Archive for April 2006

I Will Be Out Of Town

April 29, 2006

Until Wednesday. So I probably won’t be blogging with my usual frequency, if at all. Don’t fret though, I will be back at full speed soon.

Actually, I will be doing the fretting. This is really addictive. It’s an outlet for all kinds or random thoughts. Blogging lets me pretend I have creative writing skills. I have been able to appreciate the wit of people whom I would never otherwise meet. I am really glad I did not discover this until after completing my education. I don’t want to think about what my grades would have been otherwise. Anyway, I do not know how well I am going to handle three days away from my blawg. Hopefully I will find a computer and internet access somewhere along the way.

Otherwise, see you Wednesday.

Confession Time

April 28, 2006

Regular readers know that I have been a bit critical of Mini-Moore for his infamous op-ed piece in which he declared his intentions to reject the U.S. Supreme Court case of Roper v. Simmons. Roper made it unconstitutional to execute people for crimes they committed before their eighteenth birthday. The confession is this: I agree with Mini-Moore that Roper was a very bad decision.

What brought it to mind was this story. In essence, two race warriors were offended that some Hispanic kid would dare attempt to befoul the pure lips of white girl. These two red blooded Americans decided to teach the sorry Hispanic a lesson:

The attackers forced the boy out of the Saturday night house party, beat him and sodomized him with a metal pipe, shouting epithets “associated with being Hispanic,” . . . . They then poured bleach over the boy, apparently to destroy DNA evidence and left him for dead, authorities said. He wasn’t discovered until Sunday, 12 hours after the attack. The victim, who was not identified, suffered severe internal injuries and remained in critical condition Thursday.

The victim is probably going to die. When he does, one of the defendants will face the death penalty. Why one but not the other? Because one is 18, the other 17. That’s right, one defendant evades death, not because he is less culpable, but because of a few days on the calendar. Same crime, same acts, different penalty for no reason other than a date.

The idea behind Roper, basically, is that kids are less capable of forethought, planning, and self control than normal adults, and thus less culpable for misconduct than normal adults. However, whether or not it makes them less culpable, the deficiencies are only true as a general matter. There are exceptions. We all know kids who are smarter than many adults.

Because it is generally true that kids have these deficiencies, for the sake of administrative convenience we set ages for driver’s licenses, alcohol and other things. That does not mean no-on under 17 is capable of driving. It means that most of them are not and it would cost too much to individually examine every child who wants to be the exception.

Criminal trials, though, are as individualized as it gets. The whole thing, especially in a capital case, is about whether this particular defendant committed this particular crime and so deserves this particular punishment. If that particular defendant is too immature to deserve the ultimate penalty, the mechanisms are already in place to make that determination. There is no need for an absolute prohibition.

This story is one example of the arbitrary results of the rule. You can read Roper, or Adams (the case in which Alabama is asking Scotus to overrule Roper. The facts are here, at page three.), for another. If it is constitutional to execute an adult, I see no reason why it should not also be constitutional to execute the defendants in these cases.

An Exercise In Statutory Interpretation

April 28, 2006

I had a potential client come into my office and explain that she was accused of stealing $1,200.00 from her employer. So I go to the code to see what level of crime that is; i.e. whether it is first or second degree theft. What I find is this:

§ 13A-8-5. Theft of property in the third degree.

(a) The theft of property which does not exceed five hundred dollars ($500) in value and which is not taken from the person of another constitutes theft of property in the third degree.

§ 13A-8-4. Theft of property in the second degree.

(a) The theft of property which exceeds two hundred fifty dollars ($250) in value but does not exceed one thousand dollars ($1,000) in value, and which is not taken from the person of another, constitutes theft of property in the second degree.

§ 13A-8-3. Theft of property in the first degree.

(a) The theft of property which exceeds two thousand five hundred dollars ($2,500) in value, or property of any value taken from the person of another, constitutes theft of property in the first degree.

In short, the amount my client allegedly stole is not covered by the theft statutes. Third degree is anything up to $500.00. Second degree is any amount “which exceeds two hundred fifty dollars ($250) in value but does not exceed one thousand dollars ($1,000).” First degree is anything “which exceeds two thousand five hundred dollars ($2,500).” $1,200.00 does exceed $1,000.00 but does not exceed $2,500.00. Thus, it is not covered by these three statutes.

So, all you strict constructionists, suppose my client is charged with theft, and the state proves that the client knowingly obtained or exerted unauthorized control over the property of another, with intent to deprive the owner of his or her property, thus satsifying the definition of theft (Ala. Code 13A-8-2(1)). But the state also proves the value of the theft was $1,200.00.

You are the judge, I ask you to dismiss the case because stealing that amount of money is not prohibited by statute; it is neither first, nor second, not third degree theft. What do you do?

I Just Finished Watching The Office

April 27, 2006

And I think my sides are going to hurt tomorrow from laughing so hard. Dwight, who we discover is a volunteer deputy with the Lackawana County Sheriff’s department, finds half a joint in the company parking lot. He then dons his uniform and begins systematically interrogating his co-workers. He is excited because he has the opportunity to “fulfill every officer’s dream: Solve an actual crime.”

Unfortunately he has little luck. He has some leads. Oscar, for instance, has family in South America. So, reasons Dwight, he must be a mule. But no, Oscar has never “pooped a baloon.” Dwight then asks Ryan for the keys to Ryan’s car. Ryan says no. Dwight says they can do it the hard way, which is Dwight going to the police station and telling the cops with the cops then getting a warrant, returning, and demanding the keys. Ryan says, “O.K. lets do it that way.” Dwight growls and moves on to the next target. Lesson to be learned? ALWAYS make them go get the warrant!

Questioning of the other employees is similarly fruitless. Dwight then invokes the company’s drug policy – mandatory tests for everyone when drugs are found on the premises.

That gets Michael worried. He recently attended an Alicia Keys concert, and sat next to a girl with a lip ring. According to Michael, “they were passing a cigarette around. At least I thought it was a cigarette.” So the rest of the episode is him trying to avoid the test. I won’t spoil it, but it involves lectures on the danger of “smoking drugs” and coffee cups full of urine.

This is right up there with the Simpsons where Dr. Hibbard prescribes Homer medicinal marijuana.

Homer: “Otto spelled backwards is Otto.”

Otto: “Yeah, and Shemp spelled backwards is hemp.”

Homer “You’re freakin’ me out man.”

I Agree With War Liberal

April 27, 2006

Who bemoans the involvement of Fox Sports with the BCS. Some folks hate Fox News; I hate Fox Sports. They are real high on my list of the worst things to ever happen to televised sports. So much do I wish they had never been born, that if you told me we could go back in time and, ab initio, get rid of them, but that we would also have to eliminate Fox’s one positive contribution to society – The Simpsons – I would think long and hard about it.

I have plenty of reasons for my animosity including all the stupid graphics that leave about ten percent of the screen for the game. The primary cause, however, is that apparently the job description for color commentator is something like, ‘Wanted, loud, ignorant, ex-athlete to sit next to a professional broadcaster and act like a buffoon during games.’ This is every Fox telecast:

Play by Play Guy: Smith takes the handoff, heads for the outside, he turns the corner and is finally run out of bounds after a fifteen yard gain.

Color Guy: Boy, look at him turn on the jets as he goes around the tight end there. You can’t teach stuff like that. Man is he fast. And the line is really playing strong, they are just blowing the defense off the ball. The defenders are playing without any passion right now. They are just going through the motions.

Play by Play: Now Smith goes up the middle for seven yards.

Color: He is really running down hill now, those big ‘ol defensive linemen are just worn out. They can’t keep up with him. He’s past them before they even realize it. You can really feel the momentum swinging. And he is strong enough to plow over them if they do get in his way. Smith is putting his team on his back and saying let me carry you to the win.

Play by Play: Here is the snap, and oh, Jones breaks through and stops Smith for no gain.

Color: Wow! He really hit him hard! What a play! Look at that, he just lowers his shoulders and really hits Smith. Smith will feel that tomorrow. He can’t run inside with those big boys and expect to survive for long. The defense is too big and strong.

Play by Play: Now Johnson is in the shotgun, here’s the snap. He looks deep, pulls back, now the pocket is collapsing. Here come Jones, and Johnson is sacked.

Color: Oh man, they were just fired up on defense on that play. They really wanted the stop. You can feel the momentum shifting right now. You can just feel the energy, the emotion, powering that defense. They are going to carry this team to victory.

They are not all that bad. Troy Aikmen is pretty good. But most of them do not tell me one thing about the game that I do not already know. And if I had a dollar for every time I heard words like ‘momentum’ or ‘passion’ in a Fox telecast, I could buy the rights to the BCS.

Tax Evaders And Scofflaws

April 27, 2006

The tax man wanted to take Gary Jones’ home from him. Gary owned the home for over thirty years and had recently paid off his mortgage. Unfortunately, Gary missed a few tax payments after he paid the mortgage. The mortgage company had always made them, and Gary just forgot about it.

So here comes the man, determined to seize the entire estate to satisfy a few years of missed taxes. The state begins the process by mailing notice of the condemnation to Gary’s address at the house. Problem was, he had divorced, and his wife lived at the home. She did not sign for the certified notice, and it was returned to the state. Gary never found out about the sale, and the state knew he never found out about it.

Nevertheless, they sold it for about one quarter of its total value. Gary discovers this only when the new owner shows up to kick his ex-wife out of the house. Foul! Cries Gary. How can you take my property without even telling me?

The state courts say the state can do it because they made a good faith attempt to find you. But they knew they did not find me, pleads the poor ex-homeowner. Tough, you lose.

So he takes his case to Scotus. Surely those property rights loving big government hating conservatives will help him. It looks doubtful. Conservative heroes Scalia and Thomas say his argument would make it “burdensome, impractical” for the state to take people’s homes. They say he has failed “to be a prudent ward of his interests.” They call him and his kind “tax evaders and scofflaws.” They want to affirm the state’s actions.

But just when he had given up hope, to the rescue swoop the god-hating, government empowering liberals, led by none other than Chief Justice Roberts. They say the state acted unreasonably. The state knew that Gary had no idea his property was about to be taken. In light of that knowledge, they should have made another attempt to notify Gary, so that Gary could have redeemed his home. Yesterday, they closed the case of Jones v. Flowers with these words:

There is no reason to suppose that the State will ever be less than fully zealous in its efforts to secure the tax revenue it needs. The same cannot be said for the State’s efforts to ensure that its citizens receive proper notice before the State takes action against them. In this case, the State is exerting extraordinary power against a property owner—taking and selling a house he owns. It is not too much to insist that the State do a bit more to attempt to let him know about it when the notice letter addressed to him is returned unclaimed.

Congratulations Gary, tax evaders and scofflaws like you are what the constitution is all about. You might even say the constitution was written by tax evaders and scofflaws like you.

The Clone Wars

April 27, 2006

Two updates today.

First, Roy has yet another conspiracy for us. This time he is accusing Riley of bribing two businessmen.

Moore referred to Riley’s decision in 2005 to invest $50 million from the state in Huntsville’s Hudson-Alpha Institute for Biotechnology. The creators of the institute, James R. Hudson, founder of Research Genetics, and Lonnie McMillian, co-founder of Adtran Corp., have pledged $80 million in private investment for a biotech research initiative.

Early this year, Riley reported a $300,000 contribution from Alabamians for Biotechnology, a political action committee formed by the businessmen.

“That was quid pro quo,” Moore said, defining the term for the audience as “something for something.”

Maybe it was, but who has time to investigate it? We are already busy with Dubya’s secret efforts to support Riley, the anti-christian federal judiciary, the corrupt pollsters, and the mad cows.

Second, Mini-Moore is no longer facing an ethics complaint. He was charged with violating the canons of judicial ethics by writing a news editorial in which he insulted his fellow justices and declared himself above the law. He certainly acted unethically, as I explained here. However, the commission made the right decision in dismissing the complaint. The First Amendment gives Mini-Moore the right to be a jerk, just like it gives you and I have the right to be jerks. You could make an argument that when he wrote the editorial, he was speaking for the court, and so has much less First Amendment protection. However, I think the substance of the editorial, and the fact that he did not participate in the case he criticized defeats that claim. But that his speech is protected does not mean it was anything other than ridiculous.

I think this hurts his campaign more than helps it. His entire message is “Help me fight the evil-doers.” This is one less enemy to battle; one less opportunity to play the valiant cultural warrior.

Wisdom From John Adams

April 26, 2006

“In my many years I have come to a conclusion that one useless man is a shame, two is a law firm, and three or more is a congress.”

That, while true enough, has little to do with anything discussed here recently, but it was google’s quote of the day and I thought it was funny.

Promoted From The Comments

April 26, 2006

Is a response to this post by someone named Commontater. I have two reasons for the promotion. First, he spent some time on it, and I want to reward the effort. Second, responding is much easier with the whole thing in view. Here is his entire comment. My responses are in bold:

“First of all your ignorance shows too easily when you try to equate Islam with Christianity. You are making a cheap attempt to slander and demean the existence of Christians, especially the Christian foundation of this country. You say “By way of comparison, Afghanistan’s constitution says “no law can be contrary to the beliefs and provisions of Islam.” Afghanistan, you know, is the place where they execute converts to Christianity.“

I ask you to look around, do you see Christians executing converts to Islam in this country? Do you see Christians executing atheist? No you don’t, Christians to a very large degree are a very compassionate people helping the unfortunate and downtrodden. It is Christian doctrine to turn the other cheek.

No, I never slandered Christians. The point of the post was that ARA’s principle that God’s Law, as recorded in the Holy Scriptures, is supreme in our land is the equivalent of the Afghan law that makes Islam the rule of the land. Both principles give the state the power to punish people for violating religious precepts. Islamists in Afghanistan use that power. I do not think Christians would also do so, but the point of the post was that I don’t want to leave it up to them. I trust the law, not men.

The sympathetic cause that you see as a danger is only a desire that the nation might return to some morals and common decency in our culture. If that scares you then you scare me. Actually, I have no problem with ‘morals and decency.’ What scares me is that this is often code for one person imposing their scruples on everyone else. Your outlook on life is what got us into this moral breakdown that the country is suffering from now. Really? I caused the War in Iraq? The corruption of the Republican Party? The president’s repeated lies and lawbreaking? Air and water pollution? Global warming? Poverty? Or did you have some other ‘moral breakdown in mind? Only people with their eyes closed cannot see the nearly complete breakdown of our nation. My eyes are open, but I think we see different breakdowns. This breakdown is caused by the behaviors so often championed by people who love to live their lives with no moral guidelines. Certainly. For example, Dubya’s firm belief in his own infalibility and total disregard of traditional just war theories caused the breakdown in Iraq. There is nothing wrong with having Moore-ality. No, there is nothing wrong with believing the first commandment. But there is something wrong with using your elected office to persuade other people so to believe. I will support him and any candidate who are true statesmen, no matter what ticket they run on. You are not going to support many candidates. He is one of the very few that has a conviction of principals instead of running after the money like most politicians do these days. You have noticed, I’m sure, that according to the latest reports he has spent big bucks trying to raise money. The problem is that no-one is giving it to him.

The United States was given birth by a people who fled the persecutions of tyranny, both religious and political. Amen. And who wanted to make some money. They designed a government that gave people religious freedom and yet it requires an internal moral character to make it work. I agree. When our government was created, the majority of the people lived their lives in good moral character as taught from the Christian bible. That’s why they owned all those slaves, huh? And that ‘thou shall not steal’ stuff did not apply to property owned by Indians, did it? Our open free society flourished and it worked. When a majority of the people no longer have an internal love for and the will to commit themselves to moral goodness the system will fail and we are seeing that now. Really? Where? How? Examples, please? The US system will not work while its people have no love for morality. Why not? And what do you mean by morality? We are drifting every day into an ever increasing immorality all the while claiming our civil rights and freedom to do so. Again, examples please. If you cannot see the causal relationship of immorality to our destruction, then you really are stupid. Or you have done nothing to help me to see it. The end will be a very hard crash indeed and I for one do not wish that upon our posterity. The right to live immoral lives is an empty claim for personal liberty because a society will not last long under such conditions. Liberty is something that requires respect and today it is twisted into every kind of perversion. So what is liberty then? The freedom to live in a way that does not offend you? Wow, how exciting. The last virtue of a degenerate society is tolerance. No, tolerance is the first virtue of a free society. We are all different, and we are not going to live together very succesfully if some of us insist that everyone else think and act in the same manner. That does not mean all ideas are equal. It just means everyone has a right to be wrong.

Our nation was founded as a republic based on Christian morals and that is what made it strong. Now it has gradually shifted towards a democracy. No argument on the polity, but you have heard too many sermons if you think this nation was founded on christian principles. The people are voting for their rights to have every conceivable sinful lifestyle. I thought it was the activist judges at fault here? they are daily contributing to the destruction of our nation. Now we a reaping the fruits of a degenerate society. Granting the existence of the problem, what do we do to solve it? Do we establish a monarchy? Enforce levitical law? What do you want to do? The following wise observations hold true for a people who love their sin just as much as it does with the economies of a democracy. Feel free to substitute immorality for largess, selfishness and dependency. How about substituting lobbyists? Haliburton? HomeLand Security? Karl Rove? Richard Land? James Dobson? All are destructive. So are my suggestions.

‘A democracy cannot exist as a permanent form of
government. It can only exist until the voters discover
that they can vote themselves largess from the public
treasury. From that time on the majority always votes
for the candidates promising the most benefits from the
public treasury, with the results that a democracy
always collapses over loose fiscal policy, always followed
by a dictatorship.’

‘The average age of the world’s great civilizations
has been 200 years. These nations have
progressed through this sequence:
from bondage to spiritual faith
from spiritual faith to great courage
from courage to liberty
from liberty to abundance
from abundance to selfishness
from selfishness to complacency
from complacency to apathy
from apathy to dependency
from dependency back to bondage.’”
Sounds great, but . . . . This is descriptive, that does not by itself mean it is also prescriptive. That yesterday I progressed from home to work to the Summit Club to work to home to the Mellow Mushroom (hmmm, pizza, hmmm, beer) to home does not mean I will follow the same path today. Further, where are the citations? How do I know this is even an accurate description?

So there it is. Keep it coming, this is the best part about blogging.

An Update

April 26, 2006

To the previous post.

First, I said therein that Justice Scalia was an undignified jurist. I then found this article (via How Appealing), in which the author makes the same point, provides several examples, and concludes:

The irreconcilable right wing cares little for the dignity of the court. Conservative bloggers were openly contemptuous whenever they felt betrayed by the Rehnquist Court, and some seem poised to attack the newly arrived justices, Roberts and Samuel A. Alito Jr., at any sign of inconstancy. That’s politics perhaps. Scalia, however, is no politician, but a robe-wearing justice. The court — and the public it serves — deserve better.

Second, for an example of how webcasts of the oral arguments would look, check out New Jersey’s Supreme Court.

If you want to watch one in particular, I recommend this one, in which the question was whether the state’s constitution prohibits the state from denying marriage to gay couples. Watch it, try to block out all your ideas on the subject, listen to the arguments, and then ask yourself if either of those arguments is so obviously right that the only reason the other side could win is because the justices are god hating liberals, or gay bashing conservatives, whichever the case may be.


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