Tuesday, July 26, 2005

More Theater Stuff

Just got word that a script I was dinking around with been accepted for production in City Circle's 2005 New Play Festival. I suppose that makes me an author. Or something.

I'm also going to be in Baal. It should be interesting. Veeerrry interesting.

I guess Dreamwell's also going to take another stab at reprising Book of Liz.

Auditions for On Golden Pond out at Iowa City Community Theater are going to be held the 3rd and 4th of August.

Finally, after a few gin and tonics I've apparently agreed to sing in public at Catalyst's next Cabaret at the Siren. God help us all.

Ah, Most Venerable Vampire-San

An E-bay autction for 21st CENTURY VAMPIRE KILLING KIT-------- NO TATTOO HERE
My favorite all-caps sentence:

Potentially scariest question:
Q: The aluminum case, would a lap top fit in there or will two hand guns? got the keys? IS the case airline approved? Thanks

Umm. . . why do you ask?

All the World's a Stage

Or most of it, anyway. The Daily Iowan scopes out local theater opportunities. C'mon and play with us.


The latest blawgreview is up.


See this piece?

It was drawn using MS Paint. Yep, that stupid program under "accessories."

Color me impressed.


Apparently the trend in marriage ceremonies these days is to hedge your bets, vowing to stay together "as long as we both shall love" or "for as long as our marriage shall serve the greatest good" or "until our time together is over."

Question: If you don't think you're going to be together forever, why would you put yourself through a ceremony? Really, the "benefit" other than shared insurance is that a very, very expensive court proceeding is required before you can decide who gets to keep the car. You already know you're going to break up eventually. Wouldn't it be easier just to live together?

Dappled Thoughts raises another point:
Why is this sort of thing not provoking all sorts of outrage, petitions to Congress, proposed Constitutional amendments, and so forth? Why aren't all the marriage defenders picketing city hall on this? Why should my tax dollars be spent on government recognition of these kinds of unions, which I'm morally opposed to and aren't really marriages at all? If one's going to be consistent on the civil marriage question, it seems to me that one should oppose (or support, or ignore) legal recognition of these sorts of heterosexual unions with the same vehemence (or lack thereof) as one opposes (or supports, or ignores) legal recognition of homosexual unions. The same thing goes for the strings of divorces and remarriages, or for unions that deliberately exclude children, or for "open" marriages where both parties are free to be as unfaithful as they please. It doesn't make sense to rail about two men getting married up in Massachusetts, while winking at these civilly-approved parodies for the simple fact that they are contracted by people of opposite sexes. Give them both a pass, condemn them both, or get the government out of the approval business altogether. But at least be consistent.

I've always wondered why gay sex is worse than unmarried hetero sex on many people's sin-radar. It seems the same to me, but I don't see entire busloads of churches picketing movies involving unmarried sex. Just wondering.

I'm Sure it Seems Odd to Others

That in the same country, one state can be debating whether lethal injection is cruel and unusual because the shot in the neck could hurt too much, while another state's house just passed a bill requiring castration of child molesters. (NOTE: not chemical castration. The regular kind.)

Define "Hidden"?

Your Hidden Talent
You are both very knowledgeable and creative.
You tend to be full of new ideas and potential - big potential.
Ideas like yours could change the world, if you build them.
As long as you don't stop working on your dreams, you'll get there.

Discriminatory Nicknames

Law.com has an article on a 9th Circuit case that finds the use of nicknames such as "Manny" or "Hank" instead of the plaintiff's given name of Mamdouh El-Hakem was a discriminatory practice on the part of Gregg Young, the CEO of BJY Inc.
"Young intended to discriminate against El-Hakem's Arabic name in favor of a non-Arabic name," Judge Johnnie Rawlinson wrote for a three-judge panel, "first by altering Mamdouh to 'Manny' and then by changing Hakem to 'Hank.'"
The ruling is the latest taking an expansive view of the types of behavior that can constitute a hostile work environment.
Jeffrey Wohl, a partner with Paul, Hastings, Janofsky & Walker who defends employers, also agreed with the court. He said that employers should understand that differential treatment for any reason can open a company up to litigation.

"Discrimination means treating people differently and adversely because of a particular characteristic," he said. But this broad definition, he added, isn't always clear to employers.

The ultimate lesson employers should learn from the opinion, Wohl added, is that in certain situations, even the names "Manny" and "Hank" -- hardly racial epithets on their own -- can be as damaging as "the n-word."

Vision is Relative

Some very cool optical illusions.

To Quote Homer: "D'oh!"

From the "what were you thinking" files of the White Collar Crime Prof Blog comes this email from a lawyer to his partners:

I completely overlooked an important recent decision that dramatically changed the landlord-tenant law. (How I missed the case is a mystery since I read the advance sheets. Arguably the case is indistinguishable, but there is a $1M risk of malpractice if I am wrong . . . . I fell into the trap in a major way.)
Of course, it was discoverable as part of the malpractice suit . . .

Friday, July 22, 2005

Theater Stuff

Gypsy opens tonight in the Englert.

Gypsy marks the opening of City Circle's eighth season, and it's the company's first performance at the Englert. Carroll emphasized the significance of staging this particular show at this location.

"The Englert Theatre was built in 1912, and the vaudeville era was alive and strong at that time," he said. "Gypsy and her mother, Rose, actually did do vaudeville, and it's really neat to be able to have City Circle doing Gypsy in a real vaudeville stage now that they've renovated it."

The production also features a live orchestra, including a harp, and both the musicians and the cast come from around the area. Carroll and lead actress Marcia Hughes (Mama Rose) are from Cedar Rapids, and Cary Beatty (the manager, Herbie) is from North Liberty.

UI junior Christina Gulick plays Louise, or as she is later known, Gypsy Rose Lee.

It really should be awesome. Chris Gulick has an incredible voice, and is a very expressive actress. I'm going to usher next weekend, and should be able to give the full report then. If you're in the area, definitely do NOT miss this one.

UPDATE: A review is here. Apparently, Marcia Hughes steals the show.

Thursday, July 21, 2005

Weird Inventions

Key quote:You use your buttocks to control the music.

Oh Geez

On behalf of women everywhere: Please don't encourage them. Please.

So much for the whole

"that's just an urban legend" thing.

Harry Potter Theory


Lawyers and love.


(NOTE: It's Salon. There's an ad you have to live through to get a daily pass. Deal with it.)

Side Notes

has lawyer love contracts, Harry Potter theory and more.

Meme Too

via Matt and Homercles - The Fives Meme:

What I was doing ten years ago:
Starting my very first job as a newly-licensed attorney. Wow. I'd just married, and had wanted to move out of state. Didn't work that way so much, 'cause the ex just wouldn't go. I did succeed in getting about three hours away, but was living by myself in a really cool victorian house. Got my dog to keep me company. Drove back on the weekends to see people. The work was cool, I was the only assistant county attorney so I got to do a little of everything. My first case: over the limit squirrel hunting. I wasn't even aware one would want to hunt squirrels, much less that there was a limit on the little bastards.

What I was doing five years ago:
By that time, I'd moved into my current house and was working in another prosecutorial position. I had just heard about my current position, with a hefty raise and the idea of not having to appear in front of peculiar judges and work in a very, um, stressful environment. I was seriously contemplating jumping ship even though it meant not appearing in court anymore and re-learning torts, insurance law and civil procedure.

One year ago:
I had just separated from the ex the second time and filed for divorce. My plan was to sell the house and re-evaluate what I wanted to do with my life. Visions of doing a writer's workshop and travel floated through my brain. I was trying to figure out if I could combine things so I could get back into the courtroom. I was just about to find out about my mother's having cancer, and had no idea relatives all around me would be dropping like flies for the foreseeable future. Sometimes it's a blessing you don't know what's coming.

Worked, then went to Catalyst's cabaret fundraiser. No, not that kind of cabaret. People in nice clothing singing broadway hits. Kind of a glorified karaoke. After a few gin and tonics and a promise from a friend to coach me, I agreed to perform one song at the next one. But I'm going to see if people forget about that one . . .

Five snacks I enjoy:
Nachos sans refried beans. Peanut butter on saltine crackers. Kettle-cooked potato chips. Bread with that fun dipping oil. Cheese.

Five songs I know the words to:
Good lord, about anything I like. I have this awful proclivity for getting song lyrics indelibly printed into my brain.

Five things I'd do with $100,000,000
Pay off all debts. Pay off my dad's and sibling's debts. Buy a car I actually like. Take a huge honking tour of exotic locations with one hell of a wardrobe. Fund a show or two. Go out on my own so I can not answer to anybody, ever.

Five locations I'd like to run away to:
Europe, Asia, North and South America, Africa. Specific enough for you? Seriously, I'd be dangerous if I really had money to travel. I want to see, like, everything. Twice.

Five things I like doing:
Reading, acting, writing, trying all kinds of new activities/places - basically exploring the world, and having intense debate-style conversations with good friends who don't take themselves too seriously.

Five bad habits I have:
Being way too self-critical, trying to do too much so I've never got enough time to devote to any one thing, spending too much on clothes/makeup/hair (it's an investment, dammit), trying to fix things that are out of my control, and, let's face it, blogging.

Five TV shows I like:
Battlestar Galactica, Sex in the City, and from there on in it's pretty much just movies these days.

Five biggest joys of the moment:
Contemplating what I want to do with the future once all the current ickiness is over. Acting. Being with people who make me laugh so hard the beverage I'm drinking flies out my nose. Lying on the beach.

Five favorite toys:
Now or in the past? When I was a kid: Atari (yep, I'm that old, cool arty-crafty supply things, barbie dolls (I can admit that), my roller skates, and board games like Clue, Monopoly, and so on. Now: my MP3 player, my laptop, Tivo, and my grown-up arty-crafty-barbie supplies like makeup, jewelry-making stuff, painting stuff and so on. Toys have gotten much more expensive as I age.

TMI or what?

Refreshing Recollection

Ken Lammers examines the hearsay exception for past recollection recorded. Scenario:
The defendant was pulled over for driving suspended and the officer found marijuana in the glove compartment.

The officer testified that the defendant admitted the marijuana was his.

On cross, the officer admitted that all he could remember the defendant stating several times "C'mon, gimme a break." He had no memory of any question on his part or any other statement by the defendant.

The judge, sua sponte, starts asking the officer if he is relying on his report and if he wrote the report the same time as he took the statement. The officer replies, "I wrote the report on the same day."

The defense tries to strike the evidence because the officer has no independent recollection. The prosecutor submits. The judge refuses to strike the evidence explaining that yes, the officer has no independent recollection but that the report was contemporaneous and therefore allowed into evidence as a hearsay exception.

Ken's analysis:
I think that in this case the exception fails the 4th test. Taken literally, we already know that the officer cannot remember the statement and therefore cannot vouch for the accuracy of the written memorandum. A truly horrendous interpretation of the 4th test could interpret it to mean that the officer has to testify that he files honest reports. As if an officer is going to say, "Well, I don't know judge. Every third report or so I liberally infuse the report with a series of lies." This renders the 4th test a farce and is pretty clearly not what it is meant to reach.

In fact, the 4th test is the most likely limiting factor for this exception. It would have to be a case by case analysis but there is a perfect example of what this exception is supposed to reach in Bailey v. Commonwealth, 20 Va. App. 236 (1995). In Bailey the clerk from a store could not recollect in court what items had been stolen from the store. However, he was able to read from the police report the items which had been stolen. He was able to do this because after the break-ins he went through and inventoried the items with the deputy and told him all the items which were missing. He clearly recalled having done this and could testify to its general truthfulness because he had the memory of having done the specific inventory.

I've thought about it, and I think I disagree. I'm nerd enough to still have my Imwinkelreid in the office, and it states:
Suppose that the witness on the stand cannot recall a particular fact or event. The witness' inability to recall supplies necessity for resorting to hearsay evidence. If at the time of the event, the witness had made a record of the fact or event, the record would be a reliable substitute for the witness' present recall. . . .

4. The witness can vouch that when he or she prepared the record, the record was accurate. Ideally, the witness will recall the very occasion on which he or she prepared the document. Alternatively the witness may testify that he or she habitually records that type of information and that their habit is to record the information carefully. A police officer assigned to the traffic detail could give that type of testimony about measurements at accident scenes. Finally, in some jurisdictions, it is acceptable if the witness at least recognizes his or her handwriting on the document. . . .

I think it makes sense, even in reference to the example Ken uses. In that case, the clerk remembered doing the inventory and that he told the officer specific items that were missing. He just couldn't remember what they were in the present - which is why the "refreshed recollection" exception was inapplicable. In this one, the officer claims he remembers having this specific conversation with this defendant by the roadside on that date. He just doesn't remember specifically what was said. I don't think it's that much of a stretch.

What actually bothers me is that the judge came up with the exception sua sponte. I'm talking philosophically here: the judge technically functions as arbiter, the prosecution brings the case. Do we want the sitting judge proactively fixing a fatal flaw in the prosecution's case that the state's attorney is apparently not capable of repairing?

Regarding the Crawford issue that Ken also raised, I don't know that it's a violation. The witness is present and ready for cross-examination. No, he can't recall the specific words that were said. That can be brought out in cross. He may have a fuzzy memory on the details of the conversation. Again, cross him on that. I don't think you can extend the Crawford rule against tape recorded statements of an utterly unavailable witness (spousal privilege) to hold that confrontation requires an available witness to have a present recollection of the words of the conversation.

Ken adds that he's not sure the officer passed the first part of the test in that he didn't appear to have first-hand knowledge of the possession. I think that's a framing issue. You want him to prove he had first-hand knowledge of the defendant's possessing the marijuana - the very thing that the confession was crucial in establishing. If I were on the opposition, I'd maintain that that element was completely satisfied by his having possessed first-hand knowledge of the stop, the presence of the pot in the glove box, and the resulting conversation with the defendant in which the confession was made. No, he currently does not possess first-hand knowledge/recollection of the confession itself, but that's the purpose of the exception.

UPDATE: Yep, I'm a trial geek. I still have Mauet, too.


Fitz-Hume reminds me why I've bought my own exercise equipment.

I think if someone "accidentally" injures "flip-flop guy" or "wife beaters and jeans shorts guy" the women's bar association should take up a collection for the defense. It's a public service thing.

Excuse Me

The Peoria Police Department are giving dating tips to help prevent prostitution:
If your wife is not meeting your needs, try meeting hers. It can do wonders. No wife at home? Try finding a decent woman whom you can love, cherish and respect and then make her your wife. If you are not willing to put in that kind of effort, try a dinner and a movie.

Windypundit comments:
So, we should barter for sex with food and entertainment instead of doing a straight cash deal?

Okay, the comment is funny and facetious.

But it reminded me of some feminist theory I read in undergrad, the theory that marriage is actually a form of legalized prostitution. The concept is hardly new, Mary Wollstonecraft supported it a couple of centuries back. Apparently, the Peoria PD finds it somewhat applicable to modern life?

The problem I have with the theory is it presupposes a stereotype: women wouldn't do it unless they're paid, but men will pay anything for it, be it cash, security, freedom, whatever.

Hmm. Sorry. Facts not supported by the evidence.

Monday, July 18, 2005


My company laptop flatlined this morning. I've acquired a loaner PC until I can adopt a new laptop from the IS orphanage.

Then I get to work on gradually resetting everything back to how I like it:

1) I don't like "smart" menus. I want to see it all, including all file extensions and hidden files. Yes, Mr. Gates, that includes program files.

2) Retrieve my old office normal.dot from one of many places I backed it up on the company network, so I can see my toolbars, macros, and extensive autotext entries on WinWord.

3) Redo my office keyboard - I touch-type and I have an old form of the WordPerfect f-key commands memorized. It's faster than mousing it and I refuse to rememorize them. I reconfigure the keyboard instead.

4) Reconstruct media player playlists and calendar views.

5) Retrieve my wallpaper from the net.

6) Try to force Bloglines and my personal email notifier to play nicely with the new software.

7) Etc. Etc. Etc.

It's going to be a long week.

The only bright spot: I finally get upgraded from Windows 2000.

More Nipplage

Jennifer conducts a poll for the guys: How sensitive would you say your nipples are? Are they an erogenous zone, or would you really prefer to have them left alone in favor of other areas?

BTW - Megan's got the inside track on some pushup bras with removeable pads. Will investigate on the next shopping trip.

Useful Math

The Freakonomics of Love:
You just caught your man in bed with some worthless Kittyblogger. Without a second’s hesitation, you launch a clock radio at the bastard’s forehead. Why such fury?

I pondered this question over coffee with my friend J.P. a few weeks ago. An epidemic of infidelity had afflicted our circle of friends. Some cried rivers, some pelted their lovers with rotten vegetables, some recited their mea culpas, and a few culprits regretted the very day the obstetrician wrapped his gloved hands around their little skulls. For our part, J.P. and I sat down to discuss the anatomy of these emotional reactions. . . .

Think of men as goods available on the meatmarket. The finest of these beefcakes are much costlier to obtain than others, requiring you to spend more money diversifying your designer portfolio and more time working on your butt and hips. The entire value of the man derives from his relative unavailability and high cost vis à vis other men. An exclusive relationship with this man makes him entirely unavailable to others and drastically lowers supply of fine men on the meatmarket. Should the man violate his commitment to you by taking another Belle out to a romantic dinner, the supply of men will increase and his value to you will decrease.

After J.P. and I solved the mysteries of love and jealousy, further research revealed that devalued relationships are closely correlated with flying clock radios. The anatomy of our emotional reactions is couched in economics. . . .

Now if we could just get the statistical probability of winning with any given relationship combination?

Quiz Time

Your Inner European is French!
Smart and sophisticated. You have the best of everything - at least, *you* think so.

In a Past Life...
You Were: An Arrogant Spice Trader. Where You Lived: Russia. How You Died: Killed in Battle.

Part Expert Kisser

You're a kissing pro, but it's all about quality and not quantity. You've perfected your kissing technique and can knock anyone's socks off. And you're adaptable, giving each partner what they crave. When it comes down to it, your kisses are truly unforgettable.

Part Passionate Kisser

For you, kissing is about all about following your urges. If someone's hot, you'll go in for the kiss - end of story. You can keep any relationship hot with your steamy kisses. A total spark plug - your kisses are bound to get you in trouble.
(Yeah, yeah, I know. Prove it, you say).
What Kind of Kisser Are You?

Geek Night

The season premiere of Battlestar Galactica and the release of the new Harry Potter all fell on poker night. What kind of cosmic convergence is that?

Tivo took care of Galactica, which I watched when I got home after placing second twice (dammit, I want first!). Cool opening for the new season.

By Saturday night, I'd bought and finished the Half-Blood Prince.

Not a small feat, since I'd had to reread half of Order and part of Goblet, to get reacquainted with the minutae of the plotlines.

Spoilers (as oblique as I can make them): Less angsty than the prior book. Not a bad read, the characters are becoming more complex and less obvious on the good/evil split. I don't buy the betrayal at the end, I think he's a double-double agent. Minor gripe: What is up with the gratuitous cross-dressing reference - couldn't you have done something funny with that if you're going to throw it into the plot? It's got tons of possibilities, but it's just mentioned and dropped. Oh well.

Of course, the copy of "Becoming Justice Blackmun" that had just been given to me sat neglected on the kitchen counter all weekend. . .

Priorities, I tell you.

Rules of the Playground: No Playing?

This is a real article from the South Florida Sun-Sentinal:
Andrea Levin is grateful that Broward County schools care about her daughter's safety. But this year when they posted a sign that demanded "no running" on the playground, it seemed like overkill.

"I realize we want to keep kids from cracking their heads open," said Levin, whose daughter is a Gator Run Elementary fifth grader in Weston. "But there has to be a place where they can get out and run."

Broward's "Rules of the Playground" signs, bought from an equipment catalogue and displayed at all 137 elementary schools in the district, are just one of several steps taken to cut down on injuries and the lawsuits they inspire.

"It's too tight around the equipment to be running," said Safety Director Jerry Graziose, the Broward County official who ordered the signs. "Our job was to try to control it."

How about swings or those hand-pulled merry-go-rounds?

"Nope. They've got moving parts. Moving parts on equipment is the number one cause of injury on the playgrounds."


"Nope. That's moving too."


"Well, I have to be careful about animals" turning them into litter boxes.

Cement crawl tubes?

"Vagrants. The longer they are, the higher possibility that a vagrant could stay in them. We have shorter ones now that are made out of plastic or fiberglass."

Via Overlawyered.

Big Law v. Crim Law

Marquis and Aurbach in Nevada apparently discriminates against former criminal attorneys:
"[W]orking for the government right out of law school often disqualifies young attorneys from ever landing a job at a prestigious law firm."

Ever? Seriously? Their rationale:
[A] young attorney who has worked for the government has learned nothing about dealing with individual clients, quoting fees, keeping clients advised, and grasping the many complex issues that are presented by business clients on a day-to-day basis. And while it may also be true that government attorneys learn to think on their feet (often opening a file for the first time while they are in court standing in front of the judge), this is not good training for handling complex business cases where preparation is the number one priority. Just as important, a government attorney has had no experience billing 40+ hours per week or even keeping track of their time.

Arbitrary and Capricious comments:
I weep. All these years of haggling and litigating over people's freedom have left me unequipped to deal with the issues that really matter, like whether Corporation A will pay Corporation B's attorney fees.

Injustice Anywhere, a former lawfirm lawyer who jumped ship for the public defender's office posts a list of "things I don't miss about working as an associate at a big firm".

A Public Defender responds: "it is ludicrous to suggest that prosecutors are unable to grasp complex issues (business or not), or are unable to prepare. Ask any prosecutor (or pd) who has tried a lengthy felony case."

But Ken Lammers says it best:
I've seen BigLaw guys make forays into criminal court before. A guy comes in in the suit that looks like it cost more than I earned all of last month, he has diamond studded cuff links, and his hair is perfectly coiffed. He might as well tattoo "I don't belong" on his forehead. It can be pretty painful to watch as prosecutors {a} have a merry old time gently roasting him over the flames of Tartarus, or {b} get extremely upset because a 5 minute driving suspended case turned into a 45 minute fiasco and lash out.

My own two cents:

Yes, there is a skill set involved with maximizing billable time. The latest Stankowski Report on Notes from the Legal Underground gives examples:
1) Apparently, you cost too much to waste your time copying things. Don't do it. They will yell at you.

2) You really can bill for thinking about things. In fact, it is demanded. This is a difficult concept to deal with initially, after all, who the hell gets paid for their thoughts? Well, you do. Do the clients know this? Of course not, to them, we are "Strategizing." Similarly, clients never pay for "meetings" or "discussions." Instead they pay you for "working with X. Attorney regarding discovery issues."

3) You don't need to worry about this next thing at all, especially not for a few years, really, don't even trouble your pretty little head about it. However, there is a thing called a realization rate. This is the amount of time that the client is actually billed for as opposed to how much you really spent. Eventually, you will need to get it up to about 94%. But not right now. (Stan:"Really, because you have mentioned it like five times in a row, shouldn't I be worried about it now." Any partner: "Ohhh no, not at all. Still, its not good to write to much time off. Not that you have to worry about it.") . . .

That said, the assumption that an attorney who is capable of trying a complex felony case is incapable of "dealing with individual clients" and "grasping the many complex issues that are presented by business clients on a day-to-day basis" shows a remarkable lack of comprehension as to what criminal law entails.

Criminal law presents ample opportunities for dealing with clients, regardless of whether you sit at the defense or prosecution tables. Your average prosecutor has "clients" waiting outside the building first thing every morning: crime victims who have been assaulted, raped, robbed, stalked. The lawyer must spend the next several minutes getting the details of crimes - often quite horrifying - without further traumatizing the victim, then get up to the initial appearance to take care of business. It's not simply a matter of finding out what happened, there are a million questions that need to be answered about what happens next, and what the victim is supposed to do in the meantime. For example, domestic violence cases involve no-contact orders between the victim and the defendant. Issues about child care, work, residency, and so on need to be addressed. The day doesn't end at 5:00 either: how about the four a.m. phone calls to defense counsel from clients who are being arrested, or to prosecutors from officers wanting a complex fourth amendment question answered? There are also the daily calls for updates on both sides of the fence. I am aware corporate clients can be difficult, but how many of them shoot up your house if they don't like your answer? Stalk you? Make credible death threats?

Criminal law issues are every bit as complex as those in any other area of litigation. The amount of appellate litigation involved alone should attest to the intricacies that can crop up. Criminal attorneys are also very versed in Daubert and its progeny, as well as specific admissibility rules on forensic evidence and testing. All this translates into an ability to think quickly, analyze difficult issues, and argue cases that may quite literally decide who lives and who dies. It is an enormous responsibility that should never be underestimated.If I recall correctly, law school was about teaching us how to analyze, argue and innovate. There is no reason on earth why a good attorney can't make the transition to a new area of law, if willing to put in the time and effort to minimize the learning curve.

Pierre Pierce Stuff

that I've noticed lately.

Pierre Pierce indicates he can't afford to get a job to pay rent:
Pierce, 22, asked Judge Gregory Hulse if he could stay with his parents and brothers at his Westmont, Ill., home, contending that he cannot find a job to pay for an apartment because of his frequent court visits.

The article in the Daily Iowan about the former Hawkeye basketball player, who is facing two counts of felony burglary, a count of assault with intent to commit sexual abuse, and a count of misdemeanor criminal mischief, didn't specify what kind of court he was referring to:
Pierce said moving back home to live with his parents would be better for him financially, because he doesn't have any income. He has looked for a part-time job but has not filled out any applications, Parrish said. The Des Moines-based attorney said Pierce testified that he is spending around five hours a day training for a possible basketball career.

Meanwhile, Pierce is arguing to limit any evidence of his prior bad acts:
Parrish contended in court papers that assertions of sexual assault by the alleged victim, criminal history, and evidence that Pierce violated a no-contact order several hundred times by calling the woman in March and April would prejudice the jury and should not be admissible, including references by witnesses or prosecutors. He requested a hearing on the matter, which will likely take place at a July 15 pretrial conference.

but that he should have access to all prior records of the "complaining witness," and be able to delve into all her business, including relations between her and her alleged new boyfriend:
Prosecutors preparing former University of Iowa basketball player Pierre Pierce's criminal case call his attorney's request for the case's alleged victim's cell phone records, photos and credit card statements a "fishing expedition."

Requiring Tiffany Whitsell to furnish cell phone records from between September 2004 and May 2005, credit card records through this month and color photos of Whitsell with Pierce causes an "undue burden on her privacy," prosecutors said of defense attorney Alfredo Parrish's request. . . . .

They also resisted in their court filing Parrish's request to depose Chad Wardlow. An e-mail message from Pierce to Whitsell, part of the court records, identified a person named Chad as Whitsell's boyfriend.

"It is the State's position that the relationship Wardlow has with T.W. and any involvement he had with Pierce is irrelevant and immaterial," Houlihan wrote, adding the state has no plan to call Wardlow during the trial.

Friday, July 15, 2005

Fresh Law

The Iowa Supreme Court decisions are up.

FINCH V. SCHNEIDER SPECIALIZED CARRIERS, INC. and TRAVELERS PROPERTY CASUALTY: Gary Finch was denied workers’ compensation benefits by the industrial commissioner on the ground he was not an employee. The primary issue was whether Finch was an employee or an independent contractor. The industrial commissioner, after discussing the evidence presented to the deputy, concluded that Finch established a prima facie case that he was an employee. However, the commissioner found that Schneider proved that Finch was an independent contractor within the definition provided in section 85.61(13)(c). The commissioner based that finding largely on the basis of the agreement signed by Schneider and Finch entitled “Independent Contractor Operating Agreement” (ICOA). Both the Court of Appeals and the Supreme Court "liberally and broadly construe[d] the findings to uphold his decision." But the Supreme Court granted further review primarily to discuss the court of appeals’ order for remand based on Iowa Code section 17A.19(10)(h), which provides that a court "shall reverse, modify, or grant other appropriate relief from agency action . . . [if the action]: h. . . . is inconsistent with the agency’s prior practice or precedents, unless the agency has justified that inconsistency by stating credible reasons sufficient to indicate a fair and rational basis for the inconsistency." The Court held that paragraph (h) does not establish an independent requirement that the commissioner identify other agency rulings and explain possible inconsistencies between those rulings and the agency’s decision in a case not reviewable under an abuse-of-discretion standard, and it was therefore not necessary or appropriate to remand this case to the commissioner for an explanation of a possible inconsistency between the commissioner’s ruling in this case and prior cases decided by the commissioner.

ESTATE OF PEARSON V. INTERSTATE POWER AND LIGHT COMPANY: The Pearsons had died following a natural gas explosion caused by a faulty piece of brass tubing, known as a cobra connector, connecting the natural gas line to a stove in the basement of their home. The plaintiff's expert testified the synergistic effect of sulfur in the gas and sulfur in the ethyl mercaptan caused a chemical reaction to occur in the phosphorous brazing alloy of the cobra connector which led the brazed joint to corrode and deteriorate. The resulting corrosion and deterioration led to a catastrophic failure of the connector in the Pearson residence and allowed gas to accumulate in the basement. The water heater’s pilot light ignited the accumulation of gas causing the explosion and fire. The plaintiffs alleged that the gas company had a common-law duty to warn its customers of the dangers inherent with using its gas. The defendants argued there was no such duty, and if it existed, the filed-tariff doctrine shielded it from liability. Defendants also challenged the amount of damages awarded for loss of parental consortium and for physical and mental pain and suffering. Regarding the common-law duty, the Court found that based on the Restatement 2nd of Torts Section 388, which Iowa follows, IES owed a duty to exercise reasonable care to inform the Pearsons of the dangers involved when the natural gas it supplied came into contact with a cobra connector if IES knew or should have known of the dangers involved, and IES had no reason to believe the Pearsons would realize the dangers. The Court indicated that testimony had showed IES was aware of the failures attributable to the cobra connectors prior to the explosion at the Pearson home. (Apparently, there had been at least two other fatal explosions resulting from failures of cobra connectors in IES’s area prior to the Pearson house explosion, and IES had received notices from the Consumer Product Safety Commission since 1979, yet IES employees were not trained to recognize and remove the cobra connectors from the field when the employees were in the customers’ homes.) Based on these facts, the Court found a common-law duty to warn did exist in this case. As far as the tariff issue goes, the Court explained it like this: The filed-tariff doctrine precludes actions that attempt to alter the terms and conditions contained in a tariff. The legislature designed the tariff system to replace private contracting between a utility and its customers. Terms of service that the parties would ordinarily put into private contracts are included in a utility’s tariff, which amounts to a binding contract between the utility and its customers. The purpose of the tariff is to ensure uniformity of utility rates and prevent a utility from discriminating based on price or service, but a utility can limit its liability in its tariff - if the limitation is within the tariff’s ambit. The tariff at issue here provided, among other things, that piping and equipment on customer’s side would be installed and maintained at the customer’s expense, in a manner approved by the public authorities, and that IES had no duty to inspect the piping and equipment beyond the outlet of IES’s gas meter, and even if it conducted such inspections merely as a courtesy to its customers, it had no liability for any injury, loss, or damage resulting from the use of the customer’s piping or other equipment. The Court did a thorough job of strictly construing the tariff against IES as the drafter:
"Section 15.02 of the tariff requires the utility to exercise reasonable care to minimize any hazard inherent in the gas services it provides its customers. A recognized method of minimizing a hazard is to warn the ultimate user of the hazard. By its terms, section 15.02 incorporates the utility’s common-law duty to warn its customers of the dangers inherent with using its gas. A plain reading of sections 4.06, 4.07, and 5.04 of the tariff leads us to believe these sections only cover liability for inspections and/or defects in the pipes on the customer’s side of the point of delivery, not for a failure to warn its customers of any hazard inherent in its gas service. Even if we assume IES is correct, and sections 4.06, 4.07, and 5.04 of the tariff cover all situations involving the pipes on its customer’s side of the point of delivery, the tariff is silent as to the duty to warn and in conflict with section 15.02 requiring IES to minimize any hazard inherent in the gas services it provides its customers. Accordingly, IES’s choice of language causes us to conclude the tariff did not preclude the estates’ claims on IES’s common-law duty to warn the Pearsons of the dangers inherent with using its gas."

Regarding the damage amounts, the reasoning was a little convoluted because the case had been submitted as one cause of action in which the parties had stipulated that everyone's fault had to add up to 100%. Thus, IES and Robert’s estate were the tortfeasors in Mary’s estate’s cause of action, while IES and Mary’s estate were the tortfeasors in Robert’s estate’s cause of action. Iowa's joint and several liability rules applied:
In actions brought under this chapter, the rule of joint and several liability shall not apply to defendants who are found to bear less than fifty percent of the total fault assigned to all parties. However, a defendant found to bear fifty percent or more of fault shall only be jointly and severally liable for economic damages and not for any noneconomic damage awards.

The jury found Robert 15% at fault in Mary's case, and Mary 15% at fault in Robert's. Based on this allocation, the Court found that judgment was proper against IES for eighty-five percent of the economic damages, but only seventy percent of the noneconomic damages, which included the awards for predeath pain and suffering and the losses for parental consortium.

MASON ET AL V. VISION IOWA BOARD: meetings between proponents of the Marquette-McGregor project and the negotiating committee of the Vision Iowa Board meetings did not fall within the statutory definition of a “meeting” subject to the open-meetings requirement of section 21.3. The Court reasoned that under the Iowa Open Meetings law, a gathering of a governmental body must be open to the public only “where there is deliberation or action upon any matter within the scope of the governmental body’s policy-making duties.” Certain amendments to the law had specified that some advisory groups would be subject to the open-meetings requirement when they deliberate or act within the scope of their duty to develop and make recommendations on public policy issues, but as to all other governmental bodies, the legislature left unchanged the definition of “meeting,” including the requirement that the body act in its policy-making role. The Court found no support that the negotiating committee had responsibility for anything more than recommending or suggesting to the board what course of action to take on the Marquette-McGregor project - ultimate authority to accept or reject the development agreement was reserved to the board; the committee’s duty was advisory only. Therefore, the meeting was not a "meeting" and not subject to open meetings laws.

Got it?

Miscellanei - the Mostly-Sex Edition

Hey, if I'm going to anonyblog, I'd might as well take advantage.

Miracle or freakish nightmare from hell? You make the call.

Guy: Sure, honey, I'd love to watch Beaches with you. I love meaningful movies about close female relationships. Why am I cheering? Never mind.

He shoots, he scores! Can men do nothing without someone cheering them on?

Ken Lammers of Crim Law writes:
"Women get away with some of the most outrageous clothing choices when they come to court. I think this is because male judges (who wouldn't hesitate to dress down a male dressed inappropriately) have the old fashioned notions that it is not their place to comment on a female's clothing."

He points out that female judges are less, um, charitable.

I'd make two comments: 1) That only applies for litigants. Female attorneys catch hell for showing up in pants rather than skirts in many courtrooms. 2) On the other hand, most men wouldn't know if you're wearing nylons correctly, and could mistake some of today's blouses for lingerie tops.

Too good: Ode to Instability. What a freak.

If a research study has shown that 1/3 of all research studies are wrong, do you factor in that 1/3 margin of error to figure that actually only 1/9 of research studies are wrong? Or would it go the other way? I'm just asking.

Does this really sound like a good idea? I don't think I want to let anyone into that area with a laser.

Burt's Law and Swimsuit Issue. One issue examined: the right of women to go topless at beaches. On a side note, there's nothing in the Iowa indecent exposure law regarding breasts:
A person who exposes the person's genitals or pubes to another not the person's spouse, or who commits a sex act in the presence of or view of a third person, commits a serious misdemeanor, if:
1. The person does so to arouse or satisfy the sexual desires of either party; and
2. The person knows or reasonably should know that the act is offensive to the viewer.

Hmmm . . . I don't know about municipal codes, though, so ya might want to check before taking the top off at the Res.

The Onion does it again:
AKRON, OH—Area resident Helen Crandall, 44, was arrested by Akron
police Sunday, charged with conducting an elaborate "sex for security" scam in which she allegedly defrauded husband Russell Crandall out of nearly $230,000 in cash, food, clothing and housing over the past 19 years using periodic offers of sexual intercourse. . . .

According to Agee, undercover agents spotted Crandall's husband handing her $50 in cash at approximately 4 p.m., just 30 minutes after the two had sex. Crandall then drove off in her car, returning home two hours later with five bags of groceries.

"That's when we made the arrest," Agee said. "After tracking her for years, we finally had proof that she was buying all those goods with dirty money."

Read the rest.

A multi-purpose guide dog? But don't forget to practice safe sex.

And to wrap it up, I got myself a summer anthem:

Your Summer Anthem is Hollaback Girl by Gwen Stefani

So I'm ready to attack, gonna lead the pack
Gonna get a touchdown, gonna take you out
That's right, put your pom-poms down, getting everybody fired up

For you, summer is all about fun, friends, and a little girl fighting.

I'm ashamed to say it's already on the ipod.

How could I have forgotten this one: the vibrator as a driving force behind the creation of the small electric motor.

via LLL and the Volokh Conspiracy.

Gas Prices

Tusk and Talon and State 29 examine claims that the recent $2.19 or so for gas prices caused a man to cancel his family's trip to the zoo.

As State 29 pointed out:

It's a 350 mile round trip from Dubuque to Milwaukee. A 2000 Ford Taurus is rated at 29 mpg for highway speeds. That means Mr Clarke would burn just over 12 gallons of gas. If he pays an average of $2.29 a gallon, the trip to Milwaukee and back will cost about $27.50.

But the guy featured in the article had no problem spending $70 per week to commute from Dubuque to ACT in Iowa City. That's a 90-minute trip one way. Even I'm not that nuts, my commute's only half that.

The Tusk and Talon piece really shows the idiocy of the rationale, though:

Now, the story points out that this is a yearly trip. They've done it once a year for the last few years. Let's say that gas cost $1.50 per gallon last year. Over the 12 gallons of gas used, that works out to an extra $9.60 more than it cost last year. If gas was a 1.80 last year, then it works out to all of $4.80 extra. So, we are to believe that the five to ten bucks put this right out of the window of affordability.

Talk about straws breaking camel's backs. If this was the catalyst to call off a family tradition, I'd characterize it more as the dust speck on the back of the gnat that landed on the straw that broke the camel's back.

Yes, gas is expensive. Yes, we should be frantically trying to replace it with a cheap, renewable source of energy. But let's not use fuzzy math to create an unwarranted sob story. That's just stupid.
Apologies to Matt for not being on this one quicker:

Tell importance of rain forest
I think that the editorial "Developments bode well for rain forest," July 10, and the Iowa press in general, fails to help the people of Iowa understand the efforts of a very few to build something, on a nonprofit basis, that will help everyone to be able to know what a rain forest is, why they are important to sustaining life on earth, what life was like in such forests for most of mankind's existence before the development of city/state, and what is now being lost both biologically and culturally from the planet at an unsustainable rate.

It is difficult to understand how people who care about their children, their children's children and beyond could not want to have, in their state, a nonprofit project singularly dedicated to helping their own children see, feel, smell and interact with an aspect of the planet that is critical to the survival of our species. Yet most published articles do not ever explain the what or the why of that which will be built. They concentrate instead on the political issues that seem inevitably to surround every effort to help Iowans recognize their inter-relationship with the natural world beyond Iowa.

As someone who has worked with Ted Townsend on the Great Ape Trust project, I have become familiar with the concerns of those who believe that no one could really think a rain forest will help Iowans learn to protect their own heritage as citizens of the world. Such skeptics therefore conclude that the "real agenda" of the project must be something that is not evident. This is sad for Iowa, as such skeptics might needlessly serve to prevent Iowans being able to benefit greatly from an educational experience not available elsewhere in the world.

Sue Savage-Rumbaugh
Des Moines

What I believe the author fails to see is that the issues concerning rainforest critics are not political, but economic. Of course it would be cool to have a rainforest in Iowa. Are you kidding me?

It would also be awesome to have an ocean with a set of tropical islands, some mountains, and maybe a redwood forest or two.

It would give our kids plenty of experience with other ecosystems and the natural world outside Iowa. I know I'd find my educational and recreational experiences highly enhanced by the ability to mountainbike, hike, scuba, and otherwise acquire the kind of hands-on interaction with these diverse environments. I can also personally guarantee that if we managed to build all these things, we would get tourists. Oh, yeah. We'd get tourists.

Unfortunately, it would cost more than the gross national product of many countries and makes zero sense fiscally-speaking.

Similarly, the money slotted for a fake indoor rainforest in Coralville would be better served elsewhere. The numbers that have been used to support the idea that the fake rainforest will be self-supporting and not a drain on taxpayers are flawed. Others have suggested that it would be more economical to establish a preserve in a real rainforest, and then either flying students down there, or upgrading the interactive capabilities of our school's computers to allow them to virtually link and explore "their" preserve.

The fact it's a really cool opportunity for the kids simply doesn't stand up to the reality that it will also be a financial drain on all of us. The money would be better spent elsewhere - and that has nothing to do with politics.

Thursday, July 14, 2005

Moron of the Year

Some drunk guy gets the brilliant idea to shoot a bottle rocket from his behind. He's not going to be sitting down for a long, long time. And pictures of the whole thing are on the 'net. I'm sure his family must be very proud.

This is one of the stupidest things I've seen in a very, very long time. I'm just glad I didn't get it in as a suit. I don't think I could keep a straight face.

You can thank morons like this for why fireworks are banned in Iowa.

BTW - It's not exactly work safe.

Economic Discrimination?

The Press-Citizen guest opinion today has an interesting view of civil rights theory. Apparently, the author decided he wanted to see one of Riverside's performances for free:
"I thought to myself, there are no boundaries, and we are students -- we're not going to pay for something that can be seen from outside -- and isn't this a public park?"

Of course, it is a public park, there's nothing physically stopping him. At some point, the city could decide to build a fence around the theater to keep people from standing around and catching a free show, but all you need at this point is enough chutzpah to stand there and watch. I'm not sure what being a student has to do with anything but the author's attitude.

Regardless, while he was standing around an usher came over to see if he wanted information on the play:
"Do you need any information about the play?" No, I said -- well, actually I said "Uh, sure" without continuing eye contact. I could feel myself getting angry. He turned to my wife and showed the brochure, how we could get tickets and then opened up the brochure so that we could see the ticket prices.

This apparently upset him:
I realized then that I hadn't seen the barrier correctly -- the barrier wasn't a cord -- that was just a show; the barrier was shame. It was effective, too. . . .

I realized then that . . . we had ended up paying for the bit of the show we saw, but we'd paid not with cash, but the tatters of our dignity. . . .

I wanted to drive back and honk my horn to prove I could -- to disturb their $28 public exercise in economic segregation. I decided to go home to the expensive air conditioning necessary to be where my dignity was intact (being a poor husband from a middle class family). Inside was where I belonged on this night. I wouldn't want to shame my wife by accidently crossing an unseen barrier again -- at least not for tonight. For tonight it was enough that I was reminded that I live in a city of segregation, and that I am on the outside.

So all performances should be free, charging admission is just an insidious form of economic segregation against poor students. In that case, would someone please inform the costumers, the copyright people, and all those retail stores where theaters have to purchase props, curtains, set materials, chairs, and the concessions?

Or we could just raise taxes and have the city pay for the whole thing. . .

I'm Back - Sort of

Lots of things going on and being out of town = light blogging. Bear with me. Actually, I've been doing some work on the blog, but not things you've likely noticed.

Given the proliferation of articles about blogging and professionalism such as this one noticed by Evan Schaeffer, I've been thinking a lot lately about this blog-thingy. Although I'm not on the job market now, there's always a chance I could want to make a change someday, get back into a more courtroom-oriented position. Besides, I'm always subject to depositions or courtroom appearances as a corporate representative. While most of my posts are legal in nature, I can have a rather sarcastic sense of humor which I generally don't engage in while on my best "professional" behavior. Taken out of context, some of the things I say could be, um, interesting. The character photos could also look odd (to say the least) juxtaposed against my usual courtroom suitwear. I'm not silly enough to post anything compromising, but still . . . .

I could wait until the issue comes up, but Googling is a fairly simple process, and those darn caches stick around for a very, very, very, very long time. Waiting until I'm actually on the spot would be waiting too long.

So, I'm splintering off and putting the personal/snarky/potential blackmail items on the side, anonymous-type blog, and reserving this for the more intellectual commentary. I need to think on what to do with the theater stuff, it may end up getting split between the two depending on the subject matter.

The upshot: some of the past posts are disappearing, chronologically starting with the oldest. They're not gone, just saved as drafts for now. They will reappear eventually on the other blog. To do this involves a massive copy-edit-paste effort that's going to run several weeks. It's boring, it eats up my designated blog time, and I have a gagillion things I'd rather be doing. But it's either that or tank the old posts, and post nothing that could haunt me from here on out. Somehow that's just not my style.

Friday, July 08, 2005

Light Blogging

Ya think? I've been in Missouri on a tortuously drawn-out mediation, and I've got to hit the road back today after putting out a half-dozen fires that arose in my absence. If you want the latest law, however, the Iowa Supreme Court has its new opinions up. There's a premises liability case discussing whether a dentist has the duty to inspect his chairs for potential problems (he had a duty to use reasonable care to discover the condition of the chair, but in this case there was no evidence he could have discovered the particular defect that caused the harm), and a venue fight that starts out like this: "Iowa City must be a special place. The plaintiffs in this personal-injury action filed suit in Johnson County, notwithstanding the fact that it hardly had any connection to the case." Yep, it's a special place, alright. Finally, there's a case on proper service of a defendant in a personal injury action. After getting five extensions of the 90-days deadline to serve the defendant, the plaintiff finally got the attorney for the defendant's estate to accept service the day before the last deadline. Unfortunately, the estate's attorney wasn't technically appointed yet, nor had the estate technically opened. In holding that service was improper and the case was dismissed, the Court noted that the plaintiff had five extensions of time, made only half-hearted attempts to serve, and on the last go-around waited until the day before the last deadline had run out. However, it's a dismissal without prejudice, so the plaintiff can refile and start the whole thing over again.

Tuesday, July 05, 2005

Almost Forgot

This tidbit:

Russian astrologer sues NASA over the recent mission to blow a crater on a comet. She claims it messed up her horoscope. She wants $310 million.

While You Were Out . . .

A gagillion things happened while I was distracted by my grandmother's funeral and other family stuff. First off, if you want to know about Sandra Day O'Connor's retirement or potential replacements, I'd follow the Supreme Court Nominations Blog brought to you by SCOTUSblog. Other than that, there's been so much said about it by all the usual suspects, I'll refrain from belaboring the points. That bit out of the way, here's some other stuff I noticed in my speed-scan of the posts while I was out:

Brent from Law and Disorder posted this:

For those of you who have followed the news, 8 year-old Shasta Groene was found in Idaho following her kidnapping and the murders of her mother, her mother's boyfriend, and her 15 year-old brother. Her nine year-old brother, Dylan, is missing and considered dead. Joseph Duncan, a 42 year-old pedophile, was arrested. If you are interested in reading some of Duncan's thoughts about himself and his reflections on his life and crimes (he was arrested at the age of 16 for raping a 14 year old boy), you can read his blog here.


UPDATE: WARNING: According to the Talkleft comments, the archives on the site might carry a virus. I don't know about these things, it didn't set off any whistles on my setup and I've got the latest definitions and everything, but I can't swear it doesn't have a bug. Please be careful.


I've got a few more links to add to that:

The stories on the Groene murder/kidnapping.

Note the last sentences in this article - he had been set free on bail at the time.

The sex offender registry website for Fargo, which lists Joseph E. Duncan III:

Offense Background: On January 24, 1980, in the City of Tacoma, Washington, Joseph E. Duncan, age 16, committed a burglary of a neighbor's home. Duncan stole four handguns and ammunition. That same evening Duncan abducted a 14 year-old boy. The boy had been walking in Duncan's neighborhood. Duncan sexually assaulted the boy two times at gun point. He was arrested shortly after the incident.

Duncan was transferred into adult court at the age of 17. There Duncan pleaded guilty to Rape in the First Degree for the abduction and sexual assault of the 14 year-old boy. Duncan was sentenced to 20 years in prison.

An excerpt from the blog:

I was in prison for over 18 years, since the age of 17. . . . All those years I dreamed of getting out...And getting even. . . . I got out and I got even, but did not get caught. So, I got even again, and again did not get caught. So, I figured, well, I got even twice (actually more, but that's here nor there), even if I'm the only one who knows, so now what? . . . . I met a bunch of really great people . . . who were willing to give me a chance despite my past. They were willing to accept me and be my friend, something that was new for me . . . But the problem was those demons. The ones who "got even" for me. They kept reminding me that if my new "friends" knew about them (and what they, I, had done to even), then so much for their friendship. . . .

Catch that? He's basically teasing us with the knowledge he's done something to "get even" multiple times, something he blames on "the demons," something that would cause him to be shunned. But that's not the scariest stuff. A site called "The Dark Side" points out:

This is where it gets even stranger. Where I have no idea what to make of what I'm seeing. In a blog entry written on January 26th of this year titled, simply, Sasha, Duncan gives us this link -- The Panda Conspiracy.

In the entry written just after that, titled Reborn Laptop, Joseph Duncan says the following about that entry:

I have a new fan, Jerry, who thinks I should make a documentary about my experiences. I think he is right, I should, but not until I am ready I think. Jerry sounds like a really neat guy, he has a great blog (see "Sasha" entry below) that I think I understand. Keep your eyes on the air waves, Jerry, I could be famous sooner than you think, but hopefully not too soon...
The last sentence, written on January 30, 2005, seems ominous now. But what about "Jerry" and the Panda Conspiracy? Frankly, I have no idea. Okay, I looked at that "panda conspiracy" . . . it's very scary. I hope the police track that one.


A prosecutor has been fired for blogging. The post that did it is here.


Friday's Iowa Supreme Court opinions are up. The one that interested me:
A parent called the Marshalltown police department and reported their sixteen-year-old daughter had been having sex with the thirty-one-year-old defendant. In executing a warrant, the police found photographs of young females participating in sex acts with the defendant, and a journal detailing the defendant’s sexual relationships with minor girls. They also found many digital images and videotapes of the defendant engaged in sexual intercourse with minors.

Pursuant to a plea agreement, the defendant entered an Alford plea to one count of lascivious acts with a child and two counts of sexual exploitation of a minor; the State agreed to dismiss the other charges. At the later sentencing hearing, the State introduced the following evidence: the defendant worked as a DJ at a local bowling alley, where he would meet vulnerable young girls. Promising to manage them in modeling or singing careers, he would lure them to his apartment for sex. He kept a journal of his sexual conquests, which revealed that the defendant was fixated on having sex with minor girls. The state used this evidence to argue he was a danger to the community.

The defendant’s trial counsel responded by asserting that, while the charges were serious, “no physical harm per se was done to these young women,” and that the defendant always treated the girls kindly. The attorney urged the court to place the defendant on probation with placement in a halfway house where the defendant could be rehabilitated. The defendant agreed with this recommendation, discussing his elderly mother and the fact he had a child on the way.

The district court didn't follow that recommendation: it noted the defendant’s age, his prior felony conviction, his prior successful probation, his steady employment, his family circumstances, and his undisputed cooperation with the authorities. But in view of the nature of the offenses, the ages of the victims, and the premeditated manner in which the crimes were committed, the court expressed concern for the defendant’s ability to be rehabilitated. In addition, the court noted, the defendant had not shown any remorse: “There’s no apology. There’s no sign of remorse here whatsoever.” In light of these factors, the court sentenced the defendant to consecutive terms of incarceration.

An Alford plea essentially says: "I'm not saying guilty, but I think you have enough evidence to prove me guilty, and I'd have to be an idiot to take my chances at trial, so I'm going to take the plea deal even though I still maintain my innocence." Sometimes it's used for legitimately innocent defendants to avoid heavy sentences when they think there's enough evidence for a wrongful conviction. Other times it's used for defendants who just don't want to admit they did anything wrong. In this case, as they've got video and pictures of him having sex with minors, along with a journal he used to plan these crimes, I'm guessing it's the latter. Ya think?

Anyway, the defendant felt it was a violation of his rights to penalize him for not showing remorse despite allowing him to enter an Alford plea.

Analysis and Holding
A sentencing court may consider the existence or absence of remorse by the defendant in assessing the defendant’s need for rehabilitation, as well as the likelihood that a defendant may reoffend. A trial court must carefully avoid any suggestions in its comments at the sentencing stage that it was taking into account the fact defendant had not pleaded guilty but had put the prosecution to its proof, but this prohibition does not preclude a sentencing court from finding a lack of remorse based on facts other than the defendant’s failure to plead guilty. A defendant’s lack of remorse can be discerned “by any admissible statement made by the defendant pre-trial, at trial, or post-trial,” or by “other competent evidence properly admitted at the sentencing hearing.”

The Court examined the Alford decision, which held that the Constitution permits a defendant to voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime. The Court noted this passage in the Alford decision:
Our holding does not mean that a trial judge must accept every constitutionally valid guilty plea merely because a defendant wishes so to plead. A criminal defendant does not have an absolute right under the Constitution to have his guilty plea accepted by the court, although the States may by statute or otherwise confer such a right. Likewise, the States may bar their courts from accepting guilty pleas from any defendants who assert their innocence.

The Court found nothing in the US Supreme Court’s reasoning in Alford that would require a court to treat a defendant who entered an Alford plea any differently for purposes of sentencing than a defendant who has pled not guilty.

It found that a sentencing court may properly consider a defendant’s lack of remorse when choosing a sentence, so long as the court’s finding is not based on the defendant’s decision to stand trial, even when the defendant professes his innocence by entry of an Alford plea.


The Des Moines Register ran its share of fireworks horror stories, to convince us the state knows best:

Tyson Wells admits that of all the flashbacks he endures, the unlikeliest haunts him the most.

It isn't feeling the skin burn away from his arms after he jumped from a flaming Chevy Blazer ignited by fireworks.

Nor is it hearing the screams of his fiancee, whose once shoulder-length hair was reduced to nothing but smoke.

Nor is it seeing the rear window of the flaming wreck shatter from the heat and knowing that 15-year-old Shunntae Averette was still inside.

. . .

Doug Wells' lip quivers as he talks quickly about that day, mostly because he still feels guilty. He said he had talked Tyson into purchasing three grocery bags and a crate of fireworks in Missouri that morning. Later that night, it was Doug and Tyson Wells who were shooting the fireworks from the car.

"I was just a kid," he said. "I wanted the fireworks, everybody had them, and the neighborhood was literally a war zone."

On Friday, Doug Wells and some relatives of Averette tied balloons and flowers to the pole where she died. Doug Wells wants to remember her, but he doesn't like to hang around to find out whether the neighborhood learned its lesson from the accident. He usually leaves town on the holiday, and neither he nor his brother can bear the sounds of fireworks going off.

Today, Tyson Wells said he feels a range of emotions, topped with guilt and pain. But now, he just wants others to take on a less-painful lesson. Once he gets released from prison, Wells said he wants to talk to children in elementary schools about the dangers of fireworks.

The scars should speak for themselves.

"I can't put anger there. It made me learn. I learned from it," he said. "The only person I can be mad at is myself for playing a silly game. I put a lot of people at risk."

The Register left out a little detail though: this lawsuit by the Wells' against Enterprise Rent-A-Car, claiming it was somehow responsible for this accident. I blogged it earlier here.

Yep. It was the car's fault. Umm-hmmm.


Doonesbury thinks blogging is for angry, semi-employed losers who are too untalented or too lazy to get real jobs in journalism. Because, he argues, if the market really valued what we had to say, we could get someone to pay us for our opinions.

My take: So, then, wouldn't it completely eviscerate your argument if the bloggers in question did have legitimate, full-time jobs in which they were highly paid for their expert opinions. Like, maybe, lawyers . . .?

Nick Stewart of The Last Call responds.