Scoplaw

Go, Read, Learn

PD awesomeness.

Even Though

this blog's author is not one of the Hard Drinking Librarians (tm) of which the Scoplaw was a founding member back in our days of yore, I think they make the cut.  Therefore, the link.  Which is both recommendation and referral. 

Sniff. Sniff. Is that. . .respect?

Hmm.  Could be.  I won a Rodney for "Best Blog by a Male PD" and was the runner up for "Best Writing."  That's pretty damn cool - people read the blog, and some seem to like it. 

And that's about it for news from So. FL. 

Oh.  *Almost* forgot (as in I've forgotten to swear about this in the past 20 minutes) - juries will be asking questions of witnesses.  While this sounds like not a bad idea at first cut, what's flying under the radar on this issue is about 200 years of the system "working" to some extent.  Part of the reason the system works is that the unequal parties in a criminal case (the State v. the defendant) are theoretically balanced by the rules of evidence and the neutrality of the jury.  To ask the jury to adopt an "inquisitive" mindset and question witnesses in a criminal case is an abrogation of their traditional role.  As far as I'm concerned, the jury is there to judge the state's case, not the defendant.

I'm not sure how this is going to play out in the real world.  Certainly, in some cases it will allow juries to address or even eliminate their most pressing concern - which is usually "a reasonable doubt" about something.  The witness, knowing this, is thus put in a position to have one single answer to a question carry undue weight with the jury - and the temptation to color one's testimony will certainly be the strongest in this kind of scenario.  Will the defense be allowed to educate the jury as to just how often witnesses lie?  Or why the rules of evidence close down certain avenues of inquiry to both the defense and the prosecution?

Granted, I'm sure it might even be *more just* to have the juries ask questions in some cases, but we can't measure the system without looking at it's most *unjust" results - and frankly, I'd be surprised if someone didn't get completely screwed under this new rule. 

And on Sunday, there was no rest at all. Sorta.

This is sort of a mixed post, dealing with blogging, odds and ends, and headwinds.  If bored, scroll down.

Blogging

Now that I’m in a new environment, people are starting to discover the blog. First off, as I’ve written elsewhere, the blog isn’t a dirty little secret. Please feel free to tell me you read it, even if you only know me from the hallway in work or the courthouse. If you want to discuss anything on the blog, I’d be happy to hear it.

As far as posting on the blog, and what I use it for, The Ground Rules for the blog are linked to on very top of the right sidebar.

Basically:

1. There are confidentiality issues.  Please do not use anyone else's real name without their express permission or, like my friend Seth Abramson for example, they also blog and comment under their real name.  If you violate this rule, I’ll be deleting your comment or at least editing out the name.
2. I’m not going to write salacious things about my clients (in fact, due to ground rule 1, I’ll probably write little or nothing about them specifically, although I may comment on “types” of situations we see, in an effort to let people know what this job is like, and how the legal system “is” for the indigent).  I will not salacious things about the office, or the judges I’m in front of, or the court personnel.  I'm unsure about the prosecutors.  (Just kidding.)  If *you* want to see those things in print, by all means blog about them, but don’t use my comment fields to do so.  If you do, I’ll be deleting your comment or, at least editing out the name.  I may banyour access to the blog as well.
3. Please feel free to raise any factual issues or counter-points that do not implicate rules 1 or 2.  Disagreement is cool.  I like it. 
4. Feel free to use any amount strong language on those issues you feel passionately about; however profane and/or substances diatribes directed at myself or other non-public figures will be  most likely deleted prior to my banning you from commenting.  Or I could just make fun of them before banning you.  I do that sometimes.
5. As you may have guessed from the above, the blog is a private publication.  I have (and will) restricted access to those who can’t play nice. 
6. Because "we write what we know," if you’re reading the blog there’s a chance you may see "yourself" (disguised via moniker, hopefully indiscoverable as yourself, distorted by point 7 below) on these pages.  If you're uncomfortable with your moniker, or if you want to be CATEGORICALLY UNBLOGABLE simply write me at scoplaw@gmail.com (or any other valid email address you may have for me) and LET ME KNOW.  I will not take offense, and I will delete any reference to you.  That brings me to the issue of truthfulness.
7. The easiest way to say this is: I lie on the blog.  It’s more in the realm of literature.  It is not UNMEDIATED FACTUAL OR BIOGRAPHIC REPORTING.  If reference to anything appears on the blog, IT MAY NOT BE TRUE.  Do not rely on anything you read here.
8. Deal with number 7.  This gets it own number.
9. To explain number 7, I’m a writer as well as a (some-J.D.-post-bar/pre-oath-limbo-something).  What I’d like to do with the blog is to create a record of my experiences and tell a few stories along the way.  Often those stories here, like all stories, are distorted for various reasons.  However, given the nature of blogging, I also deliberately distort things.  I may want to protect someone’s identity, I may want to skip extraneous details and get to the heart of something, I may combine several stories or scenarios to give readers a flavor for what some sort of “typical” experience is, so on, so forth.  Poets lie to tell the truth.  Which is why Plato gave us the boot from the Republic.
10. As kind of a PS, the blog is about 80% first draft posts, and I don't obsessively edit them.  Feel free to point out misspellings and improper punctuation and so forth, but don't expect me to hop to correct them.

If anyone is curious, I wrote about why I blog awhile ago.  http://scoplaw.blogs.com/scoplaw/2005/02/what_it_means_t.html

I think most of that still holds true.

Odds ‘n Ends, Space and Visitation

The James Bond Watch (former roommate, now snazzy lawyer) is hopefully coming down to Miami to do some clerkship interviewing. Irish Bars beware!

I’ll have to buy that air mattress tonight after all. And wouldn’t you know it, but there’s a Cuban bakery I really like next to the air mattress place. Guess it’s time for another coffee and pastry/donut.  Donuts - round power bars.

I may opt for the futon/couch though, instead of the air mattress. Hmm.

That’d be a big step for me. I’m used to moving often, sometimes with minimal help.  (Thank You! All who have helped, wanted to help, or will help the next time around!) As I’ve told some people here, I got so sick of moving my big stuff that I pared everything down to a couple of car loads – furniture, books, things-seldom-used were sold or given away.  And even now, I’m still a bit nervous when it comes to getting heavy/bulky stuff for my place.

But I know I’m not thinking rationally. Assuming I pass the FL Bar (knock wood), where would I ever move to in FL to practice law? Tallahassee? No, I’ll be staying right here in Greater Miami. And, on top of that, I could always sell my stuff again if for some reason I move out of state. Still – the non-big-acquisition-reflex keeps engaging. The thought of adding a piece of furniture like a futon makes my palms a bit sweaty.  But I need something for house-guests.

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Although JBW’s visit is more of a social/get-together thing, it’s very important for me to be able to have the space to accommodate other people if the need arises. When I was younger, I didn’t have a place for my friends to stay when they really needed it. I often wonder how things might have turned out differently if I could have simply let someone crash for a few weeks. I know there have been times in my life when I hugely benefited from someone telling me, “stay as often and for as long as you need to.” Sometimes just hearing it is enough – knowing you have a place to go. But it’s been awhile since I’ve really had a place entirely of my own (well, excepting El Gato Perfecto’s non-legal but basically co-tenantship).  In some ways it seems too little too late – most of my friends now have stable, sustainable lives and are not being buffeted about by the powers-that-be. Some were buffeted out of my life, and some out of their own. Regardless of how it might have affected ultimate outcomes, I wish I’d been able to offer them more than what I could.

And even if it’s unnecessary, still, it’s just cool to be able to say it without negotiation – “You can stay over. You can use my place. Stay as long as you need to.” I like that. Not that I hope anyone needs it, but I like that I can say it if they do. (And that’s the pure truth.)

**

I’ve been out to dinner/happy-hour a few times with the new crew. We had Haitian and Middle-Eastern. Both were excellent. The PDs office is awash with good info about affordable and impressive places to go and try. I have a feeling I’ll be eating very well here. (I also finally found a farmer’s market that was just built – I’m eager to see what they have.)

Headwinds

One of my cool new colleagues is training for an Iron Man, which I think is just damn impressive. I mean, I’m training myself to iron my pants correctly and find supermarkets (which I’m sure she *also* has to do.)

While I swim (sorta, my last attempt was weak) and run, I do my best swimming if I’m heading for the shore and away from something that’s sinking. Also, running tends to gain special interest for me if I’m being chased by dogs or something. Other than that I’m afraid I’m too indifferent to compete. However, I can chip in on 1/3^rd of her training activities via biking.

This morning, she introduced me to a cool group ride that heads out of SW, over the bridge to Key Biscayne, around a bit and then comes back. Because she’s training and wanted more miles, we did another leg around a golf course (then I took a cool-down breather while she did a second), before we headed back to the shop. My goal for the day was to stay with her – that seemed to work out OK, with the exception of the one break. The scenery was gorgeous and the riders were pretty funny (in a good way). There was one perfect moment when we were all riding slightly downgrade, in sunlight, when the lightest of rainshowers hit – it was more like a mist.

The FL riding experience is weird for me. It’s flat and there are a lot of steady winds that can drop you to a crawl in certain conditions. You’ll literally be cruising at 18, the winds will cause you to expend more energy as they drop you down to 15. That may not sound like a lot, but it seems like you’re riding through molasses.

I’m generally a lighter rider, so I get pushed around by the wind in a way the heavier riders don’t.  Well, the pushing of the wind against our surface areas is roughly the same but I don't have the extra muscle to turn the cranks and power through the wind.  Conversely, I’m (was – my recent sloth has manifested itself) good at hills, because I only have to power my lighter self up the hill.

There’s one “hill” in Miami – that’s the bridge span over to Key Biscayne itself. I tried to zip up it, made it to the crest with decent speed, but ended up sucking wind badly, so badly, that post bridge I thought I had over-taxed myself and was completely gassed. I recovered though and kept going for the rest of the morning. Sometimes the body is like that.  As far as the heavier/lighter rider thing goes, I was out today with one guy who outweighed me by (not kidding) literally 100 pounds.  The wind came and he just pushed harder, but he had to really struggle to lift himself up the bridge.  (Dude's a wall though - it was like drafting a dump truck.)

Other than that, the traffic seemed fine compared to some places, and the roads were decent enough to ride on. There were a lot of puddles about, so I ended the day looking as though I’d been mountain biking.  And, of course, when there is no wind, or when you have a tail wind, flat is just fun.

As much as it pains me to say it, I see a gear purchase on the horizon. I need to get a camelback that won’t lie on me like a wet blanket. I could go with the wedgie bag and water bottles, but, the problem is I like to take stuff with me on rides. I usually go alone from the house instead of a car, so while out on my own I like to have: map, compass, bike tool, pump, patch kit, mp3 player, cell-phone, ID, credit card, cash, keys, sunblock, aspirin, Neosporin, bandaids. Sometimes a camera. And of course, food and water. That gets heavy. But I do, and have used, these things. I’ve also been caught without them 40 miles from home, which is no fun.

Final tale of the tape was about 56 miles and change at an average of 17+mph. The average was probably raised somewhat by riding in a group, some of it was depressed by fighting headwinds alone in the afternoon. I got the Little Red Rocket up to 40mph on the bridge descent. And I wasn’t even pedaling.

 

CT EarthNet

I seldom do web plugs for do-goodie projects that I like, but please check this out.  You can vote on-line to help them secure funding.

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CT EarthNet is an attempt to create a dynamic portal to connect community-based environmental organizations in Connecticut.  CT EarthNet has been nominated for a NetSquared Innovation Award and your vote can help provide a powerful network resource to community environmental groups around our state.  The NetSquared Project is seeking projects that utilize the technologies, tools and communities of the web to create societal impact in a sustainable fashion. Winning proposals will be chosen this week based on the vote being held at its web site.

To vote, click here. You must register, which is free and quick, and vote for a minimum 5 projects. Guidelines are on this page. Voting closes Friday!

Banning and Blog Policy

For what it’s worth I just banned “Hedo James Lukans Chubs/Pikachu” (same IP) from commenting.  If this has any unintended consequences (like inadvertently banning an innocent third-party from commenting) – my apologies.  Please e-mail me if I need to correct the blog settings.

As far as our mysterious troll goes, I think I’ve been clear in the past that if you want to disagree with me that’s just fine as I welcome debate.  There’s no need to use your real name or to watch your language if you feel passionately about something. 

However:

1) This is my blog, so I reserve the right to edit content, even content posted by third parties.
For example, as a personal preference, I will often edit out the proper names of non-celebrities if you use them without the named parties permission.  (Unless that person blogs under their own name of course.)

2) You shouldn’t be surprised if I actually respond to or disagree with something you write here.

3) I have no patience for either ad hominem attacks or, well, drek.   Hence the banning.

Sheesh - go elsewhere.

Thanks to Evan's always enjoyable law school update, I've a lot of traffic to the blog,  Now - go away and read something interesting.

Kent's philosophy of climbing is the same as mine.  At some point during our 1L year, In Limine noted on one DC climb that I outstripped him on a fixed gear. . .but the fixed gear only gives you one optimal speed for your weight, given the grade, so you just grind it instead of taking it easy. 

Crazy Biker Chick writes the letter to drivers we all wish we'd written.  (Did I not link this earlier?  Perhaps I dreamt/meant to.)

If you want to start blogging, Todd has a PD blog name ready to go (footnote 4).

Flashes reports the latest mexican stand off with rodentia.

Steve's getting hit with the (rhythm) stick for his birthday, which is a prime number year.

Moral Turpitude does not feel that hot, while Kevin could use a hand.  Tremendous blogger - take his request seriously as he can spot a good poem when he hears one.

Speaking of good poems, Bill Knott makes an interesting connection between two of my fav. poems, Seth reviews Josh Bell's new book, and  Steve's doing the Truth/Lie dance.

Updating the Blog Roll, Not Blogging, Crim Law Blogging, Vegetarian Haggis.

Updating the Blog Roll

I’ve been trying to update the blogroll and clean up the site a bit.  If you’re not listed on the right hand bar, please let me know and I’ll add you.  You know who you are.

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Not Blogging

Last night, at a birthday party for two Section 3 peeps, I was taken to task for letting my blogging slip.  Actually, I had a kind of incident that I wanted to sit on for a bit before blogging, and that post became my placeholder – I felt I couldn’t blog, even on unrelated issues, until I’d resolved that initial issue/post.  But it’s done and I’m back on track.  Anyone ever experience that kind of blogging quasi-paralysis?

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Crim Law Blogging

This might be a good time to discuss blogging about the Clinic and legal stuff in general. 

First off, I’ve added a disclaimer to my blog’s right hand bar.  I won’t directly respond to legal questions beyond to say that you ought to go contact a lawyer who can help you.   There are lots of reasons for that response – but basically it’s because the law is a subtle and tricky thing that varies from place to place.  If you really need legal advice to help you make any kind of decision or advise anyone, you’re best off going to someone who is familiar in that area of the law, establishing a confidential relationship, and getting sound advice.  Think of lawyers like medical specialists.  You don’t ask your dentist about nerve trouble in your legs.  Sure, the dentist might know *something* about it, but what you really ought to be doing is talking to a specialist.

What you will find on the blog are my (mediated) reflections on my legal experiences, partially fictionalized and elided to shield my clients.  I think that sharing these reflections is important for several reasons. 

On the most basic level, I love to slay assumptions and myths, especially those that “professionals” perpetuate in an effort to cultivate some kind of mystique or create barriers between themselves and the unwashed masses.  I’ve long done this with poetry – the blog reflects that to a degree.  While I don’t doubt that poets need *some* ambiguity in discourse and some metaphorical reflection on what they do, I draw the line at what I think is smoke-blowing.  I like to challenge poetics – specifically, I like to see how well they’re put together and if they do what people say/think they do.  A better understanding of how things *actually are* can only improve what we bring to future processes – where we sink our resources and why, what we choose to value and why.  It’s a basic “kick the tires” philosophy.

As far as the law goes, there are a lot of assumptions and myths out there.  The law and legal processes are fertile fiction-making ground.  However, the problem with this is that the need for equity and justice is fundamental to our make up, some would argue it’s actually a biological imperative.  When there’s bad data fed into our need for fairness and equity, say, in the form of too many stories about X, our society often errs and creates injustice in the pursuit of justice.  This is especially true when we’re dealing with  situations/crimes that strike a deep emotional/moral chord within us. 

For example, our societal/collective emotional reaction to child molesters (whetted by all the media stories and hard vituperative commentary) *greatly exceeds* our emotional reaction to corporate criminals.   I’m not saying one shouldn’t be thought of as worse, but the fact remains that one is an easy emotionalized target in the mass media and one is not.  This ease in emotionalization means it’s relatively easy to write the TV show where the gritty cops struggle to save a small child from a monster.  It’s harder (although it’s been done) to write a script for a TV show that shows the diffuse harm created by someone destroying companies in the pursuit of the capitalistic dream.  There are no easy images for the mind to latch on to.  We haven’t invested our cultural and artistic resources in creating those kind of images, in mythologizing those figures.

Should we give a *relatively* free pass to someone who, by manipulating financial systems, destroys tens of thousands of people’s security and thus systemically creates the stressors which intensify the chances for depression, suicide, domestic violence (which could create a child molester) and substance abuse?  What about the “enablers” for those corporate criminals – those who tacitly encourage activity by, say, telling the right jokes, or who openly engage in shady but not illegal practices?  They’re off the radar, even though the collective harm they create is arguably far greater than the lone molester.

Consider the *amount* of coverage given to Carr recently, the sheer amount of human thought wasted on a wanna-be molester and his circle of acquaintances.   Our society is too complex for single issues to dominate public discourse. 

I think one way of reclaiming some of the public discourse or societal thinking space is to simply talk about issues.  I’d like to add my voice to the many who are already out there (see crim law blawgs on the right) to report on what I see, counter assumptions, broaden a few perspectives, throw some clichés under the bus.   

Blogging is a good way to do that.  Even if it’s only an audience of new 10 random persons a day, you have the chance to present your arguments to someone who may fully read through a post and do some thinking.  That kind of incremental change is worth my time.  Certainly, if any of those people are ever going to sit on a jury in their lives.

If lawyers, per The American Bar Association Model Rules of Professional Conduct, have a moral obligation to engage in public interest legal service, one aspect of which is educating the public about legal matters, then blogging seems a very important and effective way to do this.

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Of course, the problem with just openly blogging about my experiences in the criminal justice system and letting people make up their minds about what I’m relating is that there’s an issue of client confidentiality.

People need to be able to trust their lawyers – when only one person stands between you and the state locking you up, that person should have all the information they can about “things,” and that information should be sealed, locked, and sacrosanct.  Thus there are some things I can never blog about. 

So, unfortunately, many PD bloggers often settle for not writing about their client’s cases, or to linking to news articles about criminal law matters.  I’m not here to criticize that practice, although I do think it may be a bit more cautious than is necessary. 

I’m going to explore the ethics of blogging about client cases further and may change some of my practices in the future.  But for a first rough cut, I think I ought to worry about client confidentiality/trust, ex parte contact, unauthorized practice of law, admissions (which can be used against my client or myself).

Obviously, I can’t ethically reveal any embarrassing information about my clients.  Nor can I divulge their confidences.  Nor do I wish to divulge their identities.  So I should shield my clients on the blog. 

The odd thing about this is that so much of what I should be shielding (as an ethical matter) is public information.  While, anyone can go to (or call up) a courthouse and get information on pending cases, at least *I* as the client’s counsel, am not revealing it.   

I think that actively obscuring client identities, using their cases to talk about “that type” of case in general, and, of course, simply refraining from revealing problematic details, is a good fit.  I think I can go with “public” facts – i.e., whatever anyone in the courtroom could have seen or heard – but I think I have to be careful about selecting those as well, insofar as they might say anything about my trial strategy, or hi-light any information that could potentially come back to haunt a client, etc. 

So, what does that leave?  Mostly my impressions from my end.   Some general discussion about types of cases.  Should be enough.

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What does this have to do with Vegetarian Haggis?  Nothing.  Except I have some in my fridge.  Actually, it’s even Vegan, if you can believe it.  Mushrooms, nuts, quorn (great stuff), oatmeal, olive oil, black/white/red pepper and some of the more savory spices.  I made up a batch in the slow cooker, along with some potatoes and turnips, for no reason at all.  I got the fire, but the smokiness and richness is lacking. 

I also made some of my mock chicken soup – but not vegan since in involves egg whites.  It’s a lot of food but I need the fuel.  I’m riding some kind of cold/flu/achy thing.  The headcold element is small, but yesterday I had trouble climbing the stairs here as I felt sluggish and light headed.

Food + sickness + long week =s lots of reading, much catching up with Battlestar Galactica Season 2 (is my stomach tight because of sickness or plot-line?), and placating El Gato Perfecto with small bits of string and fur.

There's also endless legal stuff-a-tude, which will be the subject of my next post.

Poetry Contest

I don't normally post up notices about contests, but a friend asked me to spread the word.  Good people, good cause, done the right way.  I know Kevin, and he has buckets of integrity, but the real thrust behind this is that you're donating money toward a good goal. 

Poetry Fights Hunger!

The Auburn University Center for the Arts & Humanities announces a national poetry contest to fight world hunger. The winning entry will be chosen by Kevin Pilkington, author of Ready to Eat the Sky,  awarded a $500 cash prize, and will be published in the Birmingham Arts Journal. All remaining monies benefit the World Food Programme.

To submit:
• Send up to 3 poems with an SASE for contest results to Poetry Fights Hunger Contest, Pebble Hill, Auburn University, AL 36849-5637
• Include your name, address and email on the back of each page of each poem.
• We do NOT accept previously published poems.
• Do not send your only copies as poems will not be returned.
• Entry fee: $12/up to 3 poems.
• Make checks payable to Auburn University (indicate in subject space: War on Hunger)
• Deadline: March 1, 2006.
• For more information visit www.auburn.edu/hunger

What's Wrong With Wiretapping

Wiretapping – you should go to Seth’s blog for the one paragraph, 5 min read, easy to follow legal analysis of the root of the scandal.