themselves, because the lad was arrested in flagrante but not delicto, before he had actually started to streak the field. As far as I can tell from the newspaper account, there were no other witnesses to this shocking, absolutely shocking behavior. And we all know what kind of affront or alarm it must have caused the officers to prompt them to scotch-tape snack napkins over the child's purple pubescence. It is devoutly to be hoped that our guardians of public decency allowed the boy to apply the sticky strips himself.

The law itself presupposes circumstances that are NOT likely to cause affront or alarm. Surely streaking is one such circumstance, where the only alarm one might experience is that the poor kid will trip and suffer a debilitating turf-burn.

Other students have started a campaign to free the misdemeanant. Of course, free him. And in the spirit of giving people the benefit of the doubt, let's free the officers too, and cease this fruitless speculation about whether they're spending their off-hours in a museum somewhere, ogling a Michaelangelo.

We Get By with a Little Help from Our Friends

A Filipino judge, unconscionably fired from his bench for hiring invisible (at least to the less perceptive among us) elves as court clerks, wants his job back. Florentino Floro Jr. says that if he is re-elevated to the bench (judges must be elevated to the bench because it's a few steps up) he'll call off the king of the elves, who's turned hit man, inflicting illness and car accidents on Floro's former bosses, the Supreme Court.

Floro says the elves only help him predict the future on his personal time, and never used them to help him make judicial decisions. Of course not: that would be unethical.

Fifth and Goal

It has always been about getting O.J. Simpson. He is now being held without bail on a charge that other people with a high public profile -- or no public profile -- would be released on bail or no bail at all.

And why not? O.J. Simpson murdered Nicole Brown and Ron Goldman and then went golfing. What many people -- maybe most people -- don't realize is that exactly the right thing happened in both his murder trial and his wrongful death conviction. California prosecutors dazzled by their months and months of fame had a slam-dunk case and then blew it. The jurors were right: even when everybody knows the defendant is guilty, prosecutors still have to prove it. Instead they turned the trial into a fashion show and stood gawking when the model walked down the runway and kept walking.

Game over?

Not really, as you are about to see. Nevada will take its turn with Simpson, and if that state's police and prosecutors can avoid screwing up they will get the conviction they didn't get in California, and a judge will sentence Simpson to consecutive terms the effect of which will be to keep him in prison for as long as would have the murder convictions.

Don't like the outcome of the game? Put a little more time on the clock.

A Man of Big Little Words

By the way, my translation program translates "über" as "more über." I knew that.

Perspective

Did you have a bad day today?

Protesters in Chile celebrated, with gusto, the anniversary of the murderous coup that brought über-murderous dictator Augusto Pinochet to power, killing a policeman by shooting him in the face.

The parents of 26,575 children, aged 5 or under, buried them today, as other parents bury the same number of their children, aged 5 or under, every day.

Three more American boys and girls serving in Iraq were put in the ground; who knows how many Iraqis went under (we don't like to count those boys and girls).

Another child who isn't old enough to take her first drink spent the day recounting to police how she had been raped, stabbed, beaten, and burned for a week.

A Tennessee man made the headlines by becoming the first guy the state strapped into an electric chair and burned and fried in almost 50 years. I'm sure he deserved it; I'm not sure the rest of us did.

And Woody Allen opened his New York Times this morning to learn that in five billion years the sun is gonna die.

Did you have a bad day today?

Singing for His Life

I heard Luciano Pavarotti sing live only once. It was on the Esplanade along the Charles River in Boston. Scores of thousands of people sat on the grass or stood to hear the greatest voice of the century. Many of them wept openly at the stunning beauty of the sound. I was one of them.

I don't believe in God, but hearing that man sing, I knew why people do believe in God. This morning, although I know it isn't true because there are and will be other voices to remind us of what we call divinity, it feels as though there is a little less God on this planet Earth.

The Crime of Monsieur Craig

I suppose it's fun to see one Republican exemplar of family values after another elbow his or her way to the front to decry the sins of Senator Larry Craig, and urge him to go home to his private Brokeback Mountain. And sins he has aplenty. He once tried to destroy a better legislator, and a better man, Barney Frank, for openly loving another man, where Craig preferred the loving attentions of strangers he met in bathroom stalls and somehow never got around to introducing to his wife. He's opposed the right of homosexuals to defend the country they love. He's opposed their right to commit their hearts and souls to the men and women they love.

But none of the exemplars of family values decry these sins, nor the hypocrisy that rots the Senator's moral gut. They want him to resign because -- oh my God -- he's a homosexual. That's going to hurt the party for sure.

I want him to resign, too. But not because he's a homosexual. I. Don't. Care. I want him to resign because he's a liar and a cheat, and while I realize those are common, and perhaps requisite, qualities on Capitol Hill, I don't really like it.

I'd also like the resignations of every man and woman who think it's a crime for a man to ask another man, or woman, or dolphin capable of making an informed choice, if he or she would like to have sex. I don't know about you, but I don't really want my police officers serving and protecting the community by sitting in a toilet stall and playing footsie with the neighbors.

Comedians

They say three strikes and you're out. In the case of the University of Colorado, in my hometown of Boulder, three strikes and you're outed. In three recent incidents (though one of them long-brewing), our supposed bastion of education has proved itself intolerant to, of all things, education. Not to mention free speech.

First up was a professor of previous little note, who had the utter gall to point out that there may have been actual reasons that Middle Easterners would hijack airplanes and run them into American buildings. Ward Churchill, who I do think is a sort of pompous windbag (never a disqualification for a university professor before), made the mistake of publicly disagreeing with Americans who prefer to believe all those criminals were simply crazy people out of their minds with dreams of virgins waiting on the other side of the burning buildings. For this the university bent over backwards to find reasons Churchill should be fired, while denying his perhaps intemperate remarks had nothing to do with their sudden investigation.

Next, earlier this week a mentally ill man attacked a student on campus, injuring him slightly. The university response was to round up every employee with a mental health history and suspend them as prospective threats. I'm sure there must have been a young black student arrested sometime in the past few months, for something. I'm surprised the university lets even one black man or woman walk around campus unrestrained. The same goes for the law students there.

Finally, an a capella group trying to recruit fresh voices now finds itself one voice short. An audition questionnaire jokingly referenced the poor student who suffered the slight injury just mentioned. The offending question asked how prospective basso profundos felt about the incident, and included as one of the scripted choices: "Mad someone got that guy before you did." The resulting uproar, much greater than the one heard after the university turned on a vulnerable group of employees who did nothing but their jobs, ended with the firing of the singer who wrote the silly question.

The name of the a capella group? The CU Buffoons, not to be confused with the folks who fired Ward Churchill and cleared the campus of employees tainted by mental illness. (Does anybody still work there?) The surprising thing to take from all this, I suppose, is that these guys really ARE buffoons, only some of whom can actually carry a tune.

Vaya Con el Diablo

Alberto Gonzales is gone but with any luck not forgotten.

He was a lawyer who devoted himself not to the law, but to a man. He was a defender of torture, a defender of illegal search and seizure, a defender of warrantless eavesdropping on American citizens, but he was never a defender of the Constitution.

If he is missed it will be because we need always to keep the enemies of freedom front and center.

Fraternizing with the Enemy

I know many defense attorneys who, by nature or perhaps by experience, absolutely hate the men and women who sit in the attorney seats nearest the jury: the prosecutors. There are, without doubt, prosecutors who for the sake of the profession and their communities should be practicing anything but law. That's just as true about defense attorneys, by the way.

But there are also prosecutors who, like many of their defense counterparts, are the glory of the profession. A wonderful chance to take a look at two good ones and 10 bad ones at the same time (not necessarily an accurate ratio of good-to-bad prosecutors) can be found here where Sherri Katz and Bob Bennett name "The 10 Worst U.S. Prosecutors 2007." Both these former prosecutors consider themselves to have been on the "good" side of the ledger, and from what I've seen of their blog, "Bad Prosecutors," I agree. The list, and the blog, are a public service.

Yeah, But on a Sliding Scale You'll Pay Only $750 an Hour

The Wall Street Journal reports that top lawyers in New York are now billing $1,000 an hour. Apart from giving criminal defense a whole new meaning, one anonymous lawyer worried that billing a grand for 60 of the finest minutes (a lot of) money can buy could be "a possible vomit point for clients." So if you're going to be accused of a crime, do your best to get accused in Colorado. It's a lot less messy around here.

And Speaking of Beginnings

The first time I ever thought deeply about the law was when the State of California strapped my cousin Foster to a chair and made him breathe poison gas.

Foster had shot his wife as she slept. He held a pillow against her face and pressed the gun against it so the noise wouldn’t disturb his two kids sleeping upstairs. It woke them anyway, and the police found Foster kneeling on the floor, his arms around them, rocking back and forth, Foster’s shirt soaked with their tears and their mother’s blood.

I learned this through my own mother’s tears as she stood bending over the kitchen table, staring at a newspaper clipping that told about Foster’s execution the day before. She said Foster was a good man who had gone insane. I read the clipping again and again. How could they take his life like that? Could they take mine when I was grown? Could they take my son’s? If he really was insane, was it right to kill him? I didn’t know, and no one else was even talking about it.

Three years later another man sat in the same chair where my cousin Foster had sat, and everyone was talking about it. His name was Caryl Chessman.

I decided then to become a lawyer, and find out why Chessman’s life was so championed, and Foster’s so forgotten.

My first law partner was Richard Milner. Our firm was Rosmarin & Milner, though if you asked Dick Milner about it, he might remember it as Milner & Rosmarin. We two lawyers were going to slay every dragon of injustice, give voice to those who had none, and make the world better. Those at least were our dreams. I was 13 years old.

Sometimes, bad things happen. That same year my mother died; our family fractured. So did Rosmarin & Milner: there was no money for law school.

Instead I worked three jobs to pay my way through college, and persisted despite setbacks that saw me graduate well after most of my fellow freshmen had earned their degrees. Though I put aside any idea of being a lawyer (in part because I discovered a small talent for writing), I never lost the zeal for justice and fair treatment. As a college journalist I investigated what seemed the unfair denial of tenure of one of my professors. The series won the William Randolph Hearst Award for College Journalism.

I turned full-time professional six years before graduation, and continued to pursue the kind of news reporting I felt could make a difference in the community. I continued to win awards, for investigations of unfair business practices, of corruption in local government, of organized crime. Beyond that kind of formal recognition for my work, I took no less gratification in certain expressions of unsolicited appreciation offered by the subjects of those news stories:

• the crooked owner of a waste disposal business who wrote to object to being called a “trash magnate.”

• the planning commissioner who—after being indicted and convicted partly on the evidence uncovered by my work—as he was being led off to prison, turned and shook my hand, and said I had been fair and had done a good job.

• the spokesman for a commercial real estate giant in California who was overheard by a colleague to say that I was ruthless when I saw injustice and would never give up.

• a trio of heavy–set “vice presidents” of a diamond business, run by organized crime, who followed me around in hopes of intimidating me from featuring their company in my newspaper. Their associates had successfully discouraged an Arizona reporter the year before by blowing him up. We featured them anyway, I stayed intact, and they moved back to the desert.

Then came the ‘80s. The “but enough about you, let’s talk about me” ‘80s. I was as guilty as anyone else: I wanted to make some money, and I discovered I could make a lot more of it writing advertising than I could chasing crooks with a typewriter.

Advertising filled my wallet but not my soul. In 1986 I enrolled in Naropa Institute to study psychology, and to work with people in crisis. As an intern, later an employee, of the Emergency Psychiatric Service of the Mental Health Center of Boulder County, in Colorado, I saw people at their worst, and helped them find their way back to their best (or at least their not–so–bad). What I learned of human nature there, and what I was able to give back of my own human nature, was useful and of value to me (and I hope to others) in law school, and I trust will continue to be now as a lawyer.

But I'm getting a little ahead of myself. I wanted to tell you what brought me to this beloved and reviled profession.

Sometimes, good things happen. I met a woman, loved her, had children with her. The years before law school I spent nurturing those little sweethearts, work that was, and continues to be, at least as nurturing to me. When both of them had started school, and were beginning to find their own voices, I was reminded of my own childhood aspirations.

And so I remembered Foster, and what I wanted to be.

Life is long, its experiences rich, and a human being may be many things: a journalist, an ad man, a therapist, and, some scant few decades after that boy declared his heartfelt intention, a lawyer.

The Best Way To Begin

The best way to begin, is to begin.

And so this first post is intended to be nothing more than that: a beginning.

Drunk & Disorderly will be a legal blog, but at the same time it will be a people blog. People commit crimes, people are fairly and unfairly charged, people suffer in and out of court. When was the last time your dog was pulled over for a DUI?

This is a place for me. A place to sound off, think out loud, and share some things both important and not too important to me. I should probably do some thinking in quiet before I write anything here, for your sake and mine, but I don't want this space to be measured or academic in any way. I'm not sure I could even be academic. For a while -- maybe for a long while, maybe forever -- things will be pretty chaotic. I like chaos. You'll get a lot of it here.

I'll write here whatever I like, whenever I like. Most of it will be related to legal issues in general, and criminal defense topics in particular. Some of it will be related to nothing at all. None of it will be legal advice. If you need legal advice call me or one of the 18,000 other lawyers in Colorado, make an appointment, and we'll take your money.

This is a place for you, too. A place to find information, a sympathetic ear, maybe a laugh or two. I'll try not to bore you. I'll sure as hell try not to bore me.

There. That's it. That's my beginning.