Archive for September 2006

Thinking Happy Thoughts

September 29, 2006

The last few posts were too depressing, so this one offers two distractions.

First, sure Congress just flushed the Constitution down the toilet, but what are you happy about today? It’s Friday. The weather is perfect. Or maybe you are happy to see the constitution go away.

Me? I ran ten miles this morning – including two monster hills (Arlington Ave. and 52d St. South, the one by Baptist Montclair) – and felt great doing it. I’m giving 2-1 odds that I’ll be a parent within the next two weeks. All my favorite t.v. shows are back in swing: The Simpsons, The Office and My Name is Earl. We’re going out for Mexican tonight. Tomorrow morning I’m going to ride up to Turkey Creek again.

Second, this post is the beginning of my new feature. I’ll post a picture from the B’ham area, you e-mail me and tell me what it is. The first person to answer correctly wins. What do you get? Warm and fuzzy feelings plus, if you so choose, your name in the post when I reveal the answer.

So here it is. This is very easy – anyone who has ever been on this road will immediately get it – but it’s the first one. I’ll make them more obscure as the contest progresses.

Remember to e-mail me the answer: 


We Are Endowed By The State With Certain Privileges

September 29, 2006

Dan has a great picture on his blog today.


It came, I think, from this site. The creator explains it:

As outrageous as the Christian Right’s overall agenda is, their specific arguments and beliefs can be worse. I have written many articles exploring the arguments and beliefs advocated the Christian Right in order to reveal just how awful, and awfully absurd, they can be. Mere words, though, cannot always convey the true absurdity of a position. Even the most carefully reasoned argument will not carry the emotional impact of the original ideas being dissected.

Visual imagery, though, can often communicate ideas more quickly than words and convey emotions more immediately than any argument. For that reason I have created propaganda posters which promote some of the beliefs of the Christian Right. The intention is satirical, not sympathetic, but even so I believe that both the images and the words accurately reflect what some on the Christian Right belief and advocate. The original posters were produced as government propaganda, mostly during the first and second world wars.

Before you dimiss the poster as a mean spirited attack on a straw man, read this article from a prominent member of the so called religious right, a member who would probably be described as one of its more moderate thinkers. Here’s the intro:

During World War II the United States government’s Office of War Information spearheaded a national campaign whose most well-known slogan was “Loose Lips Sink Ships.” The purpose of the campaign was to encourage citizens to not talk to each other about aspects of the war effort that could inadvertently divulge military plans, troop movements, or other secrets that could result in the loss of life and/or defeat in combat. . . .

The Bush administration should institute a similar campaign that instructs citizens of both the real dangers of proliferating classified information and that the meaning of the First Amendment is not a license to publish anything. If done correctly, this would have the effect of isolating, and bringing public condemnation upon, mainstream media, such as the New York Times and the Los Angeles Times, that insist on publishing classified information that may result in placing American citizens and military personnel in the crosshairs of terrorists.

In order to pull this off, it would require a multi-media campaign that would not only include posters and radio (as in the 1940s), but also television, the Internet, and podcasts. They would have to be done well, with attractive and winsome citizens and narrators conveying a strong and serious message that does not come across as syrupy, heavy-handed, or inconsistent with the protection of civil liberties. Consider this commercial:

Everyone laughs when their grandparents talk about how gas used to cost a quarter, and a nickel got you a big ‘ol candy bar at the corner store. I’m about to have two kids, and I really don’t think it’s funny that one day I’ll be telling them that newspapers used to be able to publish anything they wanted; that in the old days we could leave our neighborhood without first showing the guards our national identification papers; that phone calls were private; and most importantly of all, that when America was free, if someone got arrested, they would be treated humanely and would not lose their liberty unless the state could convince a jury of normal people that the person committed a pre-defined crime.  

I don’t want to tell those stories. But every day, and especially after yesterday, it looks more and more like the tragic conglomeration of power hungry fascists and weak willed cowards in Washington has decided that our self evident, God given, inalienable rights are nothing but fancy dressing, things to be cast aside whenever they become inconvenient.

And that is what they are: merely inconvenient. Fighting the terrorists does not require us to relinquish who we are. Torture is not necessary. Warrantless wiretaps are not necessary. A King is not necessary. We do not have to become barbarians in order to fight the barbarians.

But this is the easy route.  The no real though involved route. Worst of all, the politically expedient route. Our “leaders” think most of us have already bowed before the terrorists. Do they think any of us would say”Give me liberty or give me death?” Yeah, right. They see us as groveling cowards: “Here’s my liberty, just make me feel safe.”   

Not me. And there is nothing special about me. If I want to find a better way to fight, then I assume most other folks do as well. We’re not ready to sell our souls. We want to fight the good fight. We want to hold our heads high. We want to win without muddying our hands with the filth of the enemy. We want our authority to be not just guns, but justice. We want to win as America.  

And we do not have to make the choice today, but if we ever had to decide between being right and being victorious, I’ll go down singing the Star Spangled Banner.  

So who is going to stand up and speak for the people like me? You want my vote? Then be an American. 

Two Hundred And Thirty Years Ain’t So Bad

September 28, 2006

The party had to end some time. I am little upset, though, that all of Alabama’s Congressmen joined in ending the American experiment:

Alabama Sens. Richard Shelby and Jeff Sessions voted today against giving terrorism suspects the right to legally challenge their detention, part of larger bill that sets rules for how detainees are treated and prosecuted.

Shelby and Sessions, both Republicans, were among the 51 senators to turn down the amendment from Sen. Arlen Specter, R-Pa., to grant suspects habeas corpus rights. The amendment was defeated 48-51.

The Senate is expected to approve the detainee legislation later today. The measure passed the House Wednesday, 253-168, with all seven members of Alabama’s delegation in support.

“I believe that the bill passed by the House will reinforce our opposition to torture as an interrogation tactic and that it will do so in a clearer, more consistent manner than current law provides,” said Rep. Artur Davis, D-Birmingham. “Although it is not perfect, the military tribunal bill preserves our commitment to establish legal traditions while giving our interrogators the authority they need to seek the truth. We simply do not live in a world where we can extend the full safeguards owed to Americans to enemy combatants who would crush every institution we have.”

Condensed Artur Davis: “I’m scared of the terrorists, and if I did take a stand for liberty, human worth, and the rule of law, then the Big Bad Republicans would call me a puss. So I’ll let the president throw whomever he wants in prison for however long he sees fit and subject to any treatments he deems appropriate.”

Whatever happened to death before dishonor?  

I’ll try to provide some actual legal commentary on this tomorrow. For now I am too depressed.

Update: No legal analysis yet. Rather, more Democrat-bashing. Last weekend I watched Beavis and Butthead Do America, so I’ve had those gentlemen on my mind. The Democrats’s “tactics” over the last week – oh crap, the last half decade – remind me of B & B’s attempts to join Todd’s gang. They think if they do what he wants, they’ll get into the gang, but all they ever get is beat down.

You Be The Judge

September 28, 2006

In the days of the common law, spouses could not testify either for or against each other, even if they wanted to do so. The only exception was in situations where one spouse was the victim of the other’s violence. Then the state could force the victim spouse to testify against the defendant spouse.

Then, in 1915, Alabama passed the following statute (now codified at 12-21-227):

The husband and wife may testify either for or against each other in criminal cases, but shall not be compelled so to do.

The question for you is whether or not the statute eliminated the common law exception. Does this statute mean that in a domestic violence case the witness/victim spouse can refuse to testify against the defendant spouse?  

There are two rules of statutory construction that may help.


Statutes in derogation or modification of the common law are strictly construed. . . . Such statutes are presumed not to alter the common law in any way not expressly declared.

Based on this rule, you could argue that the common law exception survives, because the statute does not expressly eliminate it.

But then there is the second rule:

Words used in [a] statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is clear and unambiguous, then there is no room for judicial construction and the clearly expressed intent of the Legislature must be given effect.

This statute says the husband and wife “shall not” be forced to testify against each other. That is an unambiguous command:

The word ‘shall’ is clear and unambiguous and is imperative and mandatory. . . . The word “shall” has been defined as follows: As used in statutes, contracts, or the like, this word is generally imperative or mandatory. In common or ordinary parlance, and in its ordinary signification, the term “shall” is a word of command, and one which has always or which must be given a compulsory meaning; as denoting obligation. The word in ordinary usage means “must” and is inconsistent with a concept of discretion.

So what say you? Does this statute leave room for the common law exception? Remember, whether the exception is a good idea or bad idea is irrelevant. All that matters is whether or not the statute allows it.

I Really Should Be Working,

September 27, 2006

and most of you have probably seen this already, and it’s mean, but . . . .

Out-of-staters and non-football fans, the background is here

Upcoming Events On The Alablawg

September 27, 2006

There won’t be many today. I was in court yesterday, and will be again tomorrow. I’ve got an appeal to finish. This morning, in one of the joys of being a young attorney, I got to work to find that an entire file – which I’ve never read – along with the defendant’s motion for summary judgment had been deposited on my desk by a more senior attorney. I’m told I now have the case because it is in critical condition and needs my expert assistance. I know I now have the case because it is so far gone I can’t possibly screw it up. We also just got involved with the continuing debate between the Mayor and the Council over the raises for the police and fire departments. Of course, I need to find some answers RIGHT NOW! 

But don’t worry I’ll keep blogging. Maybe even from home. And when I do, I will have a cool new feature. We got a new digital camera, and, stealing this guy’s idea, I’m going to take pictures of places in the B’ham area, post them, and have a contest to see who can be the first to identify the picture. 

I’m also going to update my blog roll. The first new addition is the blog from whom I stole my picture idea: Red Bank Green. Probably of interest to a very small portion of my readers, but of great interest to them, this is a super local blog about Red Bank, New Jersey and the surrounding area. That is one of my favorite places in the world.

If You Can’t Bribe ‘Em, Blame ‘Em

September 26, 2006

I guess that’s Scrushelman’s new strategy:

Attorneys for former HealthSouth Corp. chief executive Richard Scrushy and former Gov. Don Siegelman want a new trial, saying that jurors who convicted them discussed the case through e-mails during the trial and another reported feeling pressured to vote guilty.

The Government predictably responds:

Prosecutor Steve Feaga said Monday he had not reviewed the entire motion, but based on what he knew about it, he was not concerned.

“It sounds very much like desperate pleadings filed by desperate men with unlimited resources trying to avoid the consequences of their criminal activity,” Feaga said. “I’m confident that there was no error committed during the trial that would entitle them to a new trial or any other appellate relief.”

According to the story, the claims are three. First, one juror says he voted guilty due to the combined pressure of the other jurors, the judge’s instructions, and the general costs and hassles of jury duty. Second, at least two other jurors discussed the case between themselves but while outside of formal deliberations. Three, while the jury was taking a break from deliberations, yet another juror allegedly saw a news report about the trial.

If that’s all there is to the argument, I’m gonna guess it won’t work. The applicable rule is 606(b) of the Federal Rules of Evidence:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

That’s a lawyer’s way of saying that what happens in the jury room stays in the jury room. The purpose of the rule is to encourage full and frank debate among the jurors. We do not want the jurors worried about someone later using their statements against them. So no juror is allowed to testify – or submit an affidavit – about anything that happened during the deliberations.

That ought to sink the first claim. The juror wants to testify about what went on in the jury room and how that pressured him to vote guilty. That is exactly what the rule prohibits. The judge should not even consider this testimony.

The next two claims are different.

Arguably, the rule would not apply to the second claim, because when the two jurors talked to each other it was not “during the course of the jury’s deliberations.” It was in that general time period, but not when the jury was formally assembled. If this argument is correct, then they could testify to the substance of the conversations.

As for the third claim, the rule makes an exception for extraneous prejudicial information. For instance, suppose a bailiff told the jurors that Scrushelman would never go to jail if they found him guilty, and if he did, he had good attorneys to get him a new trial on appeal. That is extraneous information: information not obtained through the trial. And it is prejudicial as well: it would encourage a guilty verdict. So the jurors could testify about this and its affect on them. The newspaper – as something considered by a juror but not presented during the trial – would fit the exception.

However, for both the second and third claims, Scrushelman still has to show prejudice. I don’t see it for the extraneous discussion. It looks like all the jurors did is what jurors are supposed to do: Deliberate. There is nothing in the story about any dirty dealings or agreements to pressure anyone else. As for the paper, it depends on what the story is. If it suggested Scrushelman was guilty, or the evidence was powerful, or that the jurors would be idiots not to convict, then he may have a fighting chance. But even then, if only one juror saw it, dollars to donuts says the verdict stands.