Legal Affairs

In Defense of Innocence

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“Sed nec de suspicionibus debere aliquem damnari diuus Traianus Adsidio Seuero rescripsit: satius enim esse impunitum relinqui facinus nocentis quam innocentem damnari.” – a person ought not to be condemned on suspicion; for it was preferable that the crime of a guilty man should go unpunished than an innocent man be condemned. Trajan writing to Adsidius Severus

“Do not deny justice to your poor people in their lawsuits. Have nothing to do with a false charge and do not put an innocent or honest person to death, for I will not acquit the guilty.” – Exodus 23:6-7

From time immemorial, just men have seen the slippery slope necessarily emerging should society develop the habit of convicting the innocent. Conviction of the innocent reduces us all to the level of the guilty, unable to stand above in judgment because the judgment becomes capricious. But this need to avoid convicting innocent men stands in opposition to the Old Testament attitudes of justice and retribution. Our prosecutorial system is designed to be as aggressive as possible and in fact, should a prosecutor allow a guilty man to go free, his stay in office would become terminal. So we have these two competing desires in our judicial system today and as the world has become more black and white, the very people charged with protecting those innocent of crime work far harder to improve their conviction rate so that they may stay in office.

Certainly, we want our prosecutors to aggressively pursue charges against alleged criminals but at what point do we wish they could turn off the desire for conviction and realize that particular cases require a more deft touch? As the science behind our forensic analysis gets more and more advanced, shouldn’t we err on the side of allowing a guilty man go free if the evidence casts a large shadow of doubt on the guilt of a convicted man? Of course, when the crime involves a child, it’s even more difficult step back from the fray for a more balanced look.

Ernie Lopez spent nine years in prison until this past January when his conviction was overturned based on what appears to be abysmal defense representation at trial. At question is whether the child that died in his care in 2000 was the victim of a crime or a statistic in a growing understanding of how young children die from blood clotting diseases. The Texas Court of Criminal Appeals, hardly a bastion of liberal hearted compassion, feels the latter may be true given the evidence dug up by NPR, ProPublica and PBS Frontline. The child Lopez was convicted of assaulting had a blood clotting disorder that caused bruising that might mimic physical and sexual abuse. Lopez’s original defense called no medical witnesses, a lapse of epic proportions in a case where a man was convicted and sentenced to 60 years in prison. Yet, in our judicial system, where prosecutors are lionized and move up the political spectrum and defense attorneys are maligned as protectors of the evil, how often must this happen? Defense attorneys are notoriously underfunded, especially court appointed ones and certainly we have to believe the talent pool for court appointed attorneys must be quite shallow. It must take a saint to voluntarily defend the dregs of society in need of court appointed attorneys. We have become a society that turns its back on the conviction of the innocent in many ways because it is difficult to consider and even more difficult to fix. No one wants to allocate resources to the defense of the indefensible. And so we have episodes like Lopez and dozens of others, innocent men and women convicted of crimes they didn’t commit.

Our desire for retribution is strong, based on evolutionary and cultural traits that abhor the idea of unpunished guilt. Without justice, we have anarchy and no civilization can stand for that. It is important that the guilty are punished to protect our culture. Yet, if we are to consider ourselves something above the animals, surely we must do everything in our power to prevent even one innocent conviction. It should be the moral charge of prosecutors to tread carefully instead of rampaging in to battle attempting to win at all costs. But of course, as in all things these days, politics comes into play in a myriad of ways and in Texas, you won’t be a prosecutor for long if you seem easy on crime. We as a society should demand equal treatment of both the accused and the victim until guilt is decided. Even then, we should always be prepared for the chance we made a mistake as evidence or science comes to light. The rectification of those mistakes should be clear and immediate, casting no doubt on our desire to protect the innocent and learn from our mistakes. Unfortunately, as in the case of Lopez, it’s far easier to see things as black and white, leaving a man to sit in a cell for nine years for a crime he likely didn’t commit only to promise to prosecute him again once he is released.

The Right To Waste My Own Money

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In one of my favorite Two and A Half Men episodes (of which there are many), Charlie takes Jake to the horse racing track instead of helping him with his book report. Jake has $14 to spend and he needs some advice from Uncle Charlie. Charlie recommends putting his money where the other smart money is, on the favorite at 2 to 1. When Charlie explains that Jake will win $28 when the horse comes through, Jake is understandably unimpressed with this total and wants to wager on the 80 to 1 longshot. Charlie, assuming this will teach him a lesson, allows him to do so. And of course the horse wins netting lucky Jake $1120. As the episode continues, Charlie and Allen argue how Jake should spend his money, forgetting to include Jake in the conversation. In the end, not unexpectedly, Jake wastes his money on a dirt bike that immediately falls apart.

The lesson here is two-fold. First, Uncle Charlie thought he knew best how to spend Jake’s money and was in fact completely wrong. Two, Jake blew his money on a worthless piece of crap. While this is painful to Jake, it’s painless to almost everyone else. Personal choice is often like this. I may make all the terrible decisions I like and the person most hurt in the situation will almost always be me (leaving aside obvious choices like shooting people which is already illegal and not germane to the conversation).

If Steven Chu, Nobel prize winning physicist who currently runs the Department of Energy, had his way, he would play the part of Allen, Jake’s paternalistic and know it all father. In doing so, he would make sure you weren’t allowed to waste your own money, feeling that the government of the United States is much more likely to know what’s best for you and your rapidly decreasing in value dollar bills. To sum up the issue, in 2007 Congress passed a law outlawing incandescent bulbs because they aren’t as energy efficient as the newer compact fluorescent bulbs. Not surprisingly, lots of people found that to be a huge overreach, especially given how mediocre CFLs seem to be. Congress is now considering repealing that 2007 law. Steven Chu is unsurprisingly aghast at the people having a choice on how they spend their money.

We are taking away a choice that continues to let people waste their own money.

While I’m not surprised to hear such paternalistic thoughts coming out of this administration, it is nonetheless frightening to think that the officials in power can so brazenly advocate for less choice for us proletarians. Lots of other people have commented on the second part of that awful statement, the ability to waste our own money. I think it’s equally enlightening to examine the first part of it. “We are taking away a choice” is a phrase that should strike fear in almost every American. The taking of choice should be done only with the greatest of consideration. And yet, our political elite wants nothing more than to limit your choices, to be allowed to dictate your actions, to make you much less free all in the name of whatever their slogan of the week is, in this case energy efficiency.

This country was founded largely on choice. It is going the way of the dodo as more and more Americans are less able to make choices for themselves. The ability to make choices drives the economy and spirit of America. Yet, on something so trivial as what lightbulb to buy, this Administration would prefer you to have no choice, instead being told exactly what you can and cannot buy. And it’s not limited to this Administration. The law was passed in 2007. We have been watching our freedoms and choices erode for the past 20 years.

The brazenness with which they are starting to grab power that once rested with the individual is both astounding and terrifying. Perhaps if Mr. Chu would like to really have an effect, he should outlaw 30 year mortgages, surely a much larger and negative waste of the people’s money. Of course, the people (and the banks!) wouldn’t stand for that because no one can afford 15 year mortgage these days. Wasting money is a matter of personal choice. Or at least it should be. Our political elite would prefer you have much less choice in all arenas of your life so that they may tell you the best way to live.

Eventually, I believe this is going to backfire in a huge way. The people will not continue to watch the government grow larger, squandering larger and larger sums of money while being told more and more what they cannot do. At a micro scale, that’s exactly what this issue is about. You cannot tell a man who has been out of work for 99 weeks that he isn’t allowed to buy a significantly cheaper bulb just because over the long run it will cost him more money. People are not concerned with the long run. They are concerned with getting through the day to day and any evidence that the government is preventing that through the restriction of choice will eventually blow up in our faces.

Choice is fundamental to who we are as a people. We cannot allow our choices to continue to disappear into the oblivion of Washington. Change will happen, it’s just hard to say right now what that change will look like.

A Tale of Two Tragedies

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Anyone who doesn’t live under a rock has been bombarded by a media assault over the last few days regarding the acquittal of Casey Anthony. For weeks, news about the trial has been pervasive on sites like CNN where apparently their market research shows that the people who go to CNN.com just can’t get enough of a lurid trial about a woman who may or may not have killed her daughter. Yesterday, after deliberating less than 11 hours, the jury found Anthony not guilty on the charge of first degree murder though they did find her guilty of 4 counts of providing false information to law enforcement officials. When the verdict was read, the reactions were immediate throughout the media. By most counts, almost everyone assumed that Anthony was guilty and would be found as such. The not guilty verdict caused a firestorm from people wondering how the jury could have come to that conclusion. Comparisons to the OJ trial showed up several times in my Twitter feed and in general, people seemed to be actively disgusted at this so-called failure of the justice system.

Last Friday, in a courtroom in Monticello, Mississippi 600 some miles away from the Anthony trial, judge Prentiss Harrell was accepting a new plea bargain in the case of Cory Maye. In 2001, police made a wrong door raid on Mr. Maye’s home on the day after Christmas at just after midnight. Mr. Maye, sleeping at the time in the living room, his toddler daughter asleep in his bedroom, said that he did not know that the men breaking into his house were police officers. He fired back in self-defense killing one of the officers. He was tried and convicted of capital murder and sentenced to death. He proceeded to serve 10 years, 2 of them on death row. Unfortunately, many of the facts surrounding his case land on the side of Mr. Maye’s innocence. In November of 2009, the Mississippi State Court of Appeals found that he should be granted a new trial saying that the trial court was wrong to turn down his request to move the trial back to Jefferson Davis County where the alleged offense had occurred. Before a new trial happened, prosecutors and Maye’s defense team came to the plea bargain of him pleading guilty to a lesser charge. He was sentenced 10 years and released based on time served.

What do these two trials have in common? In both, it appeared that the evidence regarding the alleged offense and the actual verdict were at odds. In one case, the mother of a dead toddler is going free. In the other, a cop, a good cop by all accounts, is dead. But he was killed by a man who thought he was being attacked and that man served 10 years of his life, 2 on death row, for a crime that never should have happened if police had done their job correctly. These are both tragedies. But in at least one of them, the Maye case, justice was eventually served at least to the degree it could be. The evidence against Cory Maye was weak at best. If you read the Reason article linked above, you’ll see that the jury had to essentially suspend all belief in the facts at hand to find Cory Maye guilty of capital murder, a charge that requires the defendant to have known that the man he was shooting was a police officer. On top of that, if the raid was illegal, which much of the evidence supports, Maye had every right to defend himself under Mississippi law.

In the Cory Maye case, we have two definite tragedies, one that a cop is dead and two that Maye lost 10 years of his life for a crime he likely didn’t commit. In the Anthony case, we have one tragedy, that of the death of Caylee and a possible tragedy if her mother actually committed the crime for which she was acquitted. If she did, only she will have to live with that now. But if we are to believe in our justice system, it’s far better to have that tragedy go unknown and unpunished than it is for a man like Cory Maye to have been found guilty of capital murder. In Cory’s case, one tragedy has been corrected. It’s because of who we are, what we believe in and a justice system that supports both that we have to accept the possible unpunished tragedy in the Anthony case.

What Do Spending Habits Tell Us About Being A Supreme Court Justice?

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As most people know, President Obama recently tapped Sonia Sotomayer to be the next Supreme Court Justice. There’s been quite a bit of discussion regarding her legal theories, recent comments on white men and Latina women and her overall ability to do the job. I personally doubt that she is terribly dangerous even though she probably would vote for things I disapprove of (Roe v Wade and gun control). She doesn’t strike me as a lightning rod of progressive, Living Constitution types and so, overall, she’s not too scary to me and thus, not to interesting either.

However, I ran across something today that I do find interesting about her. Last week, she filed the required questionnaire which happens to include a fairly detailed description of her financial situation. She makes approximately $175K a year and while she has a substantial valuation on an apartment she owns in NY, she appears to have no substantial retirement savings at all. She also has almost $16K in credit card bills and $15K in dental bills outstanding.

Looking at her situation, it turns out that federal judges can retire at age 55 and still get a pension worth 85% of their working salary adjusted for inflation plus free medical care for the entire family. So I suppose that isn’t surprising that she hasn’t seen fit to save anything for retirement. $170K a year to be retired is nothing to sneeze at. Of course, that doesn’t explain the large amount of outstanding, short term debt but we’ll let that slide. However, federal pension notwithstanding, what does this tell us about Judge Sotomayor? Could it be useful in determining how she might rule on cases that come before her?

I think it clearly shows that she is a spender, not a saver. How might that affect how she rules? Well, right off the bat, we know she isn’t at all concerned with disasters or tragedies. Most financial planners say that you should have 6 months worth of expenses in an emergency savings fund. It’s difficult to tell what her expenses are but assuming she’s got an approximately $6000 monthly mortgage payment (based on the $381K mortgage plus a 4% property tax which may be high since I’m sure the NY income tax makes up for the property taxes I’m used to here in Texas) plus another $4000 in various expenses, she’s about $70K short in her cash fund. It’s not too great of a leap to believe that since she is uninterested in preparing for a disaster and instead relies on the the goodwill of the government, she might also be sympathetic to people who are equally uninterested in being prepared when a disaster occurs in their life.

Again, it’s important to note that federal judges aren’t likely to show up to work one day and find a pink slip. However, the fact that she doesn’t have much of an emergency fund at all tells us that she probably isn’t one to think about the future. The question has never crossed her mind of what she would do if the U.S. government ceased to exist. Or if Congress, if able, changed the pension plan for federal judges. Perhaps she has made a rational decision that because she has a guaranteed pension, she can spend all the money she wants. More likely thoug, she is by nature a spender. These people live paycheck to paycheck with little regard for any preparation for unforeseen events. This is troubling because at the very least, I would hope that she would rationally consider what her rulings on the Court might affect far down the line before making a decision.

On top of that, even if she has made that rational decision, it means that she is perfectly happy living on the government dole for the rest of her days. This also tells us something about her character. It tells us that she believes in the role of government to provide for people even if they are able to provide for themselves. I think it probably shows that she is likely to lean towards defendants even if their case is weak.

Overall, all of this is circumstantial and certainly nothing that couldn’t be determined using other more reliable methods like examining her judicial history. However, I would certainly prefer someone who was a great deal more concerned about being able to provide for herself even if the government stopped providing for her. It tells me that she is likely to decide for cases that reward spenders, thus instituting law that continues our reliance on the American consumer as the foundation for our economy, something that I think is unsustainable. She is also likely to decide for plaintiffs who may be injured through some fault of their own because she does not subscribe to any belief that an individual is responsible for his actions, both short and long term. In general, it makes me nervous regarding cases involving financial matters because hers are so obviously broken.

It’s About Damn Time

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All charges in the Duke (non)-rape case have been dropped.  This has obviously been the result of an overreaching DA, one that now stands to get disbarred because of his actions.  Three young men’s lives have been trashed in the media and beyond all on the account of an accuser with serious credibility issues and a constantly changing story.  Duke University acted in horribly bad faith in canceling the men’s lacrosse schedule last year and in the suspension of two of the men on the accusation alone.

I for one would never recommend Duke to anyone again.  I doubt that they can be held liable but if they can, I hope they get sued.  This is a case where litigation would be a useful tool to help right a wrong.