Backseat Lawyer

Casey Anthony Lawsuit Part Two?

2012-01-12T09:30:00.000-08:00

Ye Gads. Where will it end? Minding my own business, surfing the web while doing the laundry and halfway watching a Mentalist rerun, and what do I find?

A breaking news story that Casey Anthony and her attorney, Jose Baez, are threatening to sue because her video diary has been hacked.

You can read about it here at the LA Times.

Oh, yeah, and how was this scoop released to the world? Jose Baez appeared on his buddy Geraldo Rivera's show over on Fox TV.

Look, without a big word count here, a big fat plaintiff's lawsuit is a dream come true for Casey Anthony. Dream. Come. True.

Key will be if there's a deep pocket anywhere to be found to pay for damages based upon copyright infringement, etc. -- and whether or not there will be arguments advanced for indirect liability.

Gameover - The Latest Malware Threat Has the FBI Issuing Public Warnings

2012-01-10T09:00:00.000-08:00

The Federal Bureau of Investigation (FBI) has issued a warning to the American public about a new internet attack they are calling "Gameover."

Read their press release here.

Seems that the evildoers send you an email that looks to be from a very official looking site, informing you that's there has been a problem with a recent financial transaction. You're instructed to follow the link provided in the message for further details.

Wham. If you click on that link, you've allowed the malcious software ("malware") access to your hard drive, where it will spend its time locating and forwarding the user name and passwords for your financial accounts. Yes, like your checking account.

It's serious stuff -- they're taking lotsa bucks from people and it's called "gameover" because by the time that you know you've been hit, they're already finished with you and taking your hard-earned cash.

PC World has a nice article discussing how this latest threat is another version of the Zeus malware from a few years back. Along with it, a discussion of the past year's internet thievery highlights.

Here's the thing. Don't open those attachments connected to emails even if you know the person unless you are expecting them to be sending you a document. And even then, it's nice to have your security software in place to scan the attachment before it's downloaded. (Yahoo! Mail provides this via Norton, nice freebie.)

Drew Peterson and the TV Movie: I Admit It – I’m Gonna Watch Rob Lowe

2012-01-05T14:49:00.000-08:00

I’ve been keeping up with the Drew Peterson case for it seems like years now (hey, it has been years if you count this December 2007 post) and truth be told, part of me is kinda irked that he’s getting to feel so darn important because now, yes, there is a Lifetime TV Movie bearing his name.

You know he loves this. He’s even talking to the media via his attorney.

And I hate that.

However, I am going to watch this movie. From the previews, Rob Lowe looks to be giving an excellent performance and his hair looks perfect for the role, to boot. I’m happy to see Penny from the Big Bang Theory getting a chance to show us that we really do need to know her name as an actress (besides hosting whatever awards show she’s doing).

Maybe this movie will help some battered wife out there get the heck out. At least, that is what I’m going to be telling myself … because this is one guilty pleasure that I’m not going to miss.

Nonlawyer Firm Ownership – I Think It’s Scary and Wrong.

2012-01-03T14:36:00.001-08:00

Read today over at Law.com about a growing trend in having law firms owned by NON-lawyers. Wow.

To read the article, originally published by Corporate Counsel, check out “IBM General Counsel Robert Weber on Nonlawyer Firm Ownership.”

I agree with Mr. Weber.

Perhaps this is the final nail in the coffin of law being a profession and not a business.

Long ago, when all those challenges to solicitation regulation began hitting the U.S. Supreme Court right along with the local and state bars and there was an outcry that “country club solicitation” was unacceptably elitist … and the doors were opened to lawyer advertising and such, well I thought I got it.

Law practices were profit-making enterprises, after all.

We would lose our professional status, our integrity, if this dam broke, I remember some of the elder statesmen (and stateswomen) of the local bar warning during bar cocktail parties. How old school I thought.

Now, I remember what they said. And I think they were right. It makes me sad. And it makes me wonder about our country and our society if lawyers don’t own law firms anymore. Remember Shakespeare’s line about first thing, kill all the lawyers?

It wasn’t because lawyers are shady or slimy or manipulative or greedy. It was because lawyers and the legal system hold the society together like a steel skeleton in a skyscraper.

Where are we going here? Are we killing all the lawyers here with the concept of nonlawyer firm ownership?

Child Abuse in All Parts of Town: When Will This Reality Finally Be Recoginzed?

2011-11-14T09:42:00.001-08:00

Over the past two weeks, there has been a big story out of Texas where a YouTube video was published by the daughter of a Texas judge, showing him beating her (it's graphic and I'm not posting it here, you can read more about this case and all the horrid details here).

Texas Judge William Adams may have had his career destroyed by this video - but he's not going to be charged with child abuse, in all likelihood. Why not? The statute of limitations has expired.

Meanwhile, everyone is talking about the Penn State scandal - where a respected coach has now been charged with child sexual abuse after allegedly preying on young boys for years. You can read the Grand Jury transcript describing what happened to six victims here.

Bigger deal in the Penn State scandal is the cover up: not only did a graduate student who testified that he saw one young boy being sexually abused in the Penn State showers by this coach not go to help the boy, he ends up on the Penn State coaching staff. Oh, and did he tell anyone about what he saw? Yes. He told his dad, and he told head coach Joe Paturno ("JoPa").

So, now the PennState beloved and revered head coach is in a big scandal of his own. And it's rumored that there's another shoe that's going to drop here, the story is bigger than what's being reported even now - and it's a big, big story already.

Here's my point: I know from my years as a volunteer working with kids as well as serving as attorney/guardian ad litem in the local CPS Court that the abuse and neglect cases that get dealt with in the system are almost 100% from the lower (lowest) socioeconomic levels of the community.

Once -- ONCE -- I remember an investigation into child abuse that was in the more affluent part of San Antonio. What happened? Zip.

There are lessons to be learned from the Texas Judge YouTube video and the PennState Scandal. We need to learn them.

Kids are neglected and abused in all parts of town, but it's still a big taboo in our society to consider this kind of evil exists at higher socioeconomic levels. Why? I don't have all the answers here. Social stigma? Peer pressure? Powerful people? Approval? Money?

I don't know all the whys and wherefores. I do know one thing.

This needs to stop and one good thing that can come from these two news stories is a wake up call that child abuse happens everywhere, not just on the other side of the tracks.

Texas Border Shootout Near McAllen - and Other Texas-Mexico Border News This Week

2011-11-09T10:33:00.000-08:00

News today out of the Texas Valley is the latest shootout at the border. This time, it's near McAllen and one Texas rancher told reporters he saw men in helicopters shooting other men down on the ground. Let's hope all that happened on the Mexico side of the Rio Grande.

For local news coverage, read this story in The Monitor.

Also in the news: the border agents at McAllen's Hidalgo-Reynosa International Bridge popped the trunk of a car going from Texas into Mexico because the driver was acting really nervous when they stopped him (that's routine, there on the bridge). Looking down into the trunk, the agents saw a young man in handcuffs with duct tape over his mouth.

The driver has been arrested for kidnapping and the kid (nope, that guy in the trunk wasn't an adult) has been checked out by doctors.

Third story. Last week, down in Mathis (which is pretty close to Corpus Christi and not really a border town at all) on a Farm to Market Road (FM 666 -- spooky, right?) a shiny Lincoln SUV was cruising along when it was spotted by U.S. Border Patrol and signaled to pull over. Choosing instead to speed off, the Lincoln didn't stop -- and the 20 year old Mexican national who was driving didn't stop for a Border Patrol agent who stood in the road trying to flag him down.

The kid, only 20 years old, was seen as a threat to that agent and the agent shot him - the guy in the road shooting the guy behind the wheel, killing him.

Lots of agencies are investigating this incident -- the FBI, Homeland Security, etc. -- and it's not clear what if anything was in the SUV that day.

Child Abuse Caught on YouTube Video of Texas Judge Beating Daughter: Child Abuse Doesn't Just Exist In the Poor Sections of Town

2011-11-02T10:51:00.000-07:00

From my years working as an attorney/guardian ad litem down at the Bexar County CPS Children's Court, I learned that lots of folk are caring and concerned, but they just don't want to think about kids getting abused or neglected so they ... well ... don't.

Which is why Hillary Adams not only videotaping her father, Aransas County Judge at Law William Adams, beating her with a belt, but having the courage to put that video on YouTube is not only courageous but important.

Because no matter how disturbing that video may be -- and yes, it is graphic and disturbing and horrible -- it's important for people to be aware that child abuse is a very real problem in this country.

And it's not just happening in the poor sections of town. It's happening everywhere. Like here, in the home of a prominent local family in Rockport, Texas.

I'm not embedding the video here on my blog, because it is so ugly. While I thought not doing might in some way be a disservice to Hillary Adams, there is the concern of protecting minors from this stuff.

So, go here to see the YouTube video itself.

Mind you, this teenager was born with cerebral palsy and she's in trouble for downloading stuff off the web in violation of copyright laws. Yep, illegal music downloads ... something that may be against the law, true, but something that teenagers are prey to doing all the time.

Right now, this story is breaking. Corpus Christi TV is reporting that a criminal investigation has begun; that the Aransas County Courthouse is getting death threats against Judge Adams, and that Judge Adams has confirmed to the media that he is the man in the video.

This is a very bad thing, what is on this video. However, if Hillary Adams' experiences can serve to enlighten people to the realities of child abuse exisiting in all socioeconomic levels, then good can come of this.

Herman Cain, Politico, and the Sexual Harassment Claims Story Continuum

2011-11-01T15:29:00.000-07:00

Right now, I assume you've heard about the Politico story about two women who settled sexual harassment claims involving Herman Cain, and got some kind of payment in exchange for not pursuing the matter further and for keeping their mouths shut about the whole thing in the future.

It's causing a lot of controversy.

Here's the thing: first of all, I'm betting we are all going to know the gory details sooner or later, confidentiality agreement or not.

Second, after the facts are known, I am not at all sure that this will mark the end of Herman Cain. Some think it will (or that it should).

Maybe it will if the facts are analogous to the case of Judge Samuel Kent. I don't know that it will if the facts are analogous to those of Justice Clarence Thomas.

Justice Thomas survived those televised hearings with Anita Hill’s testimony about the Diet Coke, among other things. Sure, some sordid details.

Didn't matter.

However, it was a different story for federal district judge Samuel Kent once all the facts came to light in his case. There was testimony of years of aggressive sexual misconduct on the part of Judge Kent provided by two of his female employees to the House Judiciary Committee as part of his impeachment hearings (there was a criminal proceeding in Texas, too).

Former Judge Kent sits in home confinement right now, after serving all but three months of his 33 month sentence in a federal jail cell -- far far away from where Justice Thomas sits today up in Washington.

Bottom line: IMHO, if the Cain story is closer to Kent than to Thomas, and that story is revealed to the public, then I agree, he’s a goner. However, right now, with just the Politico story … I don’t think Herman Cain’s campaign is doomed. At all.

DNA in the Amanda Knox Case: Experts Refute DNA Evidence Successfully

2011-10-31T14:24:00.001-07:00

Wired has a great article today detailing the problems found in the DNA evidence presented by the prosecution in the Amanda Knox murder trial, written by John Timmer for Ars Technica and entitled, "Courtroom Science Drama: The Saga of Amanda Knox’s DNA."

One of their experts is Dr. Lawrence Koblinsky of the John Jay College of Criminal Justice in New York. You may have seen him on TV.

Point being that the DNA evidence used in the Knox trial not only served as a major tool for the prosecution to have Amanda Knox found guilty of murder, it was also a key factor used by her defense team on appeal to achieve her release. Arguments post-conviction included not only that Italian law enforcement may have compromised the DNA evidence during their investigation, but also that DNA evidence found on the murder weapon (a knife) was miniscule and irrevocably tainted in the attempt to amplify that tiny amount into something bigger and therefore, easier to analyze.

My prediction: the Amanda Knox case will serve to publicize the weaknesses in DNA evidence and more criminal defense attorneys - both at trial and on appeal - not only will spend more time and effort challenging DNA evidence, the likelihood is increasing that their efforts will be worthwhile.

dna, evidence, trial, technology, crime

DNA Evidence Can Be Faked - So Why Do We Continue to Consider DNA Infallible?

2011-10-14T13:15:00.001-07:00

DNA is easier to fake than fingerprints at a crime scene, according to scientific experts, and this is something that's been public knowledge for several years now. Read the 2009 article in the New York Times, for example; written by Andrew Pollack, entitled "DNA Evidence Can Be Fabricated, Scientists Show," it's got lots of details. Or go peruse the research paper written by Dr. Daniel Frumkin in Genetics, a source mentioned by Pollack in his coverage.

Why Don't We Know That DNA Evidence Is Not 100% Trustworthy?

No one talks about this much, and I wonder how many people really know that we cannot trust DNA just because they do it on TV. Heck, in one Law and Order: Special Victims Unit episode, even the TV cops found out that the DNA in their case had been faked. (If you're interested in watching, that was episode 9 of season 11, entitled "Perverted." Watch it here.)

Faking someone's DNA is easy to do, and it doesn't take all that much skill or education. Apparently, all an evildoer would need is the saliva sample of one person - which they could get off a tossed coffee cup or drinking straw or fork or spoon (well, you get the idea), or from a hair sample, again something that could be pulled from the trash. Then, through a process called "whole genome amplification," the evildoer can create fake DNA samples of that person which evildoers, being what they are - evil doing - could use to cause all sorts of mayhem.

But that's not the whole story. It's even easier that this for the sinister scientist who wants to fake someone's DNA. If they don't have that tossed coffee cup or hair from a comb, no problem. DNA can also be faked if they can get access to the person's DNA profile, stored somewhere in a computer database. They can cook up some fake DNA using the info on the database as their recipe.

So, why aren't we being told about this? We all need to know that DNA isn't infallible, that we shouldn't automatically trust DNA evidence.

Why? Well, I'm just as concerned about overzealous prosecutors as I am about outlaws taking advantage of this opportunity. Seems to me that it is only by greater public awareness that this can happen (and that questionable DNA evidence can be tested to see if it has been faked) that an evildoer trying to plant DNA evidence for sinister purposes can be thwarted.

Troy Davis and Judge Moore: What Was the Evidence in this Case?

2011-10-10T09:25:00.000-07:00

Troy Davis was executed by the State of Georgia, despite all the controversy surrounding whether or not this man was innocent of killing a police officer, long ago, in the parking lot of a fast food restaurant. Since the execution, I've read all sorts of stuff on the web about this case - from Ann Coulter to Alec Baldwin - and it's left me wondering: okay, what WAS the evidence in this case?

Earlier, I posted what I understood to be accurate - that the majority of the eyewitnesses had recanted and that there was no physical evidence presented by the prosecution at the trial where Troy Davis was convicted. Was this true? (No.)

Also, I wrote that the United States Supreme Court had done something very unusual when they sent the case down for an evidentiary hearing before a district court judge (Judge William Moore of the United States District Court for the Southern District of Georgia, Savannah Division). As I recall, this was the first time that the High Court had done this in around 50 years. The federal trial court judge would serve as a fact-finder, grading the papers of that Georgia jury.

Interesting - a single federal judge given the opportunity to overturn a state jury. Think about that, it's a big deal.

So, after pondering all this, I went to the very long opinion that Judge Moore issued in that unusual hearing, and I have posted it at Google Docs for anyone who wants to read it (it's almost 150 pages, and it appears in two parts):

Judge Moore's Opinion re Troy Davis Part One;
Judge Moore's Opinion re Troy Davis Part Two.

The evidence that was considered in the Troy Davis case is presented at the beginning of this opinion. After that, an analysis of that evidence under a "clear and convincing" standard is given; a standard not as stringent as that of "beyond a reasonable doubt," as discussed on page 80 of the Pattern Jury Instructions of the Eleventh Circuit. (Judge Moore spends significant word count explaining the burden of proof he believes applies in his determinations.)

Bottom line, it is this opinion that I think everyone should be reading before they consider the words of political commentators - Judge Moore obviously wrote this opinion with the expectation that many eyes would be reading and reviewing his work.

Was there physical evidence? He discusses shell casings found at the scene of the crime.
Why wasn't he swayed by the eyewitnesses who recanted? He goes into detail, witness by witness, regarding what they said then and now.

Did the State of Georgia execute an innocent man? I don't know. I do know that I learned something from this opinion and I wish I had read it, in all its details, long ago instead of reading a lot of the other stuff out there on this case.

Institute of Medicine Report Sketches Basic Insurance Package: Can Americans Afford $458/Month in Individual Premiums?

2011-10-06T17:14:00.001-07:00

Media reports, like the article published today by the Associated Press entitled "Feds to design health insurance for the masses," are giving various takes on the new 300-page report released by the Institute of Medicine.

You can read the full report online, for free, at the Institute of Medicine's website (or buy a copy for yourself). The report, Essential Health Benefits" Balancing Coverage and Costs (2011), has been compiled by independent experts with the goal of providing a framework for the Obama Administration on how to create a basic benefits package that covers "essentials" and yet remains affordable.

The cost? At the low end, they are talking $5500 (high end is $7000) in annual premiums for individual coverage. Take the lowest figure, $5500, divide it by 12, and you've got a monthly premium (for an individual, not a family) of $458.00.

This week, there was another big news story: 48.5% of the American population received some type of help from the federal government in the months of January through March 2010 according to the latest Census. That's right at HALF of the American households, a year and a half ago.

CNN points out that 46,000,000 Americans live below the poverty line and that employment is right around 9% right now. CNN's Jack Cafferty writes, "Here’s my question to you: How long can we go on with almost half of Americans living in households that get government assistance?"

So here's what I'm wondering: Can Americans afford $458/individual premium added to their monthly budgets each month? (No, according to these other numbers, Americans cannot make this payment.)

Before we even get to the constitutional issues or the political finger-pointing, shouldn't this be the first question?

Twitter, Facebook, Google Information Share With Government As Well As Advertisers: Just So You Know

2011-10-02T09:38:00.001-07:00

In a recent article written by Georgina Prodhan for Reuters, "Internet firms co-opted for surveillance: experts," there's lots of information regarding the number of eyes that are reading and accessing e-mail and online social media sites for their own reasons. Seems that at the Internet Governance Forum held in Nairobi last month, the growing interest of law enforcement in monitoring personal information on the web was discussed.

Today in America, there is no cohesive federal law that protects information that is placed upon the Internet in the same way that federal laws protect things like telephone conversations, where longstanding privacy regulations govern wire-tapping access. What you say on your phone is protected; type it into Twitter, and it's not. Same sentence, two different venues. And your favorite internet sites keep all your stuff going back at least two years.

Privacy really took a back seat after 9-11. The Patriot Act (amended in 2006) not only expanded the types of records available to government scrutiny, but it made it a lot faster and easier for the government to jump privacy hurdles with things like subpoenas and search warrants. For more on the Patriot Act, check out information collected by the Electronic Frontier Foundation and the Electronic Privacy Information Center.

The Electronic Communications Privacy Act (ECPA) (18 USC § 2511) is on the books, but it's a swiss cheese statute, filled with exceptions to privacy and still very much open to interpretation by the various federal appellate courts. Check out the discussion of its weaknesses at PrivacyRights.Org, where they point out such things as:

Your Internet Service Provider (think Time Warner or AT&T) can turn over private emails to the government if one of the parties to the emails gives their okay, and the other party does not get notice of this. Sender or receiver: if either one gives the ISP their okey dokey on the release of the communications, then the emails will be disclosed.
Your employer is free to read whatever is found in the company e-mail. Send from your business email, you do not have an expectation of privacy.

Law Enforcement Using Internet Intel More and More: It's Incredibly Cheap and Easy to Monitor Google, Yahoo, Facebook, etc.

According to the Reuters article, there's a cost benefit here,too. Seems that a police officer can sit at his/her desk and monitor Microsoft information as well as Facebook data at no cost (since these two powerhouses will provide their information about an individual for free, upon request). It's extremely cheap to get the info from Google, too: Google is reportedly charging $25 (Yahoo, $20).

Sounds good if they are looking for child pornography, illegal gambling sites, or terrorist activities right? However, what if they're not?

Protecting Your Privacy on the Internet Is Your Job: Privacy Laws Do Not Exist to Do This For You

Can you -- or should you -- consider that anything you put out there on the web is private? Maybe, maybe not. For suggestions on how to protect yourself on the web, consider the suggestions made at PrivacyRights.org in their Fact Sheet 18: Online Privacy - Using the Internet Safely. Here, suggestions are given on protecting yourself and your family in your electronic mail communications, as well as internet browsing, online banking, online shopping and bill pay, as well as social media communications (Twitter, Facebook, etc.).

Image: By Joyson Noel at en.wikipedia [Public domain], via Wikimedia Commons this is a photograph taken by an agent for the Federal Bureau of Investigation of Albanian-American mobster, Alex Rudaj,outside Jimbo's Bar in Astoria, Queens, New York, on April 15, 2003.

Psalm 46: Read what President Obama Recited

2011-09-12T12:47:00.000-07:00

President Obama read from the Psalms as part of the ten year commemoration of 9-11 this week: holy scripture to Jew, Muslim, and Christian alike. Here it is from my Bible (I took out the numbering for easier reading, it's just in there for organizational purposes).

Psalm 46 (Eastern Standard Version)(listen to it online)

Title: God Is Our Fortress

Directions: To the choirmaster. Of the Sons of Korah. According to Alamoth.1 A Song.

God is our refuge and strength,a very present help in trouble. Therefore we will not fear though the earth gives way,though the mountains be moved into the heart of the sea, though its waters roar and foam,though the mountains tremble at its swelling. Selah

There is a river whose streams make glad the city of God,the holy habitation of the Most High. God is in the midst of her; she shall not be moved;God will help her when morning dawns. The nations rage, the kingdoms totter;he utters his voice, the earth melts. The Lord of hosts is with us;the God of Jacob is our fortress. Selah

Come, behold the works of the Lord,how he has brought desolations on the earth. He makes wars cease to the end of the earth;he breaks the bow and shatters the spear;the burns the chariots with fire. “Be still, and know that I am God. I will be exalted among the nations,I will be exalted in the earth!” The Lord of hosts is with us;the God of Jacob is our fortress. Selah

Read the Juror Questionaire in Dr. Conrad Murray Criminal Trial Re Death of Michael Jackson

2011-09-10T13:27:00.000-07:00

Looks like we've got another case where there may be so much media coverage that the danger of a trial by media exists. Celebrity sites are following this one, and misinformation is being provided (for example, there is no charge in this criminal trial of the civil tort of gross negligence).

Whether or not Dr. Conrad Murray committed a crime in the death of Michael Jackson is going to trial over in California this month, and right now the parties and the judge are involved in the jury selection process.

Like the Casey Anthony trial earlier this year, state prosecutors will have the burden of establishing beyond a reasonable doubt; here, the key issue is whether or not the doctor is criminally responsible for the death of Michael Jackson. Dr. Murray is charged under California state law with involuntary manslaughter and he could face 4 years in prison and the loss of his medical license if convicted. (Read the complaint in full online here.)

For more information on the crime of "involuntary manslaughter" as it will be given to the jury in the formal jury instructions, go here for details and also consider the following:

However, evidence of imperfect self-defense may support a finding of involuntary manslaughter, where the evidence demonstrates the absence of (as opposed to the negation of) the elements of malice. (People v. Blakeley (2000) 23 Cal.4th 82, 91 [96 Cal.Rptr.2d 451, 999 P.2d 675] [discussing dissenting opinion of Mosk, J.].) In such a situation, the court should also instruct the jury in involuntary manslaughter.

Given the outcome of the Anthony case, and the scrutiny that those jurors still undergo today both in the international media and from the American public at large, it's no surprise that the California case has focused upon who jury selection -- however, this questionnaire is considered by many to be unusually piercing in its investigation into the individuals that will take on the role of juror. Don't expect to see this kind of thing the next time that you're called for jury duty.

Who would have created this questionnaire? It would be approved by the judge after conferring with the prosecution and defense. They, in turn, will probably have conferred with their jury selection consultants on the issues to be addressed in the questioning. It's 30 pages long and filled with lots and lots of interesting queries (read it here):

Click on Image for Full Text

Great Overview of the Foreclosure Fraud Mess by Florida Atty General's Office

2011-09-08T16:40:00.000-07:00

A detailed spreadsheet that gives a great overview of how all this foreclosure fraud mess happened, with concrete examples, was prepared by June M. Clarkson, Theresa B. Edwards, and Rene D. Harrod of the Economic Crimes Division of the Office of the Florida Attorney General. It's being used in court cases in other states, successfully, in foreclosure fraud lawsuits.

This visual report, “Unfair, Deceptive, and Unconscionable Acts in Foreclosure Cases,” is easy enough to follow even without any accompanying discussion and I particularly like it for the screenshots it provides of the actual documents involved. For example, you can see how there were so many different handwriting signatures for "Linda Green," because they give you screenshots of several of them.

It's really quite impressive, and all the more interesting given that two of these assistant attorneys general were later fired from their jobs. Of course, there's talk that these firings were politically motivated and right now, there's an investigation into their being let go.

Meanwhile, here's their report for you to consider for yourself:

Click on the image to review the full document.

Documentary to Watch -Overdose: The Next Financial Crisis

2011-09-07T13:40:00.000-07:00

This documentary is around 45 minutes long, and it's unsettling. However, I think it's worth your time to watch.

Full Text of Balanced Budget Amendment Bill - S.J.Res. 10 With Latest Updates: House Votes Next Week

2011-07-12T05:42:00.000-07:00

Below is the full text of the bill proposing that the federal government have a balanced budget. Maybe you, like me, think it's a good idea to read this thing.

What is a balanced budget amendment?

Balanced budget amendments are not new, a federal version has been debated for years -- and all but three of the states have their own version of a balanced budget requirement, imposed either by constitution or by statute (the three that do not are Wyoming, North Dakota, and Alaska according to the Austin American Statesman).

In sum, these balanced budget laws (or amendments) state that the government cannot spend more than it takes in; in this proposal, each year the President would have to provide a proposed budget to Congress (who has the purse-strings) that demonstrated no plan for the feds to spend more than the federal income.

The 2011 Balanced Budget Amendment - Details

For more information on the current proposed bill for a Balanced Budget Amendment to the U.S. Constitution, read through the links provided here by Thomas.gov.

Note that this proposal not only seeks a Balanced Budget but it also establishes caps on spending at 18% Gross Domestic Product (GDP) and it fights against an increase in federal taxes by requiring an overwhelming Congressional vote approving any tax hike.

Shown below is the version of the bill that was accurate as of the date of this post (you can download a pdf from the Government Printing Office here).

The House of Representatives will vote on this bill during the week of July 18, 2011. If the House approves this bill, then the next step will be to send the proposed amendment to the 50 states for their ratification:

_____________________________________________ 112th CONGRESS 1st Session S. J. RES. 10
Proposing an amendment to the Constitution of the United States relative to balancing the budget.
IN THE SENATE OF THE UNITED STATES

March 31, 2011

Mr. HATCH (for himself, Mr. LEE, Mr. CORNYN, Mr. KYL, Mr. MCCONNELL, Mr. TOOMEY, Ms. SNOWE, Mr. RISCH, Mr. RUBIO, Mr. DEMINT, Mr. PAUL, Mr. VITTER, Mr. ENZI, Mr. KIRK, Mr. THUNE, Mr. ALEXANDER, Mr. INHOFE, Mr. CRAPO, Mr. BURR, Mr. BARRASSO, Mr. COBURN, Mr. MORAN, Mr. LUGAR, Mrs. HUTCHISON, Mr. ISAKSON, Mr. BROWN of Massachusetts, Mr.
JOHNSON of Wisconsin, Mr. GRAHAM, Mr. GRASSLEY, Mr. SHELBY, Mr. SESSIONS, Mr. MCCAIN, Mr. BOOZMAN, Mr. ROBERTS, Ms. COLLINS, Mr. HOEVEN, Mr. CHAMBLISS, Ms. AYOTTE, Mr. BLUNT, Mr. COATS, Mr. COCHRAN, Mr. CORKER, Mr. ENSIGN, Mr. JOHANNS, Ms. MURKOWSKI, Mr. PORTMAN, and Mr. WICKER) introduced the following joint resolution which was referred to the Committee on the Judiciary

JOINT RESOLUTION
Proposing an amendment to the Constitution of the United States relative to balancing the budget.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein),

`Article--

`Section 1. Total outlays for any fiscal year shall not exceed total receipts for that fiscal year, unless two-thirds of the duly chosen and sworn Members of each House of Congress shall provide by law for a specific excess of outlays over receipts by a roll call vote.

`Section 2. Total outlays for any fiscal year shall not exceed 18 percent of the gross domestic product of the United States for the calendar year ending before the beginning of such fiscal year, unless two-thirds of the duly chosen and sworn Members of each House of Congress shall provide by law for a specific amount in excess of such 18 percent by a roll call vote.

`Section 3. Prior to each fiscal year, the President shall transmit to the Congress a proposed budget for the United States Government for that fiscal year in which--

`(1) total outlays do not exceed total receipts; and

`(2) total outlays do not exceed 18 percent of the gross domestic product of the United States for the calendar year ending before the beginning of such fiscal year.

`Section 4. Any bill that imposes a new tax or increases the statutory rate of any tax or the aggregate amount of revenue may pass only by a two-thirds majority of the duly chosen and sworn Members of each House of Congress by a roll call vote. For the purpose of determining any increase in revenue under this section, there shall be excluded any increase resulting from the lowering of the statutory rate of any tax.

`Section 5. The limit on the debt of the United States shall not be increased, unless three-fifths of the duly chosen and sworn Members of each House of Congress shall provide for such an increase by a roll call vote.

`Section 6. The Congress may waive the provisions of sections 1, 2, 3, and 5 of this article for any fiscal year in which a declaration of war against a nation-state is in effect and in which a majority of the duly chosen and sworn Members of each House of Congress shall provide for a specific excess by a roll call vote.

`Section 7. The Congress may waive the provisions of sections 1, 2, 3, and 5 of this article in any fiscal year in which the United States is engaged in a military conflict that causes an imminent and serious military threat to national security and is so declared by three-fifths of the duly chosen and sworn Members of each House of Congress by a roll call vote. Such suspension must identify and be limited to the specific excess of outlays for that fiscal year made necessary by the identified military conflict.

`Section 8. No court of the United States or of any State shall order any increase in revenue to enforce this article.

`Section 9. Total receipts shall include all receipts of the United States Government except those derived from borrowing. Total outlays shall include all outlays of the United States Government except those for repayment of debt principal.

`Section 10. The Congress shall have power to enforce and implement this article by appropriate legislation, which may rely on estimates of outlays, receipts, and gross domestic product.

`Section 11. This article shall take effect beginning with the fifth fiscal year beginning after its ratification.'.

Interview of Psychologist Who Examined Casey Anthony for Mental Illness Including Personality Disorders

2011-07-11T12:05:00.000-07:00

In tandem with today's Guest Post, thought I'd add this short post, too, as it regarding the same topic: questions regarding psychological issues that have arisen during the Casey Anthony trial coverage.

Here is the link to the five minute interview by Nancy Grace of William Weitz Ph.D. who was brought in by the defense back in 2009 to evaluate Casey Anthony and his discussion as a psychologist of those findings, including sociopathy as well as various personality disorders:

http://debsnews.com/nancygrace/UiY-tJtYrqSHafi0

Psych Today's Dr. Karyl McBride Answers Your Casey Anthony Trial Questions

2011-07-11T09:36:00.000-07:00

As promised, guest blogger Dr. Karyl McBride answers your questions today regarding some of the psychological issues that have arisen during the course of the Casey Anthony trial.

Dr. McBride is the author of Will I Ever Be Good Enough? Healing the Daughters of Narcissistic Mothers, published by Simon and Schuster and available as either a paperback or e-book. She will be hosting her annual workshop (for therapists and narcissist survivors) this fall at the Inverness Hotel in Denver, Colorado on October 7 - 9, 2011 (details here), the "Healing the Daughters of Narcissistic Mothers Workshop."

You may listen to her recent interviews regarding the Casey Anthony trial at her website, which include (1) June 9, 2011 - HLN's "In Session" with Mike Galanos and (2) June 20, 2011 - HLN's "Issues With Jane Velez Mitchell."

For more details on Dr. McBride's background and expertise, please review the biographic details provided in my earlier post. What follows are Dr. McBride's answers to the questions sent to her, which were culled from both Backseat Lawyer comments as well as emails that I received regarding psychological questions/concerns.

Question: In families with a narcissist, what other mental illnesses are found - aren’t they all ill from living with the narcissist and being controlled by him?

Dr. McBride: Narcissistic families are a dysfunction all to themselves. There are unique and insidious factors to the family that looks good on the outside, but has emotionally harming behaviors and reactions happening on the inside, in the dark, and behind closed doors. The cornerstone to maternal narcissism is the inability to love unconditionally and a lack of empathy.

Narcissistic parents do not tune in to the emotional world of their children. Instead, everything is all about them...the parents. The children are there to meet the needs of the parents. There are many ramifications to the children... so many, I could write a book about it! Ha! See book details at www.nevergoodenough.com . The most damaging to the children is growing up with nagging self doubt and a feeling of not being good enough.

Question: What is the difference between a narcissist and a sociopath and a psychopath?

Dr. McBride: Not all narcissists are sociopaths or psychopaths of course. But most sociopaths and psychopaths are also narcissists. How confusing is that, eh? Psychopaths can't form human attachment, have a lack of empathy, masked by an inability to appear normal. They have no remorse and these are the people with a criminal mind who do bad...really bad things.

Sociopaths are people with social behavior that is extremely abnormal and they are interested only in their own personal needs and desires without concern for the effects of their behavior on others. They can also be criminals.

There is an interaction between genetic predisposition and environmental factors much like addiction in sociopaths and psychopaths, but it is thought that psychopaths leans more towards heredity while sociopaths lean more towards environment.

I don't think there is enough research out there to confirm. The debate continues on nature versus nurture. What makes it even more confusing is that trauma effects the brain.

Question: Is being a liar or a gambler sometimes a born trait?

Dr. McBride: Addictive personalities have a predisposition but turning into a gambler is mostly related to environmental factors. Lying is a learned behavior in my opinion. Can you imagine looking at a new born baby and knowing that this precious little one is sure to be a liar. It doesn't make much sense to me.

Question: How can a mother not cry about her missing child but go bar hopping and being in “Hot Body” contests?

Dr. McBride: Oh, talking about Casey Anthony here? I do not believe we know all the details of this case. See my Psychology Today post on the family dynamics theories. I always worried that Casey's behaviors were trauma related and best explained in that way. I still wonder why the litigation did not bring forth more psychological testimony or assessment.

Question: I would like to know if it does not seem strange that there has never been any comments from friends or relatives of the Anthony family... except Casey's fly by night 'friends' who we've seen in court. Why no one else is sitting in the courtroom with George and Cindy for support. Where are the siblings of George and Cindy? Or neighbors or parents of Lee or Casey's childhood friends, teachers – anyone who can say something about what life was like in the Anthony household?

Dr. McBride: This is such an interesting point! In narcissistic families, there are few friends. Narcissists don't make emotional connections with people. We don't know if this family had narcissistic dynamics, but if there were, this all makes a whole lot of sense to me.

Additionally, the family members of narcissistic families are rarely close and connected. They were not taught to be close, but rather pitted against each other in competitive ways. Ughhh!

Question: Do narcissists kill? Isn’t that what makes the difference between a narcissist and a sociopath like Ted Bundy?

Dr. McBride: Many people have narcissistic traits and we could never say that narcissists kill.

Question: Is Lee Anthony the scapegoat in this dysfunctional family?

Dr. McBride: Again, good question and thought. We don't know anything for sure. But, with the dynamics we saw and then looking at narcissistic family dynamics, it looked that way.

Question: What about Cindy Anthony? No one talks about her but she lies too and there’s something not right about her. It can’t be just one mentally ill person in that house. What if Cindy is a maternal narcissist?

Dr. McBride: I don't want to diagnose anyone without knowing them. We can only do hypotheticals. But the mother-daughter strained relationship makes sense if we have a narcissistic family and an incest family. The engulfing behavior of the mom in this family makes more sense too.

Question: How do we know if we are working with a narcissist? I think I know someone just like Casey!

Dr. McBride: A narcissist is someone who exploits others, has no empathy or interest in others, is all about themselves, can be grandiose, haughty, arrogant, has a sense of entitlement and is jealous of others or thinks others are jealous of them. I think one way to tell is if they are able to give and take and do reciprocity or if it is always about them when they invest in something. The biggest key, however, is that lack of empathy.

Question: Can narcissists change? Could Casey Anthony have been helped if she was in therapy long ago or she unreachable?

Dr. McBride: We don't know if Casey was or is a narcissist. Narcissism is a spectrum disorder and one can have traits without being a full-blown NPD. I think it is very difficult to assess what went wrong in this case and with Casey.

I can make a case for the defense though when I look at all the dynamics. If so, then Casey does not look like she appeared on television. Hard to explain, but if you read the blog post on Psychology Today it will make more sense.

I don't believe in diagnosing people we don't know, so please understand that my postings here and on my blog are using the case to educate about dysfunctional families and not to take a stance or diagnose this family. There is much here that we will never know or understand because there are too many unknowns, secrets and lies.

Casey Anthony Book Deal: With Her Deposition in the Zenaida Gonzalez Case, How Much Is Left to Sell to a Publisher?

2011-07-09T13:32:00.000-07:00

The real Zeniada Gonzalez filed her civil lawsuit against Casey Anthony back in September 2008. Last week, Ms. Gonzalez's lawyer, John Morgan, lost no time after the infamous Not Guilty verdict in the murder trial -- he promptly served Casey Anthony with a subpoena to have her deposition taken in Zeniada's civil suit.

Unless there is an agreed-upon delay, the deposition is scheduled to take place in Mr. Morgan's Orlando law offices on July 19, 2011.

Zenaida is suing for defamation, seeking damages for the harm she has experienced after her name was used as "Zanny the Nanny" - something that Casey Anthony admitted in her criminal case was a total fabrication.

That deposition will be transcribed by a court reporter. Maybe it will be videotaped. Casey Anthony will be sworn in - just as if she was taking the witness stand in a courtroom - and everything she says will be part of this civil defamation suit.

So, here's my question: with that big fat deposition coming down, how much will be left for any book deal? The deposition will be public record, it's the taking of testimony in a court case, and unless there's a gag order it will only be a matter of time till the depo will be online for anyone interested to read.

Add that to the fact that double jeopardy has attached, and Casey Anthony cannot take the Fifth on any question that might tend to incriminate her in Caylee's death (she cannot be tried twice for that crime), and that deposition testimony should be pretty interesting.

Suggestion: if it's acceptable under Florida law and Florida ethical rules, as well as the court reporter (in Texas, court reporters are paid for extra copies), maybe Zenaida would consider placing that deposition transcript for a small price on Amazon - and let the proceeds go to an appropriate charity that would honor Caylee. If that's okay to the Court, the Bar, etc. and I don't know that it is (maybe it could be if there was a Court Order in place that gave the okey-dokey).

I'm not sure that this flies, but I like the idea of sales of Casey's words going to honoring Caylee Marie.

Child Advocates Are Needed - Would You Be a Good Advocate for a Child Involved in an Abuse or Neglect Case?

2011-07-07T12:51:00.000-07:00

Child Advocates are trained volunteers appointed by the courts to champion children who have been removed from their parents' home because of allegations of abuse and/or neglect.

These kids range in age from toddlers to teens about to "age out" of the system and they are placed in any number of caretaking locations: in group homes, in foster care, in orphanages, in special treatment facilities. Each has his or her own unique history, personality, etc. - but I haven't met a child in a CPS case yet that wasn't scared, worried, and in need of loving support.

Child Advocates visit the kids, building rapport and relationship, bonding with them. They also attend meetings with the attorneys, case workers, therapists, parents, and the like - and they appear in court at the counsel table (here in Bexar County, CASA volunteers set in the chair next to the child's attorney(s)), giving their own reports and recommendations to the judge.

It is a proactive, important job and there aren't enough people taking on this responsibility. A good Child Advocate can really change a kid's life -- I've seen it happen on more than one occasion. Child Advocates make a difference.

I think that some of the readers here on Backseat Lawyer have left comments that suggest they would be great Child Advocates -- and that they might just be interested in getting involved. If so, I leave these links with you for more information and please feel free to contact me if you have any questions:

National CASA
CASA - San Antonio

Casey Anthony - What Happens Now?

2011-07-05T15:51:00.000-07:00

Well, the Casey Anthony jury verdict was returned today and yes, I'm surprised that the jury found Not Guilty on all the felonies. From the news coverage, I'm right there with the majority of the country: there's even media alerts on the large, growing number of celebrities who are tweeting their shock at this result.

A copy of the complete jury charge is here (not the verdict, I'm sure that will be uploaded to the web shortly). It's this that the jury had with them in the jury room to guide them in their decision-making, together with the exhibits and their recollection or notes of witness testimony.

Reading through the counts within that charge, I understand that the jurors did not find a sufficient connection in the "act" or "criminal act" to find beyond a reasonable doubt that Casey Anthony was guilty of that particular crime.   And I understand that their perspective is different from the judge, the defense, the prosecutor (as I've posted about earlier).

The jury did the right thing: if they did not think that the State of Florida provided evidence beyond a reasonable doubt that there was guilt, then "not guilty" was where they should have come down.

It's not like the jury voted that she is innocent of her daughter's death. Not guilty and innocent are two different things.

In my view, this didn't have anything to do with Jose Baez's antics but dealt solely with the prosecution's evidence, which was almost entirely circumstantial in its attempts to connect the mother to the crime. No DNA, etc. was a big problem for them - apparently, an insurmountable one.

I'm sure that we'll hear interviews and probably read books written by some of these jurors, giving us more details than we really need on the why and the how of their deliberations and their decision.   I imagine some of those deals are being ironed out while I type this.

Speaking of book deals and things, I imagine that Casey Anthony will financially benefit from these events. I imagine that Jose Baez and his team are making deals for books and movies and all sorts of things. Maybe Cindy is going to write a book, too. Heck, maybe River Cruz will be on Amazon in time for Christmas.

What I'm interested in watching now is how the public is reacting to this surprise verdict, and how disrespect has grown for our system of justice; how a trial by media does impact a case; and I'm also concerned about some fool seeking vengeance on behalf of Caylee - because I fear that there are those out there that are that incensed that Casey Anthony will walk free.

Finally, today reminds me of one of the reasons that I stopped working the Children's Court. Without revealing details, I can share that I was involved in a case where a prostitute had her children taken from her by CPS and she fought long and hard to get those kids back. She earned the respect of everyone in the case, and we all believed that she had taken this life event as an opportunity to change her life: to have an apartment with ivy growing in the kitchen window, a regular job, her kids in school, her own car and a normal family life.

Her family was reunited and the case was closed. Everyone - the attorneys, the therapists, the ad litems, the case workers, the judge - counted this case as a victory. Victories aren't seen too often in Children's Court. We all took this case to heart because so many of the CPS cases are so sad - we all needed this to remember that sometimes things do work out well.

Then, about a year later, we were told that this woman had been arrested in another state, high on drugs and she had almost killed her youngest child. She didn't fight the charges, and she'll spend the rest of her days behind bars.

Today, I think about that case and that pretty little girl who was about the same age as Caylee when she was almost killed by her mother and I remember the lesson from that case.

It's not always over when the judge closes the case. The justice system isn't omnipotent nor omnipresent and its power is intentionally limited. Life continues after the lawsuit is done.

I worry that this tragedy isn't over with, and I hope and pray that I'm wrong. It just seems in my gut that there's another shoe that's going to drop, and I'm hoping this is just my personal reaction based upon that old CPS case.

Is Casey Anthony Crazy? The Legal Issue of Mental Incompetency and the Defense of Insanity

2011-06-27T10:29:00.000-07:00

The Casey Anthony trial continues to do its excellent job of educating the American public on nuances in the legalities that apply to us all - and of which many citizens are not aware. This weekend, there was the review of Casey Anthony's mental condition after the defense moved on Saturday morning for psychological evaluations of their client.

Seems that two forensic psychologists and one psychiatrist spent time with Casey Anthony over the weekend, and this morning, based upon their opinions, the trial continues. She wasn't found mentally incompetent by the experts. Sure enough, all the talking heads are spending the day discussing incompetency - not only the circumstances of why and when this happened in the Casey Anthony trial, as well as what "incompetency" means overall.

Incompetency is an Issue Many of Us With Face at Some Point

It's difficult for the law to draw lines on where an individual has a mental illness or deficiency sufficient for the courts to intervene in their freedoms. And judges are asked to makes these calls every day - legal incompetency is an issue that millions of Americans have had to face - either from themselves, or for loved ones.

Personally, I've seen the difficulties of a probate judge determining whether or not an elderly person needs to have a guardian of the person or a guardian of their estate, or both -- particularly when that elder does not want someone else making personal care decisions or taking control over their finances. Legally incompetent ruling, and that elder loses their control over their lives and/or their money.

I've also seen the state seeking to terminate the parental rights of a parent for their child because the parent is mentally incapable of caring for a child. Testing is done, opinions are given and then, no matter how much that parent loves their baby, their right to parent is legally ended.

And, yes the government can do that. Being a mother or father isn't an absolute right: the government can take your child from you.

Hopefully, there's a family member who steps in, taking on the role of parent. If not, that child goes into foster care because the court has found that it's in the best interests of that child to be with foster parent caretakers than their mentally incompetent bio parent.

Being mentally unable at a sufficient level to take care of yourself or another person usually means that it's obvious. Elderly parents with dementia need guardianships. Paranoid schizophrenic mothers may need help to care for their babies.

Sometimes, it's a close call and there may be an expert fight in a courtroom, because experts disagree on the competency of someone. Those are the hard cases for the judges, when the experts don't jive on the psychological status of the individual.

So, if Casey Anthony seems strange because she is so stoic at the defense table and then something bizarre happened on Friday (who knows what), then it was the right call for the attorneys to get evaluations of her mental competency. Here, the question is whether or not Casey Anthony is competent to assist her attorneys in her defense.

Maybe she had a psychotic break, maybe something else happened. It was their duty to do so - and it was the judge's duty to stop everything until that issue of competency was resolved.

Their issue would be akin to one where a probate judge was being asked for a guardianship: is she legally competent?

Here in Texas, the Court of Criminal Appeals has explained why her legally competency is important - it involves not only (1) the right to effective counsel, but also to (2) the right to due process as well as (3) the right to be present at her criminal trial, all federal constitutional protections:

The requirement that a criminal defendant be competent to consult with counsel is not based only on the right to the assistance of counsel. Another right is the presumption of innocence, which is guarantied by the Due Process Clause.²² Requiring that a criminal defendant be competent to be tried preserves the presumption of innocence by ensuring that a criminal defendant can help the defense attorney defend the client.²³ A defendant must be able to assist trial counsel because often the defendant possesses the only information that may cast doubt on the State’s case. If a defendant is incompetent, we cannot be sure that the defendant can communicate to counsel the facts necessary to mount an effective defense. It also has been said that the requirement of competence is a byproduct of the rule requiring that a defendant be present at trial, since a trial of an incompetent defendant is virtually a trial in absentia.²⁴ The right to be present is largely based on the Confrontation Clause, although it also has a due process component.²⁵

Legal Insanity is a Legal Defense to a Criminal Charge

Mentally incompetency is not the same as being legally insane. Legal insanity is a defense to a criminal charge that's defined by the state law. Here is how it's defined under Florida law:

775.027 Insanity defense.

(1)  AFFIRMATIVE DEFENSE.--All persons are presumed to be sane. It is an affirmative defense to a criminal prosecution that, at the time of the commission of the acts constituting the offense, the defendant was insane. Insanity is established when:
(a)  The defendant had a mental infirmity, disease, or defect; and
(b)  Because of this condition, the defendant:
1.  Did not know what he or she was doing or its consequences; or
2.  Although the defendant knew what he or she was doing and its consequences, the defendant did not know that what he or she was doing was wrong.

Mental infirmity, disease, or defect does not constitute a defense of insanity except as provided in this subsection.
(2)  BURDEN OF PROOF.--The defendant has the burden of proving the defense of insanity by clear and convincing evidence.

Casey Anthony has not asserted the affirmative defense of legal insanity. FYI, prosecutor Jeff Ashton participated in the creation of the Jury Instructions for Legal Insanity as approved by the Florida Supreme Court.

Warehousing Does Happen in Discovery, But It Didn't Happen to Jose Baez

2011-06-21T09:29:00.000-07:00

Back in the day, I practiced law during the "Rambo" years - aggressive, litigious days in commercial business litigation where it was pretty much expected that if you went up against some law firms, you were going to be "warehouseed" in discovery.

Which meant that you would be given access to relevant documents in response to your discovery request, and when you went to their offices to review and flag their originals for photocopying, there would be boxes and boxes and boxes -- maybe even rooms and rooms and rooms filled with boxes and boxes and boxes - and you and your paralegal would be left there, with your stickies, to do what you thought best.

Sometimes, we'd call for the cavalry and have lots of helping hands arrive to comb through everything. Other times, we'd have an idea of things we were looking for, and we could pick through all those documents with some savvy.

Then, there were times we walked out and took it to a judge, moving to compel and maybe for sanctions.

It's no different with a hard drive. Even a personal home computer's hard drive can be compared to producing rooms filled with boxes filled with documents. You can warehouse with a hard drive.

And with his "phone book" analogy, Jose Baez was arguing this morning that he's been warehoused, He just didn't use the lingo.

Problem is: he wasn't. As the judge pointed out, he didn't just have the hard drive. He was given target dates that were of interest. That is like the attorneys on the opposite side of one of my complex business litigation cases saying, yes - here's access to everything, and by the by, we're targeting X and Y if you want to look there.

Judge Perry has a lot more patience than I do.

Psych Today's Dr. Karyl McBride Will Answer Casey Anthony Trial Questions as Guest Blogger Here at Backseat Lawyer

2011-06-20T12:46:00.000-07:00

Dr. Karyl McBride has graciously accepted my invitation to be a guest blogger here at Backseat Lawyer, to answer questions dealing with the Casey Anthony trial that are best addressed by someone with her level of psychological education and expertise.

Dr. McBride's blogs at Psychology Today's web site at The Legacy of Distorted Love, as well as at her website Will I Ever Be Good Enough? and she will be appearing tonight on Issues With Jane Velez Mitchell.

To read her some of her takes on the Casey Anthony case thus far, check out her posts "Lying is Part of the Fascination of the Casey Anthony Trial," and "Why Are We So Fascinated by the Casey Anthony Trial."

Send Your Questions for Dr. Karyl McBride In Comments or E-Mail Now

I will be sending Dr. McBride a list of questions culled from reader comments and emails that I have received since the beginning of the Casey Anthony trial.

If you wish to have your question answered as part of Dr. McBride's guest article(s), then please send it to me as soon as possible, either in the comments below or by email (reba at rebakennedy DOT com). Dr. McBride's first QnA post will appear within the week, and we are discussing additional guest posts here, as well.

Who is Dr. Karyl McBride?

Dr. Karyl McBride is the author of Will I Ever Be Good Enough?: Healing the Daughters of Narcissistic Mothers which has received 4.5 stars in over 75 reviews at Amazon.com.

Her work focuses upon the study of narcissism and its impact within families, particularly the offspring of narcissists. Each year, she hosts a national conference and workshop (20 hour CEU letter available for therapists) where her respected five-step healing model for daughters of narcissistic mothers can work toward full recovery and the re-defining of self/finding one's authentic self.

This year's Daughters of Narcissistic Mothers workshop will be held at the Inverness Hotel in Denver, Colorado on October 7 -9, 2011.

From her website: Dr. Karyl McBride has been in private and public practice for almost 30 years, based in Denver, Colorado, where she specializes in treating clients with dysfunctional family issues. For the past 17, Dr. McBride has been involved in private research concerning children of narcissistic parents, with a primary focus on women raised by narcissistic mothers. She has treated many adult children of narcissistic parents in her private practice.

She holds a B.A. from the University of Wyoming in elementary and special education, an M.A. from the University of Northern Colorado in counseling psychology, an Educational Specialist graduate degree from the University of Northern Colorado in school psychology, and a Ph.D. from The Union Institute in clinical psychology.

Dr. McBride has extensive clinical experience in the fields of trauma, sexual abuse, domestic violence, divorce and step family therapy, marital and family therapy, specialized trauma treatment in Eye Movement Desensitization Reprocessing (EMDR), and individual adjustment issues related to anxiety, depression, and life transitions. She does forensic consulting and has served as an expert witness in numerous civil and criminal cases involving children and sexual abuse; has 9 years experience conducting sexual abuse investigations with law enforcement; and she has conducted training for law enforcement in the area of sexual abuse investigations.

Thanks in advance to Dr. McBride and to all of you!!

Jose Baez - Sanctions, Contempt of Court, and Bar Discipline - Judge Perry Warns Jose Baez and Jeff Ashton of All Three: What Are They?

2011-06-20T11:55:00.000-07:00

Jose Baez was sanctioned by Judge Perry earlier this year, and today Perry warned from the bench that he'll be considering contempt of court as well as additional sanctions after the trial has concluded ... and by mentioning the Florida Bar, he's brought up the possibility of a grievance being filed against Mr. Baez, too.

Sure, the prosecution got pulled into the "gamesmanship" warning from the bench, but I doubt many attorneys are thinking that Jeff Ashton is facing serious consequences here: it's pretty clear that Jose Baez is in trouble, and here's why and what it's based upon. (Not including Baez's lack of experience and not being a death-qualified attorney in Florida).

First, consider where the trial stands.

Counting jury selection, the Casey Anthony trial has been going on for over a month and here we are, on a Monday morning in the middle of the defense's case, and there's no court this afternoon. No evidence for a sequestered jury again today, after losing time on Saturday as well.

The defense has blown up a trial calendar that had been proceeding along on its tracks very efficiently. This is because the defense experts are being asked on the stand about things that go outside their areas of expertise as well as outside their reports. Experts are allowed to provide opinion to the factfinder within set boundaries.

During the discovery process, each side learns of the opposition's testifying experts - what they know, what they've been given and told, and what they are going to tell the jury on the stand and in their written reports.

This is basic advocacy, no big surprises here that the judge is upset that these basic boundaries are being disrespected and that he's making these warnings from the bench.   He's trying to get control of that calendar back, get the trial proceeding as it should be.

Second, What's Going On: Hiding the Ball.

So when the defense experts start flopping over into areas outside their designation and their reports it mucks up the efficiency of things -- and it's not fair. Just as Judge Perry explained on Saturday, it's playing "gotcha."

Sure, state attorneys are being pulled into the "game" because they didn't depose these experts - but depositions cost money for one thing, and secondly, if the opinion looks pretty clear - then why spend that time and money? You are supposed to be able to depend upon the opposing side to abide by standard procedure.

Baez's accusing Ashton of gamesmanship because the state didn't depose these experts demonstrates an attitude of a bad lawyer: this is not "catch me if you can." The State of Florida wants to convict and execute a young woman.

There is no situation I can think of where it would be more important to make sure all i's are be dotted and t's are be crossed. In other words, the idea that Ashton is sneaky because he did not depose an expert to make sure that the defense wasn't hiding a ball that isn't supposed to be hidden under established standards of Florida law is ludricrous.

For example, when Ashton learned that the expert that performed the second autopsy and would be taking the stand to challenge Dr. G's findings was the same man who took the stand in the Phil Spector trial to give his opinion that the dead woman had gone to Spector's house to kill herself, you can imagine that Ashton kinda had a good idea what Werner Spitz was gonna say on the stand. That, and a ONE PAGE expert report.

Did Ashton need to depose the guy? Did Ashton think "hired gun"? I know I did.

What Can Happen to Jose Baez? Baez faces three different avenues of punishment or discipline.

Jose Baez is in danger of being disciplined or punished from three different directions: (1) Florida procedural rules that allow for attorney and party sanctions; (2) Florida criminal law for contempt of court; and (3) Florida State Bar disciplinary procedings where his license to practice law will be at risk of reprimand, suspension, or disbarment.

1. Sanctions Under Florida Procedure Rules.

Judge Perry has already sanctioned Mr. Baez once for discovery abuse back in January 2011, ordering him to pay a little over $500 in fines for Baez's intentional disrespect and violation of a discovery order, when Baez was ordered by the court to turn over to the state attorneys details regarding his expert witnesses' testimony, so the state could prepare to depose them. Under the Florida Rules of Criminal Procedure, Judge Perry could find another willful violation by Jose Baez at trial, and order him under this rule to pay more in sanction fines.

READ JUDGE PERRY'S ORDER SANCTIONING JOSE BAEZ IN JANUARY 2011 HERE.

2. Crime of Contempt of Court For Violation of Court Order.

Anytime anyone violates a court order, then they are acting in contempt of the court and can be arrested, brought before the bench, and punished with fines and jail time. Personally, I've only seen one judge mad enough to impose contempt fines and threaten punishment, and that was for a juror that decided not to come to court one day. Bad mistake.

Under Florida law, could Mr. Baez be ordered to appear before Judge Perry to show cause why he should not be found in contempt of court for violation of a court order after he's already been sanctioned for discovery abuse, and if he can't prove why he's not at fault, Baez could be ordered to spend some time in jail and pay some money as the fine is defined under Florida contempt laws.

3. Florida Bar Discipline - Bar License at Risk.

Law licenses are not property rights; they are privileges (there's U.S. Supreme Court law on this, if you're interested).   Grievances, or complaints, can be filed with the Florida State Bar regarding an attorney's actions and the agency will then investigate those allegations. In worst case scenarios, lawyers have been disbarred - losing their licenses to practice law because of their bad acts.

Lesser punishments are being suspended from practicing law for a set period of time, or being reprimanded - publicly or privately denounced for doing something wrong. The criteria for deciding what those sanctions will be can be reviewed here, in the Florida Bar's adopted version of the ABA standards for bar sanctioning of lawyers.

It's Never a Good Sign When the Jurors Are Falling Asleep On You

2011-06-17T10:11:00.000-07:00

You're giving a presentation at work. Or, you're in front of a classroom filled with 100s of people, reading your short story. You're teaching Sunday School. Heck, you're teaching anything, anywhere to a group of people.

Imagine the message you're receiving if members of the audience, say 30% of them, have fallen asleep while you're talking. What are you going to think?

Well, presenting your case in a courtroom isn't that different from these other situations. Although what is at stake is much, much different.

Lawyer in trial are always monitoring what the jurors are doing. Are they taking notes? Are they looking at my client? If they are, what's on their faces: scowls, smiles, concerned brows? If they're not, then where are they looking? Are they avoiding my client?

Some jury behavior is good. Smiles are good. Some jury behavior is bad. Never looking at your client is seen by many attorneys as a signal that things are going very badly for their side.

However, having a third of the jury (which is what I've heard is happening during the defense's presentation, 4 jurors are snoozing) sleeping during your presentation of evidence is really a big, and bad, deal.

Sure, this is technical forensic stuff. However, the jury wasn't sleeping during the same kind of evidence during the prosecution's presentation. I don't think this can be blamed on dull evidence coming in .....

Different Ways of Looking at the Casey Anthony Trial - Not Guilty Standard

2011-06-14T14:07:00.000-07:00

Reading through all the comments left here over the past week regarding the Casey Anthony trial (and thanks again to everyone who has taken the time to leave a comment, it's appreciated), I've been thinking about how different perspectives can be taken on what we are all watching unfold.

There's the viewpoint of the truthseeker: what really happened here?

Everything gets pondered, and personal recollections and experiences are mined for information that will help explain how this crime could have happened, and why. To be honest, that's me. Maybe you, too.

But that's not necessarily what anyone's role is there in the courtroom.

First, there's the perspective of the defense attorney.

This focus is upon getting their client acquitted - and if not freed, then with the least amount of punishment possible. That's the defense attorney's job. To defend.

Second, there's the prosecutor's focus.

The state attorney is compiling evidence and presenting it to the jury and placing it in the record in order to meet the elements of the crimes contained within the charge (see earlier post on what the state has to prove, and with what Casey has been charged.) Enough evidence has to be presented to meet the burden of proof - beyond a reasonable doubt. Not all evidence will be placed before the jury (for example, I'm not hearing anything about how Casey was arrested under an overpass while she was changing cars and possibility trying to run away). When they rest their case, they should set down thinking "we have given the jury everything they will need when they get those jury instructions, to tie law to facts and come back with the verdict we want."

Third, there's the judge.

He's protecting the law as it is presented to him. No objection made to a piece of evidence and he knows it should have been? He must set there and let the attorney make the error. Expert provided that he thinks isn't the best choice? Not his call. If the law and the precedent has been met, then he must follow state law. Is the law being followed as the attorneys do their job? Then the judge is doing his.

Fourth, the jury.

They are to take what has been presented to them and deliberate with the instructions that have been given to them (hasn't happened yet) to decide whether or not the state has met the burden of proof for "guilty" on the charges they've been given. They are not deciding innocence.

No one in that courtroom is considering innocence - they are considering the standard of "not guilty."

Here's why that is very important to all of us.

The crux of this proceeding, as any criminal proceeding, is whether or not the government will be allowed to take a citizen and throw them in a cell, denying them freedom for a period of time. In this case, the government is going one step further: the State of Florida is asking that the citizen be killed by an executor for the crime that the state is alleging has been committed.

Freedom, life: it's one of the truly great things about our American system of justice that we fight so hard to protect these things. Not every country does, and we read about that every day.

So, when we are all watching the Casey Anthony trial, I for one want that prosecution to be strong in its case and I want the defense to be stellar in its challenge. It's not because of Casey Anthony, though it's her life on the line -- it's because I respect the system and what it means to all of us.

Now, as the state is preparing to rest, I'm waiting to see what the defense is going to pull out of its hat. Mr. Baez and his co-counsel knew the evidence before it came in, so all this "drowned in the pool" and "body was moved" has to have some sort of basis they'll try to present. Will this sway the perspective of "not guilty" here?

I don't know yet. But "not guilty" is all that the defense has to meet -- and that's another way of saying, here's enough doubt to keep you from jumping the reasonableness hurdle.

Casey Anthony Trial Obsession - Why This May Be a Good Thing

2011-06-13T17:53:00.000-07:00

Is the country obsessed with the Casey Anthony trial? Maybe. TIME magazine thinks so.

These days, little else besides the Casey Anthony trial appears to be covered on HLN, and other evening news or news feature/talk shows appear to be devoting quite a bit of coverage to this one case in Orlando, Florida.

I admit to watching more television than usual these past two weeks, and I'm sure that I'll stick with my pattern through to the verdict. Part of my pondering this whole thing is asking myself why I feel the need to stick with it: it's not like I don't have a gazillion other things to do. You too, am I right?

However, I don't think that having so many Americans watching the Casey Anthony trial is a bad thing. In fact, I think it is a good thing for several reasons, including:

1. Viewers Are Learning How Trials Really Work - Which Helps Lawyers in Future Cases

Trial lawyers have to deal with clients, jurors, witnesses - heck, sometimes even experts - that expect courtroom proceedings to happen just like they've seen them on television. The attorney's biggest concern is that a jury does not perceive his or her case as weak just because someone looking remarkably like Laurence Fishburne or David Caruso or Marg Helgenberger isn't taking the stand to describe how this fancy dancy lab gizmo can reveal who shot JR in thirty seconds flat.

Or, that the lawyers aren't numbskulls because they need more than the single file folder you see oh-so-many lawyers bring into the courtroom (and then they don't even open the folder to look inside!). Oh, oh, oh - and the perfect hair and makeup and wardrobe! TV lawyers never, ever reflect the reality of real courtroom work. Trial lawyers work all night getting ready to perform the next day; by that second or third week, no one has perfect hair (or maybe even mascara) at that point.

So, to the extent that discussions are being had over "junk science" and viewers are watching how cumbersome those objections can be in the Casey Anthony trial and how many paper is really involved, good. It helps the real lawyers out there - and justice, too. (I won't discuss the blond attorney's hair, but I think she's doing a fine job of keeping up appearances with everything else on her plate. Isn't she still wearing heels? Geez Louise, that's impressive.)

2. Viewers are Finding Out Why Death Penalty Cases Cost So Much

There is lots of chat right now not only about how much is Jose Baez getting paid (or not), but also about how much the State of Florida is going to have for a final tab in this case. Viewers are learning the right to counsel that is constitutionally guaranteed to anyone who can prove themselves indigent means that these cases have the government (read that "the taxpayer") footing the bill for work done by both sides as well as all their expenses. Now, those fees and expenses are monitored (in Florida, it's by the JAC) and the legal fees are far from what a similarly situated criminal defense attorney would get in a private-pay case.

Still, one of the main challenges to the death penalty in the country today (think California) is the simple fact that it costs so darn much. In the Casey Anthony trial, viewers are seeing how this works -- and they will soon see, assuming that there is a guilty verdict, how a death penalty case is really two trials in sequential order. The penalty phase will have its own evidence (witnesses, testimony) as the state puts on its aggravating factors and the defense, its mitigating circumstances, as the decision of whether or not the sentence should be death at the hands of the state is determined.

So, it's good that viewers are learning the finances of indigent defense, particularly involving the death penalty.

3. Viewers Are Learning About Parents Who Don't Love Their Kids Like People Assume They Do

Right now, I don't think there is enough information out there about mothers who are not automatically loving and kind and protective of their offspring. Casey Anthony is viewed as something unique, still - and whether or not viewers think she's innocent or a monster, it's still discussion revolving around this one young woman. I have hopes, though, that this will change.

In my years down at the Children's Court, I saw all too often that mothers (and fathers) are not blessed with an inate need or drive to protect, love, or nurture their children. Frankly, it was a reality that slammed me in the face, seeing child after child, each beautiful and unique in their own way, discarded or disrespected or victimized in other ways by their BioMom or BioDad. The mothers really got me - choosing drugs, men, or just their freedom over their babies.

It happens a lot more than most Americans want to think about: it's easier to think about children starving in Africa or orphaned in Tahiti than it is to consider the overwhelming number of unloved, abused, and neglected kids here in our own backyards. Here in San Antonio, there are only enough child advocates (via CASA) to assign to 1/3 of the children who have been removed from their parent's care. That means 67% of the local kids don't have an advocate (they do have a lawyer and a caseworker).

I hope that the Casey Anthony trial, somehow, sheds a light on damaged mothers - and the children they leave behind. That, I think, would be the best thing to result from the Casey Anthony trial obsession.

Casey Anthony Trial - Who's On That Jury?

2011-06-09T15:11:00.000-07:00

The Orlando Sentinel has a great reference for who is on the Casey Anthony jury, entitled "Bios of the Casey Anthony Jury."

It's a slide show, and appears to be a transcription of notes taken by the Sentinel's reporter during jury selection. Their identities are being protected until they are released from jury duty - but once they're released, we'll know lots about them. Remember the OJ Trial?

Circumstantial Evidence vs Direct Evidence

2011-06-08T12:16:00.000-07:00

Can we trust circumstantial evidence? Sure we can. And we do. Rather than use my own words to explain why, I'll leave it to the United States Supreme Court in the landmark case, Holland v. U.S., 348 U.S. 121, 140, 99 L. Ed. 150, 75 S. Ct. 127 (1954):

Circumstantial evidence in this respect is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more.

For Those That Distrust Circumstantial Evidence, Direct Evidence Isn't That Reliable

There are those that may argue that direct evidence, especially in a murder case, should be the only evidence used to convict. However, in our imperfect world there usually isn't much direct evidence in most crimes -- and the direct evidence that may be had might not be the most reliable.

Eyewitness testimony is notoriously unreliable, for example - and you can't get more direct that a witness glaring at a defense table, pointing his finger and crying out, "he did it!"

Meanwhile, the slow and tedious introduction of pieces of circumstantial evidence, as time consuming as it might be, can provide a clear picture of the truth - I like to think of it as a "Lite-Brite" of sorts. Remember Lite-Brites? They were toys were white lights were hidden by thick black paper on a screen, and you had oodles of plastic buttons, or pegs, that you pushed one at a time into that black nothingness until an image emerged.

Perhaps those that distrust circumstantial evidence are more concerned, really, with the burden of proof that the State in a criminal case must meet in order to prove their case. Twelve jurors must use what they have (from Holland, their "experience with people and events") and determine if there is any reasonable doubt left that the defendant did the crime alleged.

Doubt can remain. It just cannot be a reasonable doubt. And logical reasoning can occur in that jury room. If it walks like a duck, and it talks like a duck, you can infer it's a duck.

Some Believe That Circumstantial Evidence is More Reliable That Direct Evidence

Note: In fact, there are those in the criminal arena that find circumstantial evidence to be more reliable than direct evidence (especially when we're talking eyewitnesses). If you are interested in learning more on that issue, I've downloaded Professor Heller's excellent article on this subject, "The Cognitive Psychology of Circumstantial Evidence," 105 Michigan Law Review (2006) at Google Docs.

The University of Michigan Law School is one of the most prestigious law schools in the country, and coming from UT Law, another top tier law school, maybe I should have found a UT Law Review article -- but I like Heller's article here and I think you will, too.

Casey Anthony Trial Defense Costs - How Much the State of Florida Has to Pay

2011-06-08T10:45:00.000-07:00

Judge Perry, in a public hearing last year, approved the court clerk's determination that Casey Anthony was legally indigent. By being declared "indigent" under the law, Casey would become eligible for her legal expenses to be paid by the State of Florida. However, the defense did not request that her attorneys' fees be paid out of the state's pocket according to the media sources I reviewed today. (Good summary provided by CBS News.)

One year later, according to Orlando's WESH-TV, the defense had spent $80,000 and was asking for more. (Story here.)

That was back in March. Who knows what the total is today.

Two thoughts here: first, death penalty cases are expensive to try. You've got a guilt phase and if the defense loses there, then you've got a penalty phase - where death is debated. Sentencing is a new ball game and there are different witnesses, etc. and with that a new set of expenses.

Second, another good thing coming from the Casey Anthony coverage is the education of the American public on what it means, budget-wise, when an indigent is facing the death penalty. The taxpayers are paying for BOTH SIDES of the case -- attorneys' fees and legal costs. The fact that Baez isn't being paid by the State of Florida here, nor his death-qualified co-counsel, shouldn't be considered as what usually happens.

Some states try and cut these costs with Public Defender Offices, some have appointment lists of outside, private attorneys who are eligible to defend death penalty cases. Either way, it's tax money.

The Psychology of Casey Anthony - I've Invited a Psychologist to Post

2011-06-08T10:25:00.000-07:00

I want to understand what is going on with Casey Anthony and her family, and I know that several readers have written, voicing similar interests. So, I've sent an invitation to an expert in narcissism and asked for a guest post.

Hopefully, we'll have that input by Friday evening - if not, I'll send out another invite to an expert in narcissism or sociopathy, etc. and (fingers crossed) either way, we'll have an expert giving us details on this issue.

Personally, I pondered on this issue a couple of years back, as fodder for character studies in my personal writing and I posted about this at my fiction writing blog (here).

For me, I don't believe that Casey can be considered without looking at her family, particularly her mother. There's something sad and bad about their relationship - but I'll wait to hear what the psychologist has to reveal about all this.

Reading one reader's comment here - Anonymous on June 5th to Who Is Jose Baez? post - I think she may know more than the rest of us about the family dynamic in that house, e.g., that Casey became a liar as a means of escaping the overwhelming power and control of her mother. That makes sense to me.

One other thing: I wish that I could look at Casey Anthony and consider the possibility of a mother killing her child as a bizarre, unique instance - but I can't. One of the biggest shocks that I had when I worked the local CPS Docket was the parents, particularly the mothers. There were some that were blind to their children, they did not care. I learned that a maternal instinct is not a given in humans. Some chose drugs, true. Some, however, just did not love those babies - and "blind" is the closest I can get right now to describing their lack of perception.

Casey Anthony Trial - Here is What the State Has To Do To Prove Its Case Under Florida Law

2011-06-04T06:56:00.000-07:00

In the Casey Anthony trial, the prosecution must provide the jury with evidence beyond a reasonable doubt that the crimes for which she was charged were indeed committed by defendant Casey Anthony. I'm providing two helpful links here for those wanting to follow along with the trial as the state puts on its case.

What Casey Anthony Has Been Charged With - First Degree Murder, Aggravated Manslaughter of a Child

From a CNN article, I found a listing of the grand jury indictment's seven counts: Casey Anthony is charged with first-degree murder, aggravated child abuse, aggravated manslaughter of a child and four (4) counts of providing false information to police. First degree murder in Florida carries the possibility of the death penalty (see below).

(By the way, when I found this article I re-read something that I had forgot: Casey was arrested after she switched cars under an overpass shortly after the indictment came down - wow. Forgot all about that one.)

Florida Prosecutors Burden: What They Must Prove With Admitted Evidence To Win Their Case

The Florida Supreme Court's website includes the current jury instructions that are to be used in Florida criminal trials. From these instructions you can find each prong of the case, or element of the crime, that must be shown by the reasonable doubt standard. Just surf through.

You can read the section under Homicide and get an idea of the prosecution's duty here, it's in somewhat of an outline format but easy enough for following along with the current proceedings.
Search the Florida Supreme Court's instructions to find First Degree Murder as well as Aggravated Manslaughter of a Child: Florida Supreme Court - Jury Instructions.

For First Degree Murder, for example, you will find:

"There are two ways in which a person may be convicted of first degree murder. One is known as premeditated murder and the other is known as felony murder.

"To prove the crime of First Degree Premeditated Murder, the State must prove the following three elements beyond a reasonable doubt:

"1. (Victim) is dead. (State will have to put in evidence that Caylee Marie Anthony is dead.)

"2. The death was caused by the criminal act of (defendant). (State will have to put in evidence that Casey caused Caylee's death and this was by a criminal act.)

"3. There was a premeditated killing of (victim). (State will have to put in evidence that this was premeditated.)

"Definitions.

"An “act” includes a series of related actions arising from and performed pursuant to a single design or purpose.

“Killing with premeditation” is killing after consciously deciding to do so. The decision must be present in the mind at the time of the killing. The law does not fix the exact period of time that must pass between the formation of the premeditated intent to kill and the killing. The period of time must be long enough to allow reflection by the defendant. The premeditated intent to kill must be formed before the killing. The question of premeditation is a question of fact to be determined by you from the evidence. It will be sufficient proof of premeditation if the circumstances of the killing and the conduct of the accused convince you beyond a reasonable doubt of the existence of premeditation at the time of the killing. "

What are jury instructions?

Jury instructions take the actual statutes and place them into a format for the jury to use in their deliberations, as they assess the evidence presented to them. There is a charge conference between the lawyers and the judge (at least that's what we do here in Texas), where the jury instructions are debated by the lawyers and after arguments, finalized by the judge. The charge will include the instuctions as well as question like you hear on Law n Order all the time: "how do you find" type of thing.

For example, here is the Florida statute for murder which can result in a life sentence or the death penalty which you can see dovetailed into the Jury Instructions for Homicide (above):

Florida Statutes 782.04

Murder.—
(1)(a) The unlawful killing of a human being:
1. When perpetrated from a premeditated design to effect the death of the person killed or any human being;
2. When committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any:
a. Trafficking offense prohibited by s. 893.135(1),
b. Arson,
c. Sexual battery,
d. Robbery,
e. Burglary,
f. Kidnapping,
g. Escape,
h. Aggravated child abuse,
i. Aggravated abuse of an elderly person or disabled adult,
j. Aircraft piracy,
k. Unlawful throwing, placing, or discharging of a destructive device or bomb,
l. Carjacking,
m. Home-invasion robbery,
n. Aggravated stalking,
o. Murder of another human being,
p. Resisting an officer with violence to his or her person,
q. Felony that is an act of terrorism or is in furtherance of an act of terrorism; or
3. Which resulted from the unlawful distribution of any substance controlled under s. 893.03(1), cocaine as described in s. 893.03(2)(a)4., opium or any synthetic or natural salt, compound, derivative, or preparation of opium, or methadone by a person 18 years of age or older, when such drug is proven to be the proximate cause of the death of the user,

is murder in the first degree and constitutes a capital felony, punishable as provided in s. 775.082.

(b) In all cases under this section, the procedure set forth in s. 921.141 shall be followed in order to determine sentence of death or life imprisonment. (emphasis added)

(2) The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree and constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.
(3) When a person is killed in the perpetration of, or in the attempt to perpetrate, any:
(a) Trafficking offense prohibited by s. 893.135(1),
(b) Arson,
(c) Sexual battery,
(d) Robbery,
(e) Burglary,
(f) Kidnapping,
(g) Escape,
(h) Aggravated child abuse,
(i) Aggravated abuse of an elderly person or disabled adult,
(j) Aircraft piracy,
(k) Unlawful throwing, placing, or discharging of a destructive device or bomb,
(l) Carjacking,
(m) Home-invasion robbery,
(n) Aggravated stalking,
(o) Murder of another human being,
(p) Resisting an officer with violence to his or her person, or
(q) Felony that is an act of terrorism or is in furtherance of an act of terrorism,

by a person other than the person engaged in the perpetration of or in the attempt to perpetrate such felony, the person perpetrating or attempting to perpetrate such felony is guilty of murder in the second degree, which constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.
(4) The unlawful killing of a human being, when perpetrated without any design to effect death, by a person engaged in the perpetration of, or in the attempt to perpetrate, any felony other than any:
(a) Trafficking offense prohibited by s. 893.135(1),
(b) Arson,
(c) Sexual battery,
(d) Robbery,
(e) Burglary,
(f) Kidnapping,
(g) Escape,
(h) Aggravated child abuse,
(i) Aggravated abuse of an elderly person or disabled adult,
(j) Aircraft piracy,
(k) Unlawful throwing, placing, or discharging of a destructive device or bomb,
(l) Unlawful distribution of any substance controlled under s. 893.03(1), cocaine as described in s. 893.03(2)(a)4., or opium or any synthetic or natural salt, compound, derivative, or preparation of opium by a person 18 years of age or older, when such drug is proven to be the proximate cause of the death of the user,
(m) Carjacking,
(n) Home-invasion robbery,
(o) Aggravated stalking,
(p) Murder of another human being,
(q) Resisting an officer with violence to his or her person, or
(r) Felony that is an act of terrorism or is in furtherance of an act of terrorism,

is murder in the third degree and constitutes a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(5) As used in this section, the term “terrorism” means an activity that:
(a)1. Involves a violent act or an act dangerous to human life which is a violation of the criminal laws of this state or of the United States; or
2. Involves a violation of s. 815.06; and
(b) Is intended to:
1. Intimidate, injure, or coerce a civilian population;
2. Influence the policy of a government by intimidation or coercion; or
3. Affect the conduct of government through destruction of property, assassination, murder, kidnapping, or aircraft piracy.
History.—s. 2, ch. 1637, 1868; RS 2380; GS 3205; RGS 5035; s. 1, ch. 8470, 1921; CGL 7137; s. 1, ch. 28023, 1953; s. 712, ch. 71-136; s. 3, ch. 72-724; s. 14, ch. 74-383; s. 6, ch. 75-298; s. 1, ch. 76-141; s. 290, ch. 79-400; s. 1, ch. 82-4; s. 1, ch. 82-69; s. 1, ch. 84-16; s. 6, ch. 87-243; ss. 2, 4, ch. 89-281; s. 4, ch. 90-112; s. 3, ch. 93-212; s. 11, ch. 95-195; s. 18, ch. 96-322; s. 1, ch. 98-417; s. 10, ch. 99-188; s. 16, ch. 2000-320; s. 2, ch. 2001-236; s. 2, ch. 2001-357; s. 1, ch. 2002-212; s. 12, ch. 2005-128; s. 1, ch. 2010-121.

John Edwards, Expert Trial Attorney, Indicted Today in Six Count Indictment From Federal Grand Jury: This Should Get Interesting Fast.

2011-06-03T10:24:00.000-07:00

This afternoon, actually in about an hour and a half, former Vice-Presidential nominee (with Kerry in 2004) as well as a Presidential candidate on more than one occasion, John Edwards is going to make his first appearance as a defendant in a North Carolina federal courtroom, since he's been indicted by a federal grand jury on six counts of essentially campaign fraud.

This is going to be a case to watch, at least I find it interesting. Not only is John Edwards a career politician, he's got a history as an extremely successful trial attorney.

Put those two together in the current scenario, where's he is fighting to stay out of jail, and this is going to be fascinating. Not that he's really demonstrated all that much savvy so far. I mean really.

My first question: who is John Edwards choosing to be his lead criminal defense lawyer? This will bring a whole new meaning to the phrase "controlling your client."

Oh, and fine. I've been expecting this for awhile. Back in August 2008, I wrote a post wondering about the money after the Rielle Hunter story broke. I asked about campaign financing back then. Guess I got my answer today....

Watching the Casey Anthony Trial - Judge Belvin Perry Is One Great Trial Judge

2011-06-03T07:54:00.000-07:00

Watching the daily television feed of the Casey Anthony trial, lots of the good work that Judge Belvin Perry is doing gets lost, as the TV channels take the opportunity for throwing in commercials the minute that the presentation of evidence is halted.

That's too bad, because lots can be learned from watching Judge Perry in action.

What makes me think that Judge Belvin Perry is really good at what he does? Lots of things, but these come to mind immediately:

1. He understands the lawyers' jobs. Granted, my background is in huge, voluminous civil cases that take weeks if not months to try. One example: in these cases, there's lots and lots and lots of paper, and amidst all that pressure of trial, there's the need to keep track of all that stuff. Judge Perry offers the lawyers a secure place to keep their files there in the courtroom - not all judges do that; I have horrific memories of waiting for the firm courier and his cart so we could move all that stuff back to the office every evening, and into the courtroom every morning. Pack up the bankers' boxes, unpack the bankers' boxes. How nice to have the Judge give that secure space, it's a little thing but it's a big deal, too.

2. He lets the jury know that they are the Important Ones here - along with everyone else in the courtroom. I respect the American system of justice primarily because in the search for truth, that jury really does tend to sniff it out. True, it's not 100% of the time, but it's amazing to watch those 12 individuals take their spots in the jury box and meld into a cohesive whole. The jury in a trial does become an entity: the factfinder. It's great to see the trial judge here give the jury the respect and courtesy that it deserves. Judge Perry will ask them to make the call on staying late (he did this yesterday); Judge Perry will blast the lawyers on how the Jury wanted to work Memorial Day and their desire to keep moving is going to be respected.

3. He's approachable. Racehorse Haynes was one of my mentors when I was a baby lawyer, and one of the things he told me was that the masters of the profession knew who they were, and let you know that, too. They brought their own personalities into their work, they didn't conform - he told me to watch for the ones that didn't wear the blue suit, that didn't carry the Right Briefcase, you get the idea. Judge Perry doesn't demand respect from the bench, he assumes it will be given - you know he's been doing this for years, without checking his background. He could be intimidating or arrogant and we'd accept it. He's not, he listens to the lawyers and while he's routinely denying Jose Baez's requests for sidebars, Judge Perry is accommodating and ready to help everyone get their jobs done, as best he can.

I could go on and on about this judge. He's just wonderful. I really, really, really respect Judge Belvin Perry.

Posting on the Casey Anthony Trial - Better Late than Never

2011-06-03T07:25:00.000-07:00

Like most of the country, I've been following the Caylee Anthony tragedy almost since the afternoon that Cindy Anthony's 911 call was first released by the national media. I'm not sure why so many of us are so pulled to this particular case. I know there are several theories, but there it is: enough viewers around the country that the trial is being shown all day long, every day, and then countless Talking Head shows are doing their various replays and analyses during the evening.

It may not be the O.J. Simpson trial, but it's getting close.

I haven't been posting on the case for one reason: Terry Lenamon, the first death-qualified attorney on the Casey Anthony defense team, is one of my writing clients. I didn't want to give any appearance of impropriety and for a very long time, I didn't write about this case. I just watched; discussed developments with friends.

However, I've changed my mind about this for these reasons:

1. Terry Lenamon hasn't been on that case for years now, and he has never (ever!) discussed the details of that representation with me. No, I haven't read the memo. No, I don't know the backstory about how he got on that case or why he got off. No, I don't know what his opinion is on what is happening now - haven't got a clue.

2. There are important things for all of us to learn from this trial.

First, there are more details here on the reality of how trials work, which is important because TV expectations (like CSI forensics) do impact how lawyers have to present their cases now. Having jurors of the future see the Real World of forensics, how evidence is presented, how experts are vetted, these are all good things.
Second, having representing abused and neglected kids for three years here in the local Children's Court, I think this case helps bring light to those issues: not every mother (or father) has that parenting instinct we tend to assume they do. One of the biggest shockers that hit me in the face when I first started working that docket was my naive assumption that these parents loved their kids, put their kids first - you know, the way that you would think. Nope. Nope. Nope.
Third, there are damaged people out there. We need to know more about what mental illness is, why it happens, how we can help. Or, if we can. Having met and worked with diagnosed narcissists, sociopaths, bipolars, and borderlines through that Children's Docket, I know now that there are people out there that see the world, and how to live in it, differently that I do - and some of them are very scary, and some of them will not change. Maybe they cannot be helped, maybe they don't want to change.

3. I'm getting lots of questions about this trial, and I think that in the balance, it's better for me to post here on Casey Anthony than worry about this Terry Lenamon tie. Terry's posted his public statements on his blog for all to read, they are over there. What I post here are mine. No connection. I'm a 20+ year AV-Preeminent attorney in Texas, and I have something to contribute to this national dialogue. (Hopefully.)

What is Ineffective Assistance of Counsel?

2011-05-24T16:24:00.000-07:00

I'm being asked about how a defendant proves ineffective assistance of trial counsel - so I'm posting the following:

1. In all states, this argument will be based upon the federal constitutional mandate that each defendant deserves a fair trial. The U.S. Supreme Court opinion that connects that fair trial guarantee with how a trial lawyer does (or doesn't) do his job is found in the case of Strickland v. Washington, 466 U.S. 668, 687 (1984).

2. If you want to know how your state's highest court has ruled regarding Strickland, then a free and easy way of roaming through the cases is to surf through Google Scholar (click on the Strickland link above) looking at cases heralding from your state (using Google Scholar advanced search).

Here, for example, is an opinion out of Florida's Fourth District Court of Appeal (not its highest court) in Aversano v. Florida, 966 So.2d 493, 494-495 (Fla. 4th DCA 2007):

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious that they deprived the defendant of a fair trial, a trial whose result is reliable. Strickland v. Washington, 466 U.S. 668, 687 (1984).

With rare exceptions, ineffective assistance of counsel claims should be raised in a motion for post-conviction relief because they are generally fact-specific. See Gore v. State, 784 So. 2d 418, 438 (Fla. 2001). “Only in cases where the incompetence and ineffectiveness of counsel is apparent on the face of the record and prejudice to the defendant is obvious do appellate courts address this issue on direct appeal.” McMullen v. State, 876 So.2d 589, 590 (Fla. 5th DCA 2004)(citations omitted).

Feds dipping hands into pensions 2 pay the bills: does this worry you?

2011-05-16T11:24:00.000-07:00

You can get all the details about what’s happening today, now that the federal government is THISCLOSE to hitting the debt ceiling – which is akin to having a zero balance in your checking account, and then maxing out your credit cards – in today’s article in the Washington Post, “Treasury to tap pensions to help fund government.”

Some are calling for the feds to sell off some of that gold. Others say that’s just stupid, to go and sell primo assets. It would cause the price of gold to nose dive. And, after all, just a short-term glitch.

Seems to me that selling gold is analogous to what people do when they’re broke and there’s not enough money coming in: they go through the closets, and find things like jewelry, guns, artwork, stereos – and they sell them to get some cash.

I remember during my divorce being really cash-strapped and selling a collectible doll for around $1000.00. I didn’t care that much about the doll (it wasn’t one of my Madame Alexander’s) and that money was sorely needed.

I also recall a former client who owned a series of pawn shops. She made a very, very nice living off of folk who pawned these kinds of things to get some fast cash.

Too bad that the federal government doesn’t have that pawn shop option. Or does it?

Big Event This Week Isn't the Royal Wedding -- It's the Fed Reserve Chairman's First Press Conference. Ever.

2011-04-26T13:10:00.000-07:00

Tomorrow, for the first time in the history of this country, the Federal Reserve Chairman will hold a press conference. Ben Bernanke goes in front of reporters at 2:15 EST ... why that time exactly? The markets close 45 minutes later, at three o'clock.

I don't know about you, but this has me thinking lots of things. What will this do to gold and silver prices? What's he going to say about interest rates? And, isn't this a nice way of avoiding talking directly to Congress, under oath?

It's reported that Ben Bernanke is going to be doing these press conferences from now on. Quarterly.

What are we to make of that, as well?

Next thing you know, we'll have the Chief Justice of the Supreme Court having periodic photo ops with Q and As with the main stream media. I mean really.

TV Shows That Take From Pending Cases: Harry's Law and the Case of the Big Firm Who Failed the Death Row Inmate

2011-04-12T16:35:00.000-07:00

I don't know if you caught any of the new David E. Kelley television series, Harry's Law, but it's online for free if you want to catch at least the season finale, "Last Dance." I liked the show - even though admittedly it probably jumps the shark at least once an episode on the political soapbox platform stuff - and I hope it returns next year. And that's not just because Kathy Bates is the lead, not some big-haired younger actress with stillettos, a smart mouth, and a love interest. I like Castle, too.

Anywho. The episode became a bit more fascinating than merely entertaining to me when I began to realize that the storyline was a twist on an actual miscarriage of justice that Terry Lenamon and I have been monitoring over at the Death Penalty Blog.

It's really true that a mother calling to check the appellate clerk's docket was the one to inform the fancy schmancy law firm that there had been a ruling. After the deadline to appeal that ruling had passed, of course. What to do? The man faced execution.

That's right: unless some lawyer or judge pulled a rabbit out of a hat, a man would die because of a law firm mailroom messup. Talk about form over substance.

In the television show, the inmate is played by the same actor who portrayed Michael Oher in The Blind Side. Quinton Aaron. He's good, I hope he gets more roles.

In real life, the inmate is Mr. Cory Maples. The law firm that messed up is the highly esteemed Sullivan & Cromwell.

What really and truly happened is this (quoting from the DP Blog):

... two New York associates from swanky Sullivan & Cromwell walked into an Alabama trial court, post-conviction (pro hac vices granted), and filed a motion under Rule 32 of the Alabama Rules of Criminal Procedure. Thereafter, the two associates left the law firm, and when the court clerk sent out notices that the Rule 32 motion had been denied (tick tick tick of the appellate clock), Sullivan & Cromwell returned the notices: "return to sender."

Of importance, the Rule 32 Motion was denied in part because of (1) failure to state a claim and (2) asserting arguments that were to be made in direct appeal. Also of importance, their signature blocks never gave the firm's name, just the individual attorneys -- and yet, the law firm kept the representation after the two lawyers left its employ, learning of the missed appellate deadlines only after their client's mother called to check on status.

We'll have to wait until next season to see what Harry's law firm does to save their fictional Death Row inmate - who had a 30 day ticker before his scheduled execution date.

For Cory Maples, we must wait on the United States Supreme Court. They took the case last month; however, their review is limited to only one argument (no. 2) in his petition for writ of certiorari. Here's that question:

Whether the Eleventh Circuit properly held - in conflict with the decisions of this Court and other courts - that there was no "cause" to excuse any procedural default where petitioner was blameless for the default, the State's own conduct contributed to the default, and petitioner's attorneys of record were no longer functioning as his agents at the time of any default.

Now, we wait on the vote.

The docket for the Supreme Court's decision about Cory Maples can be followed here.

The schedule for Harry's Law? Right now, I don't know that the show has been renewed. Apparently, NBC won't decide until mid-May, after its advertisers get together and vote or something (story here).

Google Books Settlement Nixed by Judge Chin - But Why Does He Rule Here? What Happened to the Jurisdiction of the NYSD Trial Court Bench?

2011-03-22T15:18:00.000-07:00

The Google Books Settlement Agreement that required court approval didn't get it. Today, Judge Denny Chin of the U.S. Court of Appeals for the Second Circuit (an Obama appointee coming out of the New York Southern District Court) released his decision in a written opinion that can be read online at the Southern District of New York's website.

Go here to read the Google Books Settlement Agreement Order of March 22, 2011, in its entirety.

Apparently, Judge Chin ruled on the case since it appeared before him at the lower level trial court when he presided as a judge in the New York Southern District - though he's now in a new position on the appellate bench. He doesn't work there anymore.

Nevertheless, he's signed the Opinion, alone, as "sitting by designation," and ruled in a way that impacts the trial court's docket by keeping this huge case on its trial calendar. The Order includes a setting for the next motion hearing, for example. (I've heard of a district court judge sitting by designation on a higher appellate bench, but this is the reverse of that situation: it's an appellate judge jumping down to the lower tier to make a ruling.)

Is it just me, or shouldn't the trial court have retained jurisdiction and the judge currently setting on the district court's bench be the one to issue this opinion - or at least signed the thing? I'm sure that the phrase "sitting by designation," is supposed to answer all my questions here.

But sitting down here in Texas, I'm thinking how curious it is for a judge on the appellate bench to make this sort of impact - on the trial court he's no longer with, as well as all the parties to this settlement deal. After all, this was a negotiated deal between all the parties.

Plus, in November 2009, a Court Order gave a temporary thumbs-up to the settlement (see it here). On that basis, Google has moved forward, relying upon that okey-dokey. That Order was signed by Judge Chin.

And in that November 2009 Order's last paragraph, signed by Judge Chin (see paragraph no. 30), it states:

The Court reserves jurisdiction over the subject matter and as to each party to the Amended Settlement Agreement ....

I would argue that when Judge Chin accepted the appointment by President Obama and left the trial court bench for a new job on the appellate court, one of the things he left behind was the Google case. Whoever replaced him on that trial court bench got that open matter -- as reflected in the language of the November 2009 Order signed by Chin -- and that there's a big jurisdictional argument to be made here.

In other words, where does Chin have jurisdiction to rule? Sitting by designation? Is there an Order or something that gives him continued authority here? Where is it? Why isn't his power to rule referenced in today's ruling?

Japan News, How to Help Japan: Say What U Want About Google, Google is a Big Help Today

2011-03-17T11:28:00.000-07:00

Hate Google, Love Google - there's no debate that Google is really johnny-on-the-spot today. Google has put together a great page on all things dealing with Japan and the nuclear disaster, the earthquake aftermath, and the effects of the tsunami.

Go here to check it out.

Under the heading "Google Crisis Response," the folk at Google have put together all sorts of links and info blurbs (available in Japanese, English, and other languages) that do many things:

1. tell you how you can help those suffering in Japan;
2. help you locate those who are missing after the Japan earthquake and tsunami;
3. give you the latest news on the Japanese nuclear radiation dangers;
4. show you maps of Japan and the surrounding impact site areas;
5. give you phone numbers of agencies to help in Japan and here in the US;
6. allow you to follow along on tweets coming out of Japan in realtime;
7. give you forums so you can chat with others about the Japan nuclear crisis, or the Japanese tsunami/earthquake;
8. provide you with videos of what's happened and what's happening in Japan;
9. give you a satellite viewpoint of the area impacted in Japan; and
10. give locals info on rolling blackouts throughout Japan, refugee sites, etc.

Good for Google. This is a wonderful and amazing contribution on their part. Helps us all.

Charlie Sheen Lawsuit - Following the Paper

2011-03-10T13:27:00.000-08:00

One thing's for sure: all the media hoopla surrounding Charlie Sheen is bringing with it lots of legal lessons for those who want (or need) to know something about the American legal system and how it works - there's lots to follow for lawyers and non-lawyers alike.

First, there's all the postering and rumor.

That started a couple of months back for Sheen: I'd guess around Christmas-time, really. Same thing for lots of lawsuits: each side starts getting the word out, putting the best light on the situation from its own perspective. This is true for family law cases as well as big business disputes. And if you think that lawyers aren't involved in the spin this early in the program, not true. If they've been hired on at that point, the attorneys will have a say in what's going on here.

Second, there are those nasty, long, and formal letters from lawyers. Notice. Demand. Sometimes, they are required by law. Here in Texas, for example, there are several kinds of lawsuits that cannot legally proceed until a notice letter has been sent out, giving an attempt to resolve the dispute before any lawsuit is filed down at the courthouse.

Did we see them in the Charlie Sheen coverage? Why, yes, we did.

Here's the notice letter from Sheen's people.
Here's the response letter from CBS/Warner's lawyers.

Having read both, I have to admit that while both are well-written, I liked the response letter better. More short sentences. Less Big Bad Wolf stuff. And, nice how they listed all those links at the end, without cross-referencing them to specifics within the correspondence. I liked that.

After you've had attorneys throwing punches on paper like this, you know there's two ways to go: negotiate a settlement or go to war. We don't know that there were any real negotation attempts here. It's been my experience that attorneys will call each other up here, as unlikely as it may be that anyone's willing to resolve things.

Lawyers know their opposing counsel: they've had them on cases before, and they will again. You call up, you tip your hat at the minimum, it's just common courtesy before you strap on the guns. "Hey, bud, how's the wife and kids?" "Fine, yours?" "Fine." "Okey dokey, then."

If you aren't talking, then you're walking. As in, down to the courthouse to file your pleadings. Sometimes, there's a race on who's first - because there's an advantage to being plaintiff. You get to talk first. You get to talk last. Big deal.

Back to the Sheen Example of Civil Litigation.

Sheen's lawsuit has been filed. No race here -- well, sorta. CBS technically filed first with the arbitration forum according to their letter; looks like Sheen's gonna fight that arbitration clause.

Here's the pleading if you want to read it, thanks to TMZ.

As for the pleading, well done. Pretty. Lots of causes of action, lots of great adjectives. Well-written. Well played.

Charlie Sheen may be addicted to something or not. He may suffer mental health issues or not. But Charlie Sheen and his lawyers are doing a stellar job so far of positioning him in this controversy, and using trial by media to their advantage. (Potential jurors will remember those negative drug tests, for example, as well as the "I'm ready to go to work" interviews, and the "I'm fighting for the crew, too" statements.)

Sheen's looking like a good team player on this legal team and that's a good client to have. (#winning.)

Charlie Sheen Needs to do a Hair Follicle Test. Here's Why.

2011-03-01T13:03:00.000-08:00

It's nice to see that Charlie Sheen is gearing up for the lawsuit we all see coming by having Radar Online folk witness his blood and urine drug tests. They'll be great witnesses at trial to confirm that these tests weren't rigged and that he did, indeed, test and come out clean.

Well, all they can really report is that it was his blood and urine that didn't test positive for drugs at that moment.

From my years representing kids in the local CPS Court, I know that blood and urine tests aren't that reliable. There's stuff out there that people know to take that mucks with the results, gives false negatives. Some drugs just don't stay in the system that long, as well. There's all sorts of info online telling you how to beat a drug test, it's not some big secret and it doesn't cost a lot, either.

So before we give Charlie Sheen this big "clean and sober" label, it would be nice to see a negative result from a hair follicle test.

What's a hair follicle test? It tests the hair for drugs. Kinda like the rings in a tree trunk, hair keeps a record going back about 90 days on what the body has injested. Cocaine and other drugs will leave their record in the hair. (Which is why many of us thought Brittany Spears shaved her head way back when -- because she was facing a potential hair follicle analysis in the child custody fight.)

Charlie Sheen is telling the media he's "clean and sober."

Radar Online has published the letter that Charlie Sheen's law firm has sent to CBS and Warner Brothers, claiming that Mr. Sheen is "clean and sober."

Well, offer up that hair follicle test and then I think you can use "clean and sober" with some realistic expectation of acceptance among some of us. In fact, it's curious by its absence and suggests that anyone who went through the detail of writing that 5 page letter to CBS et al. might have considered the hair follicle analysis and decided against it.

You know that these potential defendants are wondering how to get a hair follicle test done asap (or they should be). The sooner the better.

By the way, I love how this letter concludes with the phrase, "Govern yourselves accordingly." Read that and chuckled. Such posturing. And, after such a nicely written notice letter. Just hilarious.

I want the tee shirt. I have already started using it with the dogs. "Here's your chew bones. Govern yourselves accordingly." Hilarious, hilarious.

Govern yourselves accordingly, now.

BUYING HOUSES REALLY CHEAP: GREAT DEALS WITH BAD TITLE? BUYER BEWARE

2011-02-15T16:13:00.000-08:00

Above: The Brooklyn Bridge (always
for sale at a good price).
Source: PublicDomainPictures.Net

Have you heard (or read) the news feature that is zipping around the web -- homes around the country that can be purchased for less than the cost of a car? Homes for $100,000; $50,000; even $7000? (Read all the mouth-watering details here.)

Well, it's tempting to start surfing around for the bargains. However, before you get serious here there's a little, teensy legal issue to consider: solid legal title to the property.

The whole thing about this ForeclosureFraud scandal is because it's not always true that the person selling the real property has legal title to it, no matter how sincerely they think that they do. Likewise, there are mortgage-holders that are paying monthly payments (or negotiating because they can't make those payments) with institutions who have no legal right to be involved; they don't have a legitimate assignment of the loan.

It appears that most of these bargains are bank-owned, and they are selling the properties with lots of verbiage tagged to the deal (things like "as is," the buyer has to investigate homestead status, etc.).

Consider the case law coming out of Massachusetts now, with lots of other states possibly following their lead: there, people that were foreclosed upon years ago are being held to still hold legal title to the property ... even if it's changed hands once or twice and the current "owners" innocently think that they own the home. They don't. They own a lawsuit against several entities, though.

So, be careful out there.

If it's a beautiful beachfront condo, fully loaded, and it's 35K -- then run. At the very least, run to a lawyer and get this checked out. Bad title is a very bad thing.

Nancy Grace Enters Search for Missing Baby as Mystery of New Braunfels' Joshua Davis Unfolds

2011-02-12T10:11:00.000-08:00

Joshua Davis is 18 months old and very cute. He has big button brown eyes and a wide, expecting smile. He is also missing, and has been for over a week now. His mother is very pregnant, and this prevents her from taking a lie detector test. Meanwhile, Joshua's daddy has taken several lie detector tests, and passed.

According to WOAI-TV reporting (see Nancy Grace media link below), so has everyone else who was in the home that day - except for one individual who remains unidentified.

Today is the 8th day that he's been gone.

The baby disappeared during some of the coldest weather we've seen in Texas for decades. Talk of snow. Days where we didn't go above freezing. It's too hard to ponder whether or not it's merciful that those first few hours of searching around the home late last Friday and into that next chilly Saturday morning -- in culverts, underneath the houses and cars and in the wooded areas -- didn't turn up a body. (For awhile, they were calling it a recovery effort - thinking that the toddler had strolled away from his home and in the sub-freezing temperatures could not have survived the night.)

The baby's daddy told reporters that he was glad; he believes his boy is still alive and that he's been snatched. The mother cries; she tells everyone that he was wandering in and out of the room where Toy Story was on the TV and no, the door wasn't open. But it wasn't locked.

And, his mom says that Joshua couldn't open the door. Nine people in the home; mommy and daddy watching television in different rooms; and there's reportedly no trace of the baby outside of the home itself.

They've brought in the bloodhounds. They've got the FBI and the Texas Rangers on the scene. The Heidi Search Center and other community volunteers have helped combed an ever-expanding search area: latest we were told a two-mile radius, and been gone over like a fine-toothed comb.

No Joshua.

Today, there will be a massive flier outreach, with parents and friends and family and volunteers trying to reach as many people as possible in communities along IH 35, from San Antonio to Austin, with papers giving information and a big photo of the little guy.

And, Nancy Grace has joined the team. Her first report on the Mystery of Joshua Davis - gone without a trace - aired this week.

Nancy Grace? Yes, and I welcome her interest - though others may not.

Of course, Nancy Grace coverage will be unwelcomed by some, who will see her involvement as self-serving and an open invitation for media exploitation of a newstory that is growing bigger by the day. Personally, when a baby has literally disappeared from his home then any help should be welcome.

Nancy Grace can bring a huge national spotlight to this little, beloved community north of San Antonio - and it seems to me, that right now this is a very good thing for Joshua Davis.  I welcome her interest.

If you know anything about little Joshua Davis - where he is, where he might be, any clue as to what has happened to him -- please call the New Braunfels, Texas, police at 830-221-4100.

CrimeStoppers of Comal County, Texas, is offering $5000 for information that leads to finding Joshua Davis. You may call anonymously and give your tips to 830-620-TIPS (8477) or 800-640-8422 or just text COMAL along with your info to CRIMES (274637).

Trial by Media: Michael Jackson Doctor, Conrad Murray, Will Be Tried On TV - Should He Be? Do the Pros Outweigh the Cons?

2011-02-08T12:04:00.000-08:00

TMZ is reporting today that the trial of Dr. Conrad Murray in California, where he is facing manslaughter charges in the death of Michael Jackson, will be televised.

Now, I recognize that if there's gonna be any place in the country where putting stuff on the screen seems like no big deal, it's Los Angeles. And I understand that there's a lot of profit here by doing so -- big audience, big advertising dollars, I get it.

I still don't know that this is a good idea. First of all, the job of the defense is to air a lot of dirty laundry. Yes, Michael Jackson will be tried in this case -- it's a strategy honed by my mentor Racehorse Haynes long ago, in the Cullen Davis murder trial.

No smart criminal defense attorney is going to forego introducing as much evidence as possible that puts Jackson in a bad light in defense of Dr. Murray's actions that day. It's gonna happen. (There's already scuttlebutt about a Michael Jackson suicide defense.)

Not fair to his kids. Not fair to his mom. Won't matter. We're going to learn things that will hurt them in this trial, and it's gonna go all over the world instantaneously in this televised trial.

Meanwhile, there are all those conspiracy theories out there (yes, there are Michael Jackson sightings now) as well as the potential of new ones if this trial is not put out there for public scrutiny. People may debate the trial in its aftermath, but they'll have the evidence presented and that's a different scenario than the omission of cameras and worldwide suspicions of evildoing in the courtroom. This is a plus to televising this thing.

However, I'm not a fan of televised trials. Perhaps in the early days, when the process was put onto our screens in sort of a CSpan approach -- but now, it's become so much more akin to reality TV.

Trial by media is a real concern, as well. Can Dr. Murray get a fair trial? I don't know, but if he's convicted there is that possible appellate argument.

Do the pros outweigh the cons? I don't think so in this case. In my opinion, Dr. Murray's trials should not be televised.

The Expansion of States' Rights and Federal Preemption Arguments at the U.S. Supreme Court

2010-11-28T10:40:00.000-08:00

Admittedly, when I first hear the phrase "states' rights" I immediately think of Gone With the Wind. Maybe you'll remember that scene early in the film, where in the smokey front parlor of Twelve Oaks, Charles Hamilton challenges Rhett Butler to a duel after a heated debate amidst the gentlemen over whether or not the South can win a war against the Northern States.

Yes, yes, it does apply: today, we think of the Civil War as a fight over slavery but at the time, freedom of the individual wasn't the sole focus. For many, the War Between the States was fought over states' rights and the South's stance that the federal government should not have the legal power to dictate whether or not an individual state had the right to condone ownership of slaves.

We all know how that turned out. However, states' rights survives today and I'm wondering how intense this round of states' rights assertions are going to get. After all, Texas Governor Rick Perry's already written a best-selling book on it. It's a hot topic.

So, it's with some serious interest that I'm following the federal preemption decisions that are being made now by the United States Supreme Court in four (4) cases: Bruesewitz v. Wyeth; Williamson v. Mazda Motors; U.S. Chamber of Commerce v. Whiting; and AT&T Mobility LLC v. Concepcion.

On their face, these cases don't seem to have much in common with each other - until you get the idea that ribboning through all of them is a fight over power to control something: state or federal.   In legal terms, they are federal preemption cases and the High Court will be opining on the Supremacy Clause of the U.S. Constitution as it applies in some very different scenarios.

Isn't it interesting that writ was granted on these four matters? Is the U.S. Supreme Court about to tell all of us ordinary folk something about how big the Federal Government is, and will be?

1.  Wyeth: the Power of Pennsylvania Personal Injury Law

Bruesewitz v. Wyeth comes to the Supreme Court after the petitioners lost their fight at the U.S. Court of Appeals for the Third Circuit: the lower federal appellate court ruled that parents could not seek legal damages under state law for the damages allegedly sustained by their daughter from a vaccine manufactured by Wyeth because their claim was barred by federal statute.

2.  Williamson: the Power of Utah's Wrongful Death State Law

In Williamson, a wrongful death action was filed under Utah state law by the grieving husband of Thanh Williamson, who died from injuries sustained from the lap seat belt she was wearing when their Mazda minivan crashed back in 2002. Mazda's successful defense thus far is that it followed the federal safety regulations in place at the time (enacted by the National Highway Traffic Safety Administration), therefore Mazda met the minimum safety standards. Federal law therefore preempts the state wrongful death case based upon Mazda being negligent in placing a lap belt in the rear passenger seat. There's no causation. (In 2007, NHTSA upped its requirements, and now shoulder-strapped belts are required for these passengers.)

3. U.S. Chamber of Commerce: Arizona's Ability to Regulate Hiring Illegal Immigrants

In U.S. Chamber of Commerce, a specific state statute passed into law by the Arizona legislature is at issue: the Arizona state law imposes sanctions on companies that hire illegal immigrants and additionally requires the employer to undertake a federal employment verification program that is voluntary under federal law. Is the regulation of any activity dealing with sanctioning illegal immigration going to held as exclusively the federal government's?

4. AT&T Mobility: the Power of California's State Sales Tax Regulation

In AT&T Mobility, the issue is whether or not the Federal Arbitration Act takes precedence over a state law passed in California that prohibits a phone company from giving away free phones to those who contract for the company's phone service and still charging the customer a sales tax for the freebie. The case arguably could result in dooming consumer class action lawsuits .

These Cases Will Be Supreme Court Expansion of States' Rights -- or Affirming Federal Power

Big deal? Yes. These cases are big deals. Lots of folk in lots of places are watching these preemption cases, and wondering what the impact of the High Court's decisions will be. Each of them will be used to apply in all sorts of matters where states' rights are at issue -- arguably, none can be read to their four corners, at least lots of assumptions are already being made that these will be far-reaching precedents.

I Voted and I Prayed - Did You?

2010-11-01T12:42:00.000-07:00

I voted absentee last week, over at my branch library. You would have thought from the parking lot (I got the last slot) that there would be a long wait, a line of folk winding between the stacks. Nope.

When I went inside, there was no line at all. No one knew, and several people were puzzled, about where those cars came from. Political hijinks? Who knows, it's been a crazy year here in San Antonio, election-wise. Not to mention, nationally.

I do know that I don't remember an election where more was at issue, where voting was more important. Some are disgusted, some are disappointed, some are disillusioned. All responses to be respected given the realities we face today.

If there were easy answers, if there were a Cavalry to be called or a wand to be waved, we'd do it. We'd be there. It's a bad time for all of us.

Me? I studied the law at one of the best law schools in the country. I practiced law in one of the most litigious states in the United States for over 20 years. I write about the law and legal affairs professionally today.

It is from this background of education and experience that I find I remain respectful of the system without being enamoured with it. You're right: my vote isn't much at all, numbers-wise, but it's proactive. It's a tiny light, but it's what I've got, what I've been given.

I know that evil can triumph only if the good do nothing - what Burke wrote is true, in my experience.

And your voice needs to be heard. You need to participate because you are important here. Please go vote today. And then, please join me in praying for our United States of America - our country's in trouble, and I think this is one thing that all of us - Independent, Liberatarian, Republican, Green, Democrat - can agree upon.

Texas Judge Suzanne Wooten Indicted for Bribery - But Is She the Evildoer Here? Do We Have A Witch Hunt?

2010-10-20T13:50:00.000-07:00

It's always nice when the gray clears into black and white, and we find ourselves with a clear case of right and wrong. And that looks to be exactly what's happening up in the Dallas metroplex.

Specifically, in a North Dallas suburb and Republican stronghold (last Democratic Presidential candidate to carry the county was LBJ in 1964), where a district judge and the local district attorney are squaring off like a Wild West gunfight at High Noon.

Judge Suzanne Wooten v. DA John Roach

Officially, we're talking Collin County, Texas -- McKinney is the county seat, if you've been there -- and the big story revolves around State District Judge Suzanne Wooten who was suspended with pay this Monday after being indicted by a grand jury last week on 6 counts of bribery along with 1 count of organized criminal activity.

You read that right: a Texas judge has been indicted on 7 felony counts -- of import, the single organized crime count alone carries a life sentence.

Along with Judge Wooten, facing the same charges are two of her backers, David and Stacy Cary, along with her campaign manager, James Stephen Spencer.

Is this a Political Agenda or a Crusading District Attorney? We're Gonna Find Out ....

Judge Suzanne Wooten claimed victory in 2008 over Charles Sandoval, who had presided over the 380th Judicial District Court for the past twelve years. Wooten is a Republican and the first opponent that had challenged Sandoval in an election since 1996.

A Republican won in a recognized Republican stronghold. An officeholder loses the first time he's faced with an opponent. No big news yet, right?

July 2010: Judge Wooten Seeks Special Prosecutor to Investigate Possible Criminal Wrongdoing by DA Roach

According to papers filed of record in July 2010 by Judge Wooten, the morning after Election Day Charles Sandoval was over at the office of John Roach, Collin County District Attorney, voicing his belief that Wooten had cheated to get elected.

Two and a half years later, Wooten is filing papers alleging that Roach was trying to force her resignation, that he was "intimidating and harassing her," and that she was requesting the state Attorney General appoint a special prosecutor to look into the goings-on in Collin County for possible criminal wrongdoing by the District Attorney's Office.

October 2010: DA Roach Gets Grand Jury Indictment Against Judge Wooten - Felony Charges

DA Roach's follow up has culminated in the October 2010 grand jury indictments that claim the Carys handed over $150,000 to Wooten's campaign manager via a series of payments (listed in the indictment) with the intent that Wooten would rule in their favor once she took the bench. (No details on what cases, if any, the Carys had/have pending before the 380th.)

Someone is Doing Bad Things Here, Folks

Well, well, well. Isn't this scenario fascinating? First of all, I'm really interested to know what imminent danger the Carys were facing that needed alleged judicial sway worth $150,000 to them.

After all, the general idea that political contributions of any size carry with them the hope that maybe the judge will be swayed when the time comes isn't big news. Tell it to the plantiffs' bar as they contribute millions to political campaigns. Tell it to any lobbyist.

I want to know what was so special about the Carys' situation. If they're just political benefactors without any specific case or claim that had the potential to come across the judge's bench, then these bribery charges are gonna start stinking with the big ugly smell of "trumped up."

I'm not buying "organized criminal activity" here already -- alhtough I'm no criminal lawyer, that sounds like a charge that's gonna get dropped. Please, this isn't the Mafia here.

Defense Bar Publicly Supports Judge Wooten With Standing Ovation

Meanwhile, I'm reading that a big bunch of defense attorneys strode en masse into Judge Wooten's courtroom bright and early Monday morning led by the president of the local Criminal Defense Lawyers' Association. After their standing ovation, the association president stood to speak, telling Judge Wooten that she had their support and publicly voicing the attorneys' collective opinion that this is a "witch hunt."

Interesting. Very interesting. Because these folk work in this courtroom all day long, going against the prosecutors in the District Attorney's Office. They know the skinny. Their action here makes me think that Judge Wooten isn't the bad apple in this barrel.

Commission Suspended Wooten With Pay

Another thing to consider: the State Commission on Judicial Conduct DID suspend Judge Wooten this week. But they did it with pay, which they didn't have to do. I'm betting that they were forced to suspend her since she was indicted. No option on their part to suspend, but they gave her as much of a break as they could.

Falcon Lake Killing of Colorado Tourist - a Mystery Playing Out on the Texas Mexico Border

2010-10-08T11:32:00.000-07:00

I've lived in San Antonio for most of my life - and my family has been in Texas for the past seven generations, with ties to various communities from the Killeen/Belton area (now Fort Hood) over to Hallettsville (nearer to Houston) and down to Corpus Christi.

Lots of family stories about lots of Texas sites, along with the usual folklore. Pecos Bill, the Donkey Lady, the Indian lovers who threw themselves off the cliff near Floresville, the ghosts of the school bus kids who push your car over the tracks near Mission Road.

Suddenly, we're all hearing about Falcon Lake

No one ever talked about Falcon Lake, much less went there to fish for bass. I never, ever heard about Falcon Lake until I started doing research on the drug cartels for a writing project. Falcon Lake is big, and it sets there on the Texas-Mexican border, a big bubble of the Rio Grande - 60 miles long. Part of the lake is in Mexico, and part of the lake is Texan.

Which all goes to provide backstory to my following of this news story: the couple from Colorado, down on Falcon Lake having fun when some Mexican pirates shot the husband in the head - and now his body is missing and Governor Perry is getting lotsa press coverage, demanding that Mexico help find the victim's remains.

Within the past hour, there's been a press conference where the Zavala County Sheriff is reporting that blood evidence supports a belief that members of the Zeta drug cartel were the mysterious pirates that shot at the vacationing couple, presumably to enforce their borders in an ongoing cartel drug war.

Wow.

Falcon Lake? Really? FoxNews is reporting that search teams continue to look for David Michael Hartley, 30, in the Mexican part of Falcon Lake, based upon the information provided by Tiffany Hartley, 29, who has told authorities that her husband was shot in the head by one or more men from two boats that accosted them as the couple were riding the lake on Jet Skis.

The Texas Department of Public Safety (DPS) has notified the public that David Hartley's encounter is the 5th report of Americans crossing paths with Mexican pirates on the waters of Falcon Lake. From the DPS news release, these prior incidents are (quoting from the DPS release):

April 30, 2010: Four heavily armed men boarded two boats near the Old Guerrero area demanding money. The bandits were given $200 in cash and tried to follow the U.S. boats as they sped back to U.S. waters. The bandits stopped once they reached the United States boundary.
May 6, 2010: Two armed men approached a boat near Marker 14 on the north side of Salado Island on top of the ruins at Old Guerrero. The men demanded money, which the fishermen gave them.
May 16, 2010: Five armed men boarded a boat on the United States side of the lake near Marker 7. Investigators have no further information on the incident.
Aug 31, 2010: Falcon Lake pirates, using a small boat marked “Game Wardin” using duct-taped letters to possibly mimic Texas Parks and Wildlife vessels operating in Texas waters, attempted to stop a Texas fisherman. His knowledge of previous DPS safety warnings about Falcon Lake and the misspelling of the word “Warden” alerted the fisherman that something was wrong and he outran the Mexican vessel to safety.

Here's what I think. I think that this couple did cross a line in the water that day, and two boats did chase them down, shooting guns in what must have been a terrifying experience for the poor woman who survived this encounter.

Calling these shooters "pirates," however gives them a romantic label that isn't appropriate, though. These aren't colleagues of Captain Jack Sparrow we're talking about here.

I doubt that the couple looked like they were running drugs, poaching business from the drug professionals. And, illegal drugs - along with guns, ammo, and human trafficking - is big business in my part of the world. It's not legal, and it's not advertised on TV, but it's here.

The big elephant in the room. The 800 pound gorilla.

When I follow this story, what I read is that the Zetas are claiming Falcon Lake as their own. This isn't a big surprise here in Texas -- we stopped Christmas shopping in Nuevo Laredo several years back, so this is just another spot we're savvy to avoid.

What I'm wondering is when the rest of the country is going to get up to speed here. And, what's going to be the solution to this growing violence?

It's nice to think that there's a big, bold border between Texas and Mexico - but that's only on maps. Here in San Antonio, we know it's a murky co-mingling of cultures that starts somewhere south of town. And, it's getting closer to our city limits every day.

San Antonio Named Most-Recession Proof City in America (other than Washington D.C.) - But What About the Drug Money?

2010-09-21T16:18:00.000-07:00

Derek Thompson of The Atlantic has named San Antonio, Texas, as the most recession proof city in America. If you don't consider the nation's capitol, of course.

Mr. Thompson's provided lots of support for his position. He even came down here and looked around. That's good - we love people to come and visit our fair city.

However, I'm pondering that there's a huge economic cushion here in my town that isn't getting considered in the analysis here: that's all the drug money that flows through our area. Now, I'm not sure how you'd gather numbers for any real comparisons, but I do know it's here and it's huge.

How do I know?  Well, the fact that there's a lot of drug money around here isn't news to those of us who live in the Alamo City. However, the extent to which my beloved hometown is a business hub for the transportation of illegal goods became clear to me during the three years that I was active in the Bexar County Children's Court, representing abused and neglected kids in CPS cases. Sometimes, yes, I represented the parents who were being threatened with their parental rights being terminated, too.

From these clients, as well as CPS Investigators, and various members of law enforcement (Border Patrol, Texas Rangers) I came to learn how the drug business is just like any other: it's a profit-oriented enterprise, and it has distribution and transportation concerns as well as manufacturing and marketing.

Interstate 35 and Interstate 10 intersect smack-dab in the middle of San Antonio.  Last I heard, a lot of heroin was being moved along these routes by the cartels up and through the rest of the nation. From Mexico, San Antonio is an important link in the distribution chain.

Which brings lots of money into our economy, whether we like it or not. Not to mention the human trafficking (I learned about the coyote business during my CPS representations, too) and gun-running.

Is this illegal stuff a true cornerstone of our local economy? I don't know, because I have no idea how much we're truly talking about here. However, from what I gleaned from all the people that shared their information with me, it's big numbers.  Millions, billions.

And that I think may be the real reason that San Antonio isn't hurting economically as much as other parts of the country right now.

The Recession Ended in 2009? Who are they kidding?

2010-09-20T16:59:00.000-07:00

The Big Kahanas are reporting that the Recession is Over. The Associated Press is basing its news on the OECD (Organization for Economic Cooperation and Development), and Time Magazine is sourcing the NBER (National Bureau of Economic Research) -- both opining that things magically changed in June 2009, and yes -- over 14 months ago, the recession was over.

Read the OECD Report Overview here. Read the NBER Summary here.

My first thoughts: baloney.

Maybe if you label 2007-2009 a recession, and then a couple of years down the road, you come back and label another batch of months a second (double dip) recession, you can feel better about things. (Which is what I'm expecting these Svengalis will do, to justify the reports they've just issued.)

I think we're in a Depression, not dipping recessions, and that the government is scared of public reaction if they start using that very, very scary word: depression. Lots of us remember family members telling horrific stories about the Great Depression, and heck: who wants to think that the Joad Family is their future?

What about their numbers? Statistics - please. I think things have been fudged, ignored, manipulated here because my reality simply does not jive with these reports.

Bottom line, I'm not buying what I'm being told. But heck, who am I?

My finance degree (BBA) is ancient history, my law degree means I look for an argument, and my writing career means I'm nosy and try to observe every piece of lint that floats by ... so I went looking around.

And I see that there are others that aren't buying it, either:

Stephen Gandel at Time.com predicts a double dip. Another recession is coming (is here?).

Ann Brenoff at WalletPop discusses reality vs. the NBER, with stats on unemployment and poverty levels among other things.

BusinessPundit calls the NBER "hallucinatory" - love this. Hallucinations, makes me chuckle.

ZeroHedge labels the NBER findings "worthless," wondering when the reality that we're in the midst of a Depression will be announced to the public (predicting the mid2020s). Kudos here to actually using the skeery word.

In the midst of all this surfing around, I discovered a Dartmouth economist's site, where he analyzes governmental reporting -- and John Williams has a very, very different take on the state of our economy today.

He's got employment at 22% (which sounds pretty real to me) and GDP in the negative since 2004.

Now that, that's sounding closer to the mark.

Randy Quaid Squatting in a Home He Used to Own? He's Lucky this Bust is in California and not Texas: or is he?

2010-09-19T15:33:00.000-07:00

Randy Quaid and his wife Evi have been arrested again by the California police. According to news reports, Mr. and Mrs. Quaid not only gained access to this Santa Barbara County home -- apparently up for sale, there's a realtor who is talking to the tabloids (gotta love that, right?) -- Randy and Evi hung their portrait above the fireplace.

When confronted, they claimed to own the property -- but that was soon refuted by the owner and some annoying property records. Randy and Evi Quaid sit in a Santa Barbara County jail as I type this.

What Is Going On With Randy and Evi Quaid?

I do not understand how these two are roaming around - still - when it seems pretty obvious that there's some serious psychological trouble here (the TMZ commenters are less tactful than I am: they just label Evi a "nutjob"). Randy apparently carved his initials into the mailbox. The couple had set up house here, too: at the time of arrest, there were dirty dishes in the kitchen sink and clothes were already hung in the closet. Did they really think they could hang there indefinitely?

Here's my question: didn't they have any other place to go? Have they already alienated all their friends and family (this happens, you know). According to IMDB, Randy has been barred from the Actor's Equity Association, but the site also shows some very nice salaries -- including $1,000,000 for Goya's Ghosts (2006).

Are they broke? Homeless?

The Santa Barbara cops busted Randy and Evi Quaid on felony burglary charges and each also face a misdemeanor charge of entering a building without consent. Evi has a third charge: resisting arrest (no surprise there). It's a misdemeanor, too.

As you will remember, Randy and Evi have been arrested in the not-too-distant past: just this past April, in fact. They purportedly skipped on paying a hotel bill ....

Each is being held on a $50,000 bail. That's not much.

Randy and Evi Quaid are Lucky They Were Busted in California, not Texas -- or are they?

With California's history of treating celebrities differently (think Paris Hilton, think Lindsay Lohan) the Quaids are probably thought by many to be lucky that they're dealing with California authorities.

Because here in Texas, I'm betting that we'd already be hearing something about psychological evaluations and drug tests and hair follicle analysis. Adult Protective Services, Guardianships, these things come to mind. A bigger bail to make sure some kind of investigation could be put in place before they were free on the streets again.

Cuz Randy Quaid and his wife Evi aren't acting in their own best interests, and maybe they're even getting close to crossing the line of becoming a danger to themselves or others (legal terms italicized).

Doesn't look like celebrity status is doing much to help them here, and I worry that if someone doesn't step in soon, we're gonna be talking tragedy.

So, while this story will be the butt of some late night jokes, I'm sitting here thinking Too Bad. Randy Quaid needs some help - and some respect. He's been nominated for an Oscar and he's built an impressive body of work.

Have You Ever Read the Declaration of Independence?

2010-07-04T08:00:00.000-07:00

IN CONGRESS, July 4, 1776.

The unanimous Declaration of the thirteen united States of America,

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.--Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.
He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the Civil power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
For Quartering large bodies of armed troops among us:
For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:
For cutting off our Trade with all parts of the world:
For imposing Taxes on us without our Consent:
For depriving us in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences
For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:
For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his Protection and waging War against us.
He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our Brittish brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

(For signatures, check out the National Archives' site.)

Google News Changes - Personalized News Source or Big Brother Monitoring?

2010-06-30T16:12:00.000-07:00

There's a video from Google on its Google Blog today, introducing today's revamped Google News -- and while it sounds nice (doesn't Google always sound nice?), I gotta wonder.

How much is Google monitoring what we're reading for its own devices?

Should we be selecting the stories we read, or was it better, when the editors sorted stories according to importance - what we the public might need to know?

The fact that the video uses "Tom Cruise" as an example of how to cull your news to fit your interests, does this tell us something scary about things today?

My New Free e-Book: Twitter Nuts n Bolts 4 Lawyers: a How-to Guide for Law Firms

2010-06-29T15:58:00.000-07:00

Twitter Nuts n Bolts 4 Lawyers: A How-To Guide for Law Firms is my first free e-book. I'm offering this 10-step primer especially for lawyers. In ten steps, it explains how attorneys and law firms can get started on Twitter -- and be tweeting away, efficiently and effectively, in 15 minutes or less. That's right: 15 minutes.

Twitter Nuts & Bolts 4 Lawyers: a How-To Guide for Law Firms is free on the web; you can download or print your copy here.

Leading law firms tweet; check out Jackson Walker, Fulbright, and Vinson & Elkins to name a few. Corporations (read that clients) are using tweets to their advantage, as well. Follow @ScottMonty of Ford Motor Company as an example of how this is done, and done well.

Despite the Twitter explosion, a great many law firms have yet to start Tweeting on Twitter. My new e-Book helps them change that, fast and easy. And yes, for free.

Twitter Nuts n Bolts 4 Lawyers: a How-To Guide for Law Firms, in 12 pages, takes the reader through 10 Steps - from Joining Twitter (Step One) to Planning a Tweeting Strategy (Step Four) to Scheduling Tweets (Step Ten).

It's a basic manual -- a starting guide -- that empowers attorneys with the core information (complete with visuals) they need to become active on Twitter.

Please read and use Twitter Nuts n Bolts 4 Lawyers: A How-To Guide for Law Firms with my compliments.

Oregon Supreme Court Reverses $100 Million Punitive Award Against Philip Morris Based on US Supreme Court Decision Re Punitive Limits

2010-06-28T07:23:00.000-07:00

The $100 million punitive damage award against Philip Morris got reversed by the Oregon Supreme Court last week, with the state's high court returning the case back to the trial court for yet another consideration of how much the tobacco company should pay the family of Michelle Schwartz in punitives for her lung cancer death. (The opinion is available online in pdf format.)

The trial court judge already reduced the jury's initial $120,000,000 punitive award to $100 million; now, who knows where it will end up.

Why this second reduction by the Oregon Supreme Court?

Apparently, the tobacco company's defense argument - that jury instructions failed to stop the jurors from awarding punitives against Philip Morris for cancer deaths other than Michelle Schwartz's - prevailed upon appeal.

This, even though the jury's verdict was totally valid under the law that existed at the time that the verdict was reached and the judgment was signed by the trial judge.

What happened?

It wasn't a case of reevaluation of the court's charge: the defense's proposed jury instructions didn't get approved by the trial court judge, either. This decision is a direct result and reaction to the United States Supreme Court's decision that due process requires limitation on punitive damages.

Problem is, the US Supreme Court didn't give any clear help to lower courts in how they are to determine the due process parameters on punitive damage awards. As Oregon Justice Martha Walters explains in last week's opinion, the United States Supreme Court "... has thrust upon state courts the role of determining whether a jury award of punitive damages exceeds the outer limits that substantive due process allows."

Here's what the U.S. Supreme Court opined in State Farm Mut. Automobile Ins. Co. v. Campbell, 538 US 408, 422, 423 (2003):

"[a] defendant should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business. Due process does not permit courts, in the calculation of punitive damages, to adjudicate the merits of other parties' hypothetical claims against a defendant under the guise of the reprehensibility analysis[.]"

Would the same result happen if this case had been filed in another state?

Gotta wonder if another state supreme court, say Texas, would see things the same way as Oregon in the application of this warning from the Supremes. And, will this result simply mean that Plaintiff's lawyers are going to be much more thoughtful about where they file suit against huge, monolithic corporations like Philip Morris?

Nothing like certainty in litigation.

Obama's Not Gonna Fire McChrystal

2010-06-23T09:16:00.000-07:00

Sure, you gotta wonder about the General letting a Rolling Stone reporter roam around freely for a month.

Is he arrogant, stupid, crazy like a fox (I'm voting fox)? And, it's all about that Rolling Stone article. Not the war, not the General's job performance. It's all about what has been reported in that magazine interview that hasn't even hit the stands yet.

You can read the full text of Rolling Stone interview of General McChrystal in its entirety now. Rolling Stone has wisely already released it as an online publication.

But here's my prediction: McChrystal's not gonna be fired.

Let's see if I'm right.

Federal Control of the Web for Purposes of Homeland Security: Threat of Terrorism or Threat of Revolution?

2010-06-21T13:36:00.000-07:00

In today's news, Homeland Security Secretary Janet Napolitano is pushing for federal control of the internet -- just as the FCC is fighting for control of internet service providers. The Federal Communications Commission just opened comments on whether broadband should be reclassified as a telecommunications system -- and therefore, under the same regulatory control as telephones, etc.

All, apparently in the name of a growing threat of "homegrown terrorism."

In a recent speech to the American Constitution Society for Law and Policy, Secretary Napolitano pointed to foreign terrorists who use the World Wide Web to communicate with their cohorts here in the United States. She is quoted as saying, "[t]he First Amendment protects radical opinions, but we need the legal tools to do things like monitor the recruitment of terrorists via the Internet."

Napolitano pointed to our known foreign enemies -- we are in two wars, of course -- and in this context, monitoring our enemies' ability to conspire with spies (sounds melodramatic, but nevertheless, it's accurate) seems to make sense.

Lots of Homegrown Political Groups Organizing on Meetup.com

However, something interesting occurred the same morning that I was reading about this push to federalize the Internet -- over at Meetup.com.

You know Meetup.com. It's the cool site where people of shared interests coordinate group meetings over the web. Hikers, Dog Lovers, Poker Players, Business Networking Groups -- they're all there at Meetup.com. I was looking for writer groups to join, maybe a book club.

This morning, I was surprised to see the number of groups that have sprouted in the two months or so since I last visited San Antonio's Meetup.com that are politically charged. Some may be Tea Party groups. Some may be other things -- there was one here in San Antonio established to prepare for an inevitable Martial Law.

Going by the name US Martial Law and Financial - Instant Alert System, there are 327 members as of today's date. Think of that. The local Scrabble club has 34.

The Martial Law group is Libertarian, they're apparently supporters of Ron Paul, and is part of the "Constitutionalist" groups numbering 299 worldwide. Now, these groups appear to be Tea Party connected, too, so go figure.

Who Does the Federal Government Want to Monitor?

I'm a native of San Antonio. During the three years I represented kids in the San Antonio CPS courts, I learned a lot about border activities. First of all, I learned that the federal government simply isn't doing that much to protect our border with Mexico.

Here in San Antonio, I've talked with coyotes (professional human smugglers) and Texas Rangers and Border Patrol officers. Here, quite frankly, the consensus is that we feel pretty much on our own - and it's understood that it's not just Mexican Nationals that are entering our state. Nope. All sorts of nationalities are crossing into Texas these days. If they've got the cash, then there's a coyote willing to smuggle them (at great risk, of course).

So, what's the real concern here on internet regulation and control? Is it really the foreign threat? Or is it an internal one?

This agency - or executive branch - desire to grasp the reins of the internet needs to be carefully considered by all of us. Our civil liberties are paramount. Men and women have died, and are dying, for mine and yours.

I'm pondering all this today, and thought I'd share it with you. I'm suspicious that it's my fellow citizens that are the true targets of this intentional violation of civil liberties, not foreigners.

We're a country that revolted in the 1700s and again in the 1800s. Some would say the 1960s came close to a third revolution. How real is a threat of revolution today? It's something to ponder.

Peggy Noonan Compares Obama to Carter, Calls Him "Snakebit"

2010-06-18T12:05:00.000-07:00

In today's Wall Street Journal, Peggy Noonan gives a new perspective on President Obama, "A Snakebit President" -- it's worth the read.

Bob Hope Says It All in "The Ghost Busters"

2010-06-16T10:04:00.001-07:00

Abby Sunderland, 16, Lost at Sea While Sailing Around the World Solo - What's the Legal Implication Here?

2010-06-10T13:49:00.000-07:00

Teen sailor Abby Sunderland, 16, isn't communicating with anyone -- but her sailboat shouldn't be completely underwater according to her brother, since an alarm for that event hasn't sounded. Sixteen years old, Abby is determined to circumnavigate the globe alone in Wild Eyes, her sailboat. (For details on her story, check out the details at SailWorld.com, which includes photos of the sailboat with Abby at the helm.)

Abby turned on emergency beacons before 6AM this morning

However, no one has heard from Abby since early this morning, when Abby was somewhere in the Indian Ocean, closest land being Reunion Island in Madagascar. She turned on a couple of beacons around dawn.

Rescue operations are underway. Boats are headed toward the spot that everyone thinks Abby will be, but they'll need around 40 hours to get there, and seaplanes are also (hopefully) in route.

Family Updating Her Blog With Rescue News

It's a sailboat that the family reports on Abby's Blog today was built with 5 air-tight bulkheads (which will keep the boat afloat even if there has been major damage). Wild Eyes, moreover, was built to right itself if it were tipped over.

And it may well have tipped over, since Abby already reported that the sails have dunked into the ocean waters twice during rough weather that included 25 - 30 foot high waves.

The family is updating folk with posts on Abby's Blog - where Abby was posting regularly until this event. They are asking for prayers and support.

And I will pray for Abby and her family -- but as a lawyer, especially one that represented children for several years, I gotta wonder.

Are the parents legally responsible here in the event that Abby has been lost at sea?

One does have to ask: what the heck is a 16 year old teenage girl doing out there, doing this? No matter her skill level, under the law she is a child.

Legally, these parents are responsible for whatever happens to their minor child (at least they would be in Texas). If something happens to Abby, is there criminal liability?

Danger is Danger

Having represented children in the local's Children's Court in abuse and neglect cases - as their attorney ad litem, where Child Protective Services had become involved in the child's situation - my perception of this event may be different than some others.

Most of the kids that came thru Children's Court were from socioeconomic lifestyles that are at the opposite end of the continuum from the way of life that Abby Sutherland's sailing family enjoys.

However, danger is danger. Putting your child in a life-threatening, dangerous spot is not acceptable: if you do it intentionally, it's abuse; if you do it unintentionally, it's neglect.

The opinion of the Backseat Lawyer is this: no 16 year old teenager should be alone on a sailboat in the middle of the Indian Ocean no matter how cool they think it is, or no matter how lucrative that adventure might be.
For updates: Abby's Blog

Third Party Litigation Funding: Outside Investors Fund Litigation for a Piece of the Pie

2010-06-04T16:01:00.000-07:00

Companies opening their checkbooks to pay for lawsuits? Yepper, looks like Third Party Litigation Funding has crossed over the pond. Attorneys in the United States appear to be following the trend set by litigators in Great Britain and Australia with Third-Party Litigation Funding. Seems there are a couple of companies already offering to finance American business lawsuits in exchange for a cut in the settlement proceeds or judicial award. (They also share the risk of loss if their side loses the case.)

It's reasonable to think that there will be other financiers entering the fray. After all, Great Britian has been testing the waters on this lawsuit funding investment option for several years now (albeit not without controversy).

Two Front Runners: Juridica Investments Ltd and Burford Capital

Juridica Investments Limited explains that its goal is to "make the legal system better for business claims." And its risk analysis is simple: Juridica has funding for business claims only -- it's not interested in personal injury matters, toxic torts, or the like. Ewww.

Burford Capital is a British company that is also ready to invest in business litigation, both in the United States and across the globe. Burford is traded on the London stock exchange as BUR, in case you'd like to check the company out. These aren't fly by night organizations by a long shot.

What are they looking for? In one interview with Juridica CEO Richard Fields, it was suggested that the British third party financier (TPF) was interesting in disputes ranging between $15 and $25 million involving business causes of action.

Can torts be far behind? Just think of the Toyota class action litigation, ponder the inevitable Oil Spill claims .... I'm thinking that the question of when Third Party Litigation Funding enters into the American Tort arena is sooner rather than later.

Texas Death Row's Hank Skinner and the US Supreme Court - What About Post Conviction DNA Testing Under 42 USC 1983?

2010-05-25T13:01:00.000-07:00

On Monday, the U.S. Supreme Court granted the Petition for Writ of Certiorari filed by Texas Death Row Inmate Hank Skinner. It's a case to watch, because it means that the High Court will hear Skinner's argument he has a right to pursue a civil claim, not a criminal one, regarding his continuing assertion that he is innocent of the crime for which he has been sentenced to death.

Savvy Appellate Counsel file Civil Rights Claim

What Hank Skinner's savvy defense attorneys have done is file a civil rights claim which argues that his constitutional rights have been violated because the State of Texas didn't allow him to test evidence that was not tested at trial. He's not arguing this as part of his criminal case (writ of habeas corpus); he's arguing it as a civil matter.

The Fifth Circuit Court of Appeals already denied him, standing on past precedent and opining that any violations of his constitutional rights to (1) due process and (2) protection against cruel and unusual punishment based upon "the defendant district attorney’s refusal to allow him access to biological evidence" for purposes of forensic DNA testing need to be addressed in a petition for habeas corpus, not a petition for writ of certioriari.

What Hank Skinner wants is to test evidence for the absence of his DNA long after the jury trial is over

Skinner wants to test things that were left outside the courtroom during the jury trial that found him guilty and sentenced him to die. Professing his innocence of the crime, Hank Skinner wants the chance to take things in possession of the State of Texas, send them to a laboratory, and have the lab results show his DNA isn't on the stuff and therefore, he wasn't the killer. (If you want to read the background facts of the case, read them in Skinner's own words in a Q and A he answers at the Texas Death Penalty Blog.)

What About the Evidence?

It's obvious from his arguments that not all the evidence found at the scene of the crime was tested for Hank Skinner's DNA. And, of course it's true that DNA testing has exonerated many who have been wrongfully accused in this country (often, thanks to the efforts of The Innocence Project).

Interestingly, the same day that the Supreme Court granted writ on the Skinner case, a Wisconsin County Judge freed William Avery, 38, after DNA evidence showed that Mr. Avery did not kill a Milwaukee prostitute 12 years ago. He had served 5 years of a 40 year sentence.

It's also true that failure to properly test the state's evidence has led to the execution of innocent men. Texas executed Cameron Todd Willingham in 2004; today, there are few that doubt that Mr. Willingham was innocent of the arson deaths of his children, and that faulty testing of the evidence (and failure of the system) was to blame.

What Happened at the Trial?

However, what I'm wondering is what happened during the criminal trial? Was this a defense attorney strategy back then -- to not dig too deep in the State's evidence bag, for fear that it would only reveal more evidence that could be used against the defendant?

Why didn't the defense counsel at the trial do this testing? Was it error? Or was it a conscious decision made in what was considered the best interests of their client at the time?

And, here's why I'm asking - gamesmanship and the jury trial.

1. In future cases, what if criminal defense attorneys make strategic decisions NOT to go into all the things that came from the criminal investigation. Is the Skinner case going to mean that years down the road, a whole new series of appeals will begin, based upon a constitutional need to go back and check that stuff then? Assuming so, then how can we protect against gamesmanship while allowing for legitimate claims?

2. What does this do to the respect of the jury that is inherent in our system? Already, we have seen mediation and other forms of ADR (Alternative Dispute Resolution) cast aside the constitutionally recognized sanctity of a trial by a jury of our peers in civil actions. What impact will Skinner have upon the criminal jury system over the years, if the U.S. Supreme Court agrees with Mr. Skinner's arguments?

Everybody Draw Mohammad Day is Today - Here's Why You Should Support It

2010-05-20T12:50:00.000-07:00

Seattle Cartoonist Molly Norris
has declared May 20th as National
Everybody Draw Muhammad Day!

Comedy Central cut a portion of South Park that was to show Mohammed in a bear costume, after cartoonists Trey Parker and Matt Stone received death threats from a radical Muslim group. Seems that Comedy Central censored everything related to Mohammed in this recent South Park episode, in response to these threats.

In response, cartoonist Molly Norris declared May 20, 2010, as "Everybody Draw Mohammed Day," asking that people upload their own depictions of Mohammed onto her Facebook page (see the poster, there at the right).

And now, liberal and conservative alike (think about that for a moment, because this might be a very big deal) are joining together in support of the raison d'etre behind Everybody Draw Mohammed Day!

The liberal Huffington Post gives us an excellent discussion of why we should all do this in Sam Harris' piece, "Losing Our Spines to Save Our Lives."

Big Hollywood (known as "the conservative voice of Hollywood") not only supports Harris' position ("Our capitulations in the face of these threats have had what is often called “a chilling effect” on our exercise of free speech.") but also points us to Mark Goldblatt's article in the libertarian Reason magazine, "The Poet versus the Prophet,"

At what is hoped to be exemplary fair use, I join with Brad Thor of Big Hollywood to share the excellent work of Sam Harris, who writes:

The controversy over Fitna, like all such controversies, renders one fact about our world especially salient: Muslims appear to be far more concerned about perceived slights to their religion than about the atrocities committed daily in its name. Our accommodation of this psychopathic skewing of priorities has, more and more, taken the form of craven and blinkered acquiescence.

There is an uncanny irony here that many have noticed. The position of the Muslim community in the face of all provocations seems to be: Islam is a religion of peace, and if you say that it isn’t, we will kill you. Of course, the truth is often more nuanced, but this is about as nuanced as it ever gets: Islam is a religion of peace, and if you say that it isn’t, we peaceful Muslims cannot be held responsible for what our less peaceful brothers and sisters do. When they burn your embassies or kidnap and slaughter your journalists, know that we will hold you primarily responsible and will spend the bulk of our energies criticizing you for “racism” and “Islamophobia.”

Our capitulations in the face of these threats have had what is often called “a chilling effect” on our exercise of free speech.

Of course, Molly Norris's efforts did not squeak by unnoticed. She's been the subject of death threats. There's been a movement to boycott Facebook by those unhappy with her efforts. Parts of Pakistan are blocking the Facebook site.

Nevertheless, according to FoxNews' headcount yesterday, over 41,000 Facebook users associated with the event page and a second, similar page was "liked" by over 4400. Interestingly, 58,000 users had joined a Facebook page in opposition to Everybody Draw Mohammed Day.

Mind you, Comedy Central is the same channel that is purportedly preparing to bring us an entire half-hour cartoon that according to the Hollywood Reporter will depict Jesus Christ as wanting to "escape the shadow of his "powerful but apathetic father" and live a regular life in New York City."

As a devout Christian, am I happy about this? No. Will I watch this show? Nope. "Forgive them Father for they know not what they do," applies pretty well here. Here's the difference: no way am I going to be threatening cartoonists with harm here. I'll pray for them, and I'll pray that the show fails. I'll let Comedy Central know they've lost a viewer if it ever airs. It offends me and it's blasphemous. It's wrong for them to do.

I'm not pleased that Jesus is being disrespected and dishonored as well as God Himself, but I trust that God knows what to do about this. God will handle it. God doesn't want me killing cartoonists in His Name.

Regarding free speech, as an American, I'm reminded of Voltaire's famous words, "I disapprove of what you say, but I will defend to the death your right to say it."

I also agree with the liberals,conservatives, and liberatarians whose writings have been referenced here, and join with them: it's time Americans stop accommodating against offense at the cost of Free Speech.

I Think It's Great that Michael Douglas Refused to Sign the Cannes Petition for Roman Polanski.

2010-05-19T09:56:00.000-07:00

People seem to forget that Roman Polanski pled guilty to raping a 13-year-old girl, and not many have read the girl's testimony in that criminal case, which is graphic and disturbing and of course, online at The Smoking Gun.

By running off to France and avoiding jail time, Mr. Polanski is now deemed by many to be worthy of reprieve. It's his age. He's an artist. He's done so much to contribute over all these years of self-imposed exile. In France.

As someone who represented abused and neglected children for three years in the local Children's Court, all this stuck in my craw. Sexual abuse of young girls is not to be tolerated, and by the way - did anyone read what happened here? Really?

So, when I learned that Michael Douglas - a member of Hollywood Royalty - declined to sign a petition on behalf of Roman Polanski, with the publicized remark that it would be "unfair" for him to do so for "someone who did break the law," I was impressed.

After all, Mr. Douglas was in Cannes to promote his film, the sequel to Wall Street, entitled "Wall Street: Money Never Sleeps," and avoiding controversy might have helped his efforts there.

It took courage of conviction for someone - even someone of Michael Douglas' stature in the entertainment industry - to do this. So many in Hollywood appear to be on Team Roman.

Already a fan of Michael Douglas - I'm now going to make sure and see "Money Never Sleeps" and every subsequent film in which Michael Douglas appears. Good for him.

Status of the Polanski Case

Roman Polanski sits in house arrest in Geneva, Switzerland right now. He's fighting to stay out of a California jail. I'm confident his efforts will not be successful.

Recently, a British actress named Charlotte Lewis has come forward with allegations that Mr. Polanski sexually assaulted her at the age of 16. She's represented by Gloria Allred, and she's gonna need it.

Around Half a Million U.S. Charities Losing Tax Exempt Status

2010-05-17T09:35:00.000-07:00

Today has gotta be a very, very bad Monday for lotsa folks that work for non-profits around the country.

That's because last Friday, May 15, 2010, around a half-million charities in this country lost their non-profit status. Well, maybe it's a bad Monday if they're aware of what has just happened to them.

According to the story in last month's New York Times, "One-Fourth of Nonprofits Are to Lose Tax Breaks," by Stephanie Strom, many of these charities may not be aware of their lost tax exemption. Most of these do-gooders operated at $25K in revenue or less, and may or may not have been filing tax forms (because they may not have been required to do so in past years).

USA Today points to organizations like kid's baseball teams and soup kitchens being hit by this.

Fortunately, there's some help here: The National Center for Charitable Statistics has posted an online list, state by state, of nonprofits that may be hit by this deadline. And, they've also got the info on what these organizations need to do in order to prevent their donations from being taxed.

Taxing a soup kitchen? Really????

Toyota Class Action Lawsuit (MDL) - Plaintiffs' Lead Counsel Decided This Week by Judge Selna

2010-05-13T11:15:00.001-07:00

Today, May 13, 2010, a hearing began to decide which attorneys are going to be running the show for the plaintiffs in the big, big class action lawsuit that is gearing up against Toyota Motor Corporation. The court's ruling is expected on or before this Monday, May 17th.

In early April, the U.S. Judicial Panel on Multidistrict Litigation (MDL) already decided that U.S. District James Selna of the Central District of California would be presiding over the consolidated Toyota lawsuits, which some expect will exceed $7 billion (with a b) in damages.

Late last month, Dan Becnel Jr. of the Becnel Law Firm in Reserve, Louisiana, became the first lawyer to formally apply for the job of Top Lawyer. Actually, Becnel has asked the court to approve him as co-lead, or at least a member of the lead counsel committee.

Here in Texas, we would say that Becnel is definitely not a man with a hat and no cattle: he's got the resume to back up that request.

However, so do the other 99 or so trial lawyers who are tossing their hats in the ring. Pros like Mark Lanier of Vioxx fame. Apparently, over 100 attorneys have filed formal applications with the federal court for this job -- with one application exceeding 100 pages in length.

Oh, to be a fly on the wall of that California courtroom today ....

What is the Cloud - as in Cloud Computing?

2010-02-08T12:06:00.000-08:00

Here's a great overview of what the "Internet Cloud" entails, and what it means to you and your business:

Wall Street Journal's "Cloud Computing: What Exactly is it, Anyway?"

If you want more details, but not geek-talk, then try these articles, too:

Wikipedia's article on cloud computing;

The Cloud Tutorial; and

(somewhat geeky) InfoWorld's "What Cloud Computing Really Means."

The Massive Confusion of US Estate Taxes - Attorney Seminar to "Enlighten and Depress"

2010-02-05T12:48:00.000-08:00

This morning's inbox included the following seminar invitation from the State Bar of Texas:

A Look at the Current State of the Estate Tax: Massive Confusion

Approved for State Bar College Credit and Texas Board of Legal Specialization Credit in Estate Planning & Probate and Tax Law.
Live Via Webcast
Thursday, February 11th
10:00 a.m. - 11:00 a.m.
1 hour MCLE credit

With the failure of Congress to do something with respect to the one-year suspension of the federal estate tax and generation skipping transfer tax and the one-year return of carryover basis, followed by a return to 2000 law, we are in a situation of having no reasonable or rational way to advise our clients. Two experienced lawyers (who remember the original carryover basis and generation skipping transfer tax in the Tax Reform Act of 1976, both of which were repealed) discuss the alternatives in how they and others are dealing with this uncertainty and highlighting some issues that are not immediately apparent and other problems if Congress does nothing before 1/1/2011. A fun filled hour guaranteed to enlighten and depress you simultaneously.

Now, mind you - this is an invitation to legal practioners in the field of estate planning to come and listen to experts in this area discuss "a situation of having no reasonable or rational way to advise our clients."

What's going on here? Congress didn't act, even to patch things up by passing a bill that said "everything stays as is until we do something else," so some tax laws died - their effective dates passed on December 31st - and now, we're apparently in a huge, fat mess.

Toyota in the Hot Seat: First it's the Gas Pedal, now it's the Brakes?

2010-02-03T13:35:00.000-08:00

It was only Monday when all this big news was popping up regarding Congressional Committees getting involved, investigating Toyota about its "sudden acceleration" problem.

Just this past Sunday, the New York Times wrote a great article, giving an overview of this gas pedal acceleration problem in both Toyota models as well as Lexus vehicles -- something that's been a known issue since 2002. Known issue, as in stuck accelerators have been causing wrecks and killing people for several years now.

So, as an attorney, I was already expecting to read about new Toyota lawsuits - heck, I was ready to see the television commercials. All about the gas pedal slamming down, think how creative those ad agencies could be ....

And then, today, whattha????

Because today, first I read that the Secretary of Transportation reported before Congress to give his testimony today, and he's said that folk should just stop driving their Toyotas until they can get their dealers to fix them.

(Plaintiffs' lawyers smile like Cheshire Cats when they hear something like this -- and it's even better when there's video of the head of the Department of Transportation telling this to Congress. Oh, the glee....)

But wait. Wait.

Now, I learn there's also some big problem with the BRAKES made by Toyota. Apparently, the brakes in the 2010 Prius hybrid are malfunctioning, too. Ye Gads.

Brakes, gas pedals ... there's gotta be a lot of jokes in all this. And so, so many lawsuits ....

One Smart Fox

2010-01-08T16:28:00.000-08:00

Cuba Gooding, Jr. to play Tiger Woods in a Movie? Cuba, say it isn't so....

2010-01-01T10:47:00.000-08:00

It's being reported that Cuba Gooding, Jr. is being cast as Tiger Woods in a new movie that will focus on the continuing Tiger Woods scandal. This news is showing up on Gooding's IMDB profile as almost a done deal.

Wo Nellie.

My first thought -- which is a bigger fall from grace, Tiger Woods for obvious reasons or Cuba Gooding, Jr. (an actor whose talents I admire) even being MENTIONED to star in this opportunistic crud?

You remember Cuba Gooding, Jr. -- he's the guy who won an Academy Award for Best Supporting Actor in Jerry McGuire, playing the character with the catch phrase "show me the money" ....

Show me the money, indeed.

It's Complicated - Legally Related Movie Review No. 1

2009-12-28T10:18:00.000-08:00

It's Complicated not only has a main character who is a lawyer (Alec Baldwin's role), it deals with lots of stuff that family lawyers will appreciate. Divorce, the kids after the divorce, adulterous liasons, ... you get the idea. You never know what kind of law that Baldwin's character practices, but he's gotta be a trial lawyer.

Family lawyers will probably think this film is a hoot in ways that others won't. Here's what I thought (my background isn't family law) ....

After reading the reviews over at Rotten Tomatoes, I was prepared to like this movie only for its sets and its setting (Santa Barbara) ... but I was pleasantly surprised. Let's get this out of the way -- Santa Barbara is a beautiful backdrop and that house is fantastic, altho the garden was definitely Hollywood magic. No weeds, uniformly red and round tomatoes, etc.

This movie is funny. I laughed out loud on several occasions, as did the rest of the audience. I don't know that it's worthy of a best picture Oscar (pa-leeze! I've seen some online chatter suggesting this), but if you are looking for a movie akin to Something's Gotta Give and are wary of being disappointed by another Last Chance Harvey, rest assured. "It's Complicated" is worth the price of admission, lawyer or not.

Go.

Melinda Duckett Family Wrongful Death Lawsuit Against Nancy Grace and CNN -- It May Be a Dog that Will Hunt

2009-12-07T10:38:00.000-08:00

Here in Texas, and I suppose most of the South, lawyers will talk about a weak argument as being a "dog that won't hunt." And there was a time after the 2006 filing of a wrongful death action against CNN and Nancy Grace by the family of Melinda Duckett where that was exactly what I was thinking: it's a dog that won't hunt. Things may have changed ....

Backstory - What's the Basis for the Lawsuit?

On September 7, 2006, Nancy Grace interviewed Melinda Duckett over the telephone as part of her continuing television coverage of the search for Melinda Duckett's missing child, 2 year old Trenton. (A transcript of the interview, as it was aired on September 8, 2006, by CNN is still available online.)

Between the time of the interview and the airing of the Nancy Grace show, and with her child missing less than two weeks, Melinda Duckett wrote a suicide note and then shot herself with her father's gun at his home. (Her suicide note has been published online.) CNN aired the interview with a notice posted on the screen that Duckett's body had been found at the home of Bill and Bethann Eubank, her adoptive parents.

The Lawsuit

By November 2006, the Eubanks together with the personal representative for Melinda Duckett's estate had filed suit in state district court in Lake County, Florida, for wrongful death. In their petition, the Eubanks sue as parents of Melinda, grandparents and next friend of Trenton, and parents and next friend of Melinda's minor sister. Defendants are CNN, Nancy Grace personally and as an employee/agent of CNN, and Joshua Duckett.

How to prove the "but for"

Reading over the pleadings, it appears key that the Plaintiffs must be able to prove causation in order to win. In other words, they have to provide admissible evidence that proves by a preponderance of the evidence (that's less than beyond a reasonable doubt but more that 50%) that but for Nancy Grace's interview, Melinda Duckett would not have committed suicide. Considering that the suicide occurred before the airing of the interview, actual public response to the interview would not be a consideration -- although if it could be proven, Melinda Duckett's state of mind and perception of the results of that public interview being aired on CNN might well be.

That's a big fact pattern to be able to support with solid evidence. Big, big, big. I didn't see how it could be done, but my hat was off to the Florida attorney who filed the case. Kara Skorupa was reportedly doing this case for the Eubanks pro bono - for free. Good for her.

Why I think the Case against Nancy Grace got stronger ....

In 2007, the case was moved from a Florida state court into a federal district court based upon a jurisdictional issue: the parties were from different states, and Florida's state jurisdiction couldn't hold here. Of course, the federal court will nevertheless be required to apply Florida law. Whether or not Florida's wrongful death statute has been violated is still the key issue.

And federal district judge William Hodges subsequently denied the inevitable motion to dismiss the case under Federal Rule of Civil Procedure 12(b)(6) filed by Nancy Grace and CNN - although Joshua Duckett was dismissed from the suit.

Reading this, I'm thinking that the bucket is holding water so far. Now they are going to have to fight some discovery fights. Kara's case is surviving. Don't know that it's winnable, but it's held its own in federal court.

Now it's 2009. And obviously discovery has been happening because we have new media reports: a Harvard professor has formally opined that Nancy Grace is responsible for the death of Melinda Duckett. And in doing so, the 'but for" / causation prong of the Plantiffs' case has suddenly found support.

The report of Dr. Harold J. Burslajn has been filed in the case's federal court record in Ocala, Florida. So far, I haven't been able to find the complete report published online.

I did find this link to Dr. Bruslajn, however, http://www.forensicpsych.com/, which makes me think that the prosecutor is going to tee up a challenge to Dr. Bruslajn at some point. Testifying experts are subject to their own standard of review before their opinions are brought before the factfinder and I'm wondering if the state attorney will win a fight that Dr. B fails under scrutiny. If the psychiatrist succeeds, which I'm going to assume that he will (he's from Harvard, after all), then I think we're gonna see Nancy Grace and CNN either settle or face a jury.

Because now I think this case is a dog that will hunt, that it can survive a summary judgment challenge at this juncture, and we're talking settlement or jury verdict here.

Nancy's a prosecutor. Wonder if she'll trust a jury? Jenny Jones did -- and she was faced a $25 million judgment based upon a negligence cause of action (the jury's verdict was overturned on appeal).

The Jenny Jones Analogy

Sure, you can draw distinctions between Jenny Jones' case and Nancy Grace's situation. Different causes of action (negligence vs. wrongful death/intentional infliction of emotional distress), different crimes (murder vs. suicide), different time lines (two days vs. a few hours), actual airing of the event on national television prior to the death (televised show vs. nothing shown).

And, yes, Jenny Jones won her case -- albeit on appeal when the state supreme court refused to reconsider the appellate court's overturning of the jury's determination. Still. You gotta wonder -- where is Jenny Jones now?

Must See Video: Dogs Greeting Soldier Coming Home From 14 Mths in Iraq

2009-10-27T19:45:00.000-07:00

I'm late in the game here, lots of folks have been sharing this video for awhile. I found it on Mental Floss, and I discover that Andrew Sullivan posted in a year ago.

Still, how can NOT I share it here, in case you haven't seen this?

God bless our soldiers and God bless dogs.

I love this video.

I Rank Within Top 3 in Google Search Results for My Blog Posts and the Search Results are in the Millions

2009-08-26T07:08:00.000-07:00

Yesterday, I went roaming thru my blog post stats and found some very nice results. Like I'm hitting with posts in the top 3 out of millions in Google search results, and with posts that have staying power (they're old and still hitting hit.) So, please forgive my intrusion into the usual theme of this blog, but I'm republishing my post from yesterday on my Writer-Lawyer blog here (and on Everyday Simplicity and Rebecca Kennedy, too) as an experiment - to see what happens, stat-wise ....

This afternoon, I stopped to check the stats for my personal blogs and found some nice results. I do this a lot, but today I actually stopped to make a little tally.

I've listed some of them here, and these searches are accurate as of today's date - using only Google. I have results in Yahoo, Bing, Ask, AOL, etc. but I chose only to check Google Search Results and only through the past couple of days results as recorded by StatCounter. For some, I saved the search results in OneNote, but this got to be time-consuming so I didn't do this for everything on the list.

And while I write professionally for several blogs/blawgs, these results are only for my personal blogs - as well as a little tidbit at the end where I blogged for a couple of friends and kept track on StatCounter for them, too. No waiver of client confidentiality here.

The biggest search result?
2 out of 1.75 billion for a two month old post

1,750,000,000 and my post is number two, after being published in June 2009 (see no. 1 under Backseat Lawyer).

The second largest search result?
3 out of 77 million for a 3 year old post

77,300,000 and my post is number three, after being published in August 2006 (it's three years old) (see no. 5 under Rebecca Kennedy's Blog).

Oldest post still getting strong results?

The 2005 post that still ranks no. 7 out of 23,400,000 -- see no. 4 listed under Rebecca Kennedy's Blog.

Google Search Results - Backseat Lawyer

1. my post is no. 2 out of 1,750,000,000 (yes, that's billion) for the search "how will michael jackson death affect his life insurance pay out"- I published it on 06/28/09;

2. my post is no. 1 out of 5,120,000 for the search "casey anthony employment universal"- I pubished it on 08/09/08;

3. my post is no. 8 out of 2,620,000 for the search "billings murder fla" - I published it on 07/23/09;

4. My post is no. 5 out of 1,320,000 for the search "jose baez", published on 01/15/09; and

5. the same post regarding "jose baez" is no. 3 out of 894,000 for the search "jose baez bio" - I published it on 01/15/09.

Google Search Results for Rebecca Kennedy's Blog

1. my post is no. 3 out of 49,700,000 for the search "thriller vs. mystery"- I published it on 11/24/06;

2. my post is no. 1 out of 33,200,000 for the search "how to write a book in six weeks"- I published it on 09/16/06;

3. the same post as above is no. 2 out of 28,300,000 for the search "how to write a book in two weeks"- I published it on 09/16/06;

4. my post is no. 7 out of 23,400,000 for the search "book length in words" - I published it on 12/14/05; and

5. my post is no. 3 out of 77,300,000 for the search "what is isbn?" - I published it on 08/12/06.

Google Search Results for Everyday Simplicity

1. my post is no. 3 out of 30,400,000 for the search "cleaning burnt pans" - I published it on 01/11/06;

2. my post is no. 2 out of 19,200,000 for the search "tips for surviving a depression" - I published it on 11/28/08;

3. my post is no. 1 out of 1,200,000 for the search "coca cola made with sugar" - I published it on 04/10/09;

4. my post is no. 2 out of 1,480,000 for the search " becoming an ex-patriate" - I published it on 01/16/06, and if you take out the hyphen to create the word "expatriate" in the search, then the post becomes no. 2 out of 640,000;

5. my post is no. 4 out of 4,300,000 for the search "products made from petroleum" - I published it on 06/15/07.

And I did a quick check for other blogs ....

Google Search Results for Jean Jennings' Blog
(Jean's blog is dormant but it's still getting some great results for her.)

1. my post is no. 2 out of 5380 for the search "Bexar County Jury Duty," and no. 4 out of 59,200 for "San Antonio Jury Duty" ... the post was published 07/07/08 and while these aren't high volume searches, Jean gets steady traffic from a targeted group -- she's a practicing criminal defense/CPS attorney in San Antonio, Bexar County;

2. my post is no. 2 out of 3,220,000 for the search "san antonio jail visiting hours" - published 08/02/08, another targeted group for Jean's local criminal defense practice; and

3. my post is no. 6 out of 2,510,000 for the search "search warrant examples" - published 08/09/08.

Google Search Results for Judge Tom Rickhoff's Blog
(Judge Rickhoff's blog was recently reactivated after being dormant for an extended period of time)

1. my post is no. 1 out of 458,000 for the search "Not Forgotten Coalition" - published 04/25/06.

Monday, August 17 - Prepare for Delays Getting into the Courthouse: the Keller Impeachment Starts at 9:30 am

2009-08-16T19:46:00.001-07:00

Tomorrow morning, the impeachment trial of Chief Justice Sharon Keller of the Texas Court of Criminal Appeals will start at 9:30 am in the courtroom of Judge David Berchelmann.

A friend just sent over a "tweet" -- there are protesters planning on demonstrating on the courthouse steps tomorrow morning (they are estimating their numbers at 1900) ... and of course, we should all assume there will be the usual news crews and media trucks.

So, if you've got a hearing or jury duty or a job to do tomorrow morning at the Bexar County Courthouse, best to plan ahead.

We've already got some confusion with the construction next door at the Justice Center, you know.

Looks like tomorrow may be quite a Monday....

Byrd and Melanie Billings Murder in Florida: When Do the Florida Sunshine Laws Kick In? How Does Billings Case Impact the Casey Anthony Defense?

2009-08-12T12:22:00.001-07:00

A Florida Grand Jury has just indicted the seven men whose mugshots we've already come to recognize as the "Ninja Warriors" arrested for the murder of Byrd and Melanie Billings. Each of the men -- including the minor, Rakeem Chavez Florence (16) -- have been formally charged with two counts of first degree murder and one count of home-invasion robbery. With this, the death penalty is apparently still on the table.

(The other defendants are Wayne Thomas Coldiron (41); Leonard Patrick Gonzalez, Jr. (35); Leonard Patrick Gonzalez, Sr. (56); Donald Ray Stallworth (28); Gary Lamont Sumner (30); Fredrick Lee Thornton (19).) It's alleged that the younger Gonzalez was the sole shooter in the case.

Florida Seeks to Hike Up the Bond on Long-Wiggins

Today, the Florida prosecutor is asking the court to increase the bond on the sole female defendant in the case thus far -- Pamela Long-Wiggins. She's charged as an accessory after the fact and she's out free on bail.
Apparently the state attorney -- I think they're called "state attorneys" in Florida, not DAs like here in Texas -- is wanting to up her bond to $500,000. Pamela's also been arrested for bigamy charges, and there are reports she's being investigated for food stamp fraud, too.

Billings Family Confirms Second Safe in the Home

Today, the Billings' family attorney released a presser that there WAS a second safe in the house but it had less than $200,000 in it -- far less than the millions of bucks that was going around in rumors.

Okay. That's what I've read today (I also watched Dateline last night, nothing new there -- if you've been reading Websleuths or Ricksblog, that is.) ... and here's what I'm wondering:

When do the Florida Sunshine Laws impact the Billings case to the extent that they did in the Casey Anthony case?

I can't find a clear answer to this in my web searching. Sure, I found details on the Florida Sunshine Laws themselves. And, I found lawyers that are ready to help journalists fight to enforce the Florida Sunshine Laws. I also found discussions by editors on just how great the media thinks the open records legislation in Florida is for them.

Still, all that being considered, we are not seeing the detail that we saw in the Anthony case. Not at all. The motions, warrants, etc. that are filed in the public record are being scrutinized by the media, the bloggers, the forums, etc. Likewise, the information (press releases, interviews, etc.) from the Billings family and others -- including persons of interest like Henry "Cab" Tice.

But we're are not seeing the investigation file content. No videos or transcripts of interviews by law enforcement. No inventories. Nothing but the initial footage from the Billings' security cameras that was released as the police undertook their manhunt shortly after the killings.

Isn't that interesting? I think so.

Where are the Billings "document dumps"?

Here in Texas lots of attorneys have been jaw-dropping shocked at the amount of information to which the public (read that potential jury pool) has been given access in the Anthony case. Shocking to us, and from what I read and hear from my bretheren in other less sunny jurisdictions, shocking to the point of absurd to lawyers in other jurisdictions, too.

However, here's something to ponder. If the Florida Sunshine Laws apply across the board to all criminal cases (as I think they do, based upon what I've read) then why aren't we seeing lots of state investigatory details about the Billings case by now?

What About Billings as it compares to Anthony -- and Anthony's Trial by Media argument?

And, if there are not big "dumps" in Billings -- as there have been in Anthony -- are we seeing a blatant constitutional defense for Casey Anthony on being tried in the media?

Truth be told, I followed all the Anthony stuff as it was released. I've watched the video interviews, I've read the transcripts, etc. However, as an attorney I wondered as I wadded through all that info (and there's a amazing amount of it) what the Florida attorneys would do with all the exposure.

And, as an attorney I'm not surprised that we're not seeing lots of output from the Billings investigators. That makes sense to me, and I have been favorably impressed with the local authorities in the Billings case. Fast to move, fast to apprehend, they seem professional and astute.

Still, comparing these two high-profile media cases, in the same state, occuring during overlapping time periods, does make one pause. I don't know that I'm asking for Billings to turn into Anthony here, as much as I have that inquiring-minds-want-to-know curiousity.

What I'm pondering is how Billings juxtaposed with Anthony impacts not only the Anthony case, but tells us about the media overall. Lots to think about here.

Byrd and Melanie Billings Murder in Florida: My First Impressions

2009-07-23T09:37:00.000-07:00

Those of you reading regularly know that I practice in the local Children's Court, so I was especially interested in the first few new stories on the murder of a couple who had adopted so many special needs kids. Byrd and Melanie Billings -- didn't they look nice in that big family photo?

1. They adopted, not just fostered. They weren't getting those monthly foster care checks, assuming that Florida runs like Texas. Nope. They adopted those kids as their own. Maybe they get some financial support (over and above Medicaid) because the kids are special needs. But they're not being paid by the state to care for them in the same way that they would be as foster parents. Big points in my book.

2. And what about the story that they sued the family member for child support? I'm not seeing a problem here. The parent is supposed to be financially responsible for his or her offspring. If he/she is well-meaning but chaotic, using the system to get an automatic withdrawal out of their paychecks may solve lots of problems. I'm not going to assume that this was an acrimonious lawsuit without knowing more because it may not be the case.

3. Melanie's MySpace comment that these kids are "perfect." This may seem like a bizarre comment to some, even denial of the obvious -- but it's not that strange to hear from someone who has been around special needs kids. There is an innocence, and a joy - yes, a joy - that these folk possess that is quite amazing. They are just so intrinsically GOOD, for lack of a better phrase. You feel better for being around them. Knowing that Melanie Billings felt this way about her kids tells me a lot about her. She knew the wonderfulness of these children, appreciated it. And, knowing that -- and knowing what these kids can be like to be around -- I know that Melanie Billings spent many happy days in that home. She considered herself blessed, and she was.

4. Staying in the House? What a horror for those kids to have been home that day. Horror. My first thought was to wonder if those that loved them would ever want them to return to the scene of the crime, literally. Then I pondered for awhile, and considered that this house was built with special needs in mind. Look at the wide sidewalks. The pool (therapy here, not just fun and games). I'm assuming there are railings and wide hallways (to accommodate wheelchairs) and other specialized construction within this dwelling. And, there are a lot of good memories, too.

So, when I learned that the kids would be returning to live in the house, after new carpeting and other alterations had been made, I thought it was a good idea. Sad, yes. But this is their home, and the security of memories, and tradition, and the special accommodations it provides, may be very beneficial to them. Move them someplace else, it's another big, big loss. Good for Melanie's daughter to make this call -- you know it can't be easy for her, to live in the home that her mother died in. That's a selfless act.

Okay. First impressions. More later.

Ed Freeman Is a Name I Want To Know

2009-07-20T08:34:00.001-07:00

A friend sent this to me by email just now, and I thought it would be a good idea to post it on the web.

While Ed Freeman died last August, not in the same time frame as the Michael Jackson media frenzy (which is what I thought at first, upon reading the email), I still like the idea of stopping a minute to think about Ed Freeman.

It's never a bad thing to ponder courage, and respect a hero. And, yes, it is sad that his passing did not get more media coverage -- something else we can all stop and ponder today for a bit.

For more on Ed Freeman, check out his Wikipedia bio. His obituary (with photos) is here. Now, here's the email I was sent:

"Ed Freeman

You're an 19 year old kid. You're critically wounded, and dying in the jungle in the Ia Drang Valley , 11-14-1965, LZ X-ray, Vietnam . Your infantry unit is outnumbered 8-1, and the enemy fire is so intense, from 100 or 200 yards away, that your own Infantry Commander has ordered the Medi-Vac helicopters to stop coming in.

You're lying there, listening to the enemy machine guns, and you know you're not getting out. Your family is half way around the world-12,000 miles away-and you'll never see them again. As the world starts to fade in and out, you know this is the day.

Then, over the machine gun noise, you faintly hear that sound of helicopter, and you look up to see an un-armed Huey, but it doesn't seem real, because no Medi-Vac markings are on it.

Ed Freeman is coming for you. He's not Medi-Vac, so it's not his job, but he's flying his Huey down into the machine gun fire, after the Medi-Vacs were ordered not to come.

He's coming anyway.

And he drops it in, and sits there in the machine gun fire, as they load 2 or 3 of you on board.

Then he flies you up and out through the gunfire, to the doctors and nurses.

And, he kept coming back.13 more times.and took about 30 of you and your buddies out, who would never have gotten out.

Medal of Honor Recipient, Ed Freeman, died last Wednesday, March 25th, 2009 at the age of 80, in Boise, ID.May God rest his soul...

Medal of Honor Winner
Ed Freeman!

Since the Media didn't give him the coverage of Michael Jackson, send this to every red blooded American you know. THANKS AGAIN ED FOR WHAT YOU DID FOR OUR COUNTRY. RIP"

Ann Coulter vs. Peggy Noonan on Sarah Palin. Catfight!

2009-07-11T08:28:00.000-07:00

Just read this column by Peggy Noonan and then read this column by Ann Coulter.

The topic in both articles: Sarah Palin.

You know what I'd like to see?

Ann Coulter and Peggy Noonan face to face. On TV. Live.

Yeah.

The Troy Davis Case Worries Me

2009-07-08T16:12:00.000-07:00

Troy Davis sits on Death Row in Georgia, and he may well be executed by the State of Georgia ... which to someone like me, sitting here in Texas, isn't that big of a news event. Sorry, but you know what I mean. I'm in TEXAS.

Except here's the thing: Troy Davis may well be innocent, and he's asking for a new trial -- with the U.S. Supreme Court putting off a decision on granting writ until next fall.

Innocent? Well, there's no physical evidence. Seven of the nine witnesses have recanted their testimony, and one of the two still holding onto Troy as the shooter is, according to rumor, the man that might well be the real killer.

Sounds like a Lifetime movie in the making.

So, no forensic evidence. 7 of the 9 eyewitnesses are saying nevermind. On the other hand, death.

I'm voting new trial. Hope the Supremes do too.

For more info, check out Free Troy Davis.

Judge Samuel Kent Resigned Again

2009-07-06T16:08:00.000-07:00

Well, when the Senate guys showed up to serve a summons on Judge Samuel Kent, there in prison, he had something for them, too. A short little note that said he resigned effective the end of June.

Nixed that prior resignation letter where he resigned in 2010.

So, now I'm wondering two things: will Congress blow off the impeachment proceedings since he's quit? Will they do something else - just because some are pretty angry at Judge Kent's "strategies", much less the actual bad acts he's admitted to as part of his plea bargain?

And, second: does Judge Kent have a book deal? Seriously. I wonder if he's got one, or at the least, an agent working on one.....

Sarah Palin Suit Against the Media for Defamation: WOW

2009-07-05T14:38:00.000-07:00

Wow. Sarah Palin's attorneys have put several news organizations (and at least one blogger) on notice that a suit for defamation might be forthcoming if things continue on certain stories regarding the "real" reasons that Sarah Palin resigned as governor of Alaska.

Here's a copy of the lawyer letter if you want to read it.

Now, I find this fascinating. Because, if it's correct -- as the Lt. Gov. has said -- that Gov. Palin has resigned because spending $2,000,000 of Alaskan tax dollars and $500,000 of her family's own cash in defending against ethics challenges (which have proven to be meritless) was the line in the sand ... well.

If I were her attorney, I could see advising her that one of her options would be to sue for defamation, to get some of that money back. If you're defamed, there's legal recourse for the damages you have sustained.

It Wouldn't Cost That Much

Just think of it. IF Palin sues all these media outlets, most of the discovery has already been done because of the investigations that have already transpired, and she's got their published words to use in her prima facie case.

The defamation suit, at this juncture, wouldn't cost her that much. And, if I'm reading things right today, they may already have proven most everything up. Fascinating.

Sarah Palin quitting her government spot and now suing as a private citizen for defamation? Wow. As a lawyer, I think I love this idea. This is brilliant.

Wondering About the Defenses if Truth's Not Among Them

Wondering about defenses now. Are there immunities when you're reporting about a government official? Where do those immunities, if any, stand once the resignation has been given? And, are there really immunities if it is true that you are printing info that you know, or should know thru due diligence to be untrue, even if a government official is involved? Does falsehood get a free pass here? Hmmmmm.

Would the State of Alaska Have A Suit for Damages Too?

And, hey: could the State of Alaska find a cause of action here, too? Get some of that $2 million back as damages? Have to ponder that one. Cuz I bet if I were an Alaskan, and I just heard that $2 million tally, I'd sure be happy to have some of that money put back in the coffers. Especially in this economy.

Very, very interesting.

Michael Jackson's Death - What About the Life Insurance Policies?

2009-06-28T12:53:00.000-07:00

There's more and more chatter online and off regarding Michael Jackson and his surprising and untimely death. Talk about his huge amount of debt, talk about what's been done to protect the children's inheritance, talk about his drug use, and talk about the leeches that hung around him.

I've read about the London tour involving 50 gigs, when Michael Jackson was originally told there would be only 10. I've read about his nixing an offer to be paid over $2 million to entertain at the party of some Russian rich guy.

But, as a lawyer, here's what I know and I'm not hearing a thing on this issue: life insurance policies exist outside the Estate of Michael Jackson; they are contracts that pay directly to the beneficiary of the policy.

Why aren't we hearing about life insurance policies in all this talk?

I find it very, very curious that we're not hearing anything about these policies and I'm betting that there are several out there. I'm betting SONY had one on him. I'm betting the London promoters had one. I'm HOPING there is one or more in place for his children.

If MJ was too frail or ill to perform in London, then it's scary to think that life insurance might have made him more valuable dead than alive.

And, I'm also wondering that if the nasty rumors are true, that MJ was so ill and so frail that he could not have performed in London, then what impact those life insurance policies have upon a motive in his death. If there are significant policies out there, MJ may have been worth more death than alive and someone should be investigating this concern.

Complications: suicide (and there's been talk of that) would exempt the payout by the life insurance carrier -- unless enough time had passed since the policies had been created (for example, a policy may pay provide benefits on a suicide if the policy has been in effect for over 2 years at the time of death). And, if the insurance carrier found that the beneficiary contributed the death, then they would not pay out benefits.

Where are the insurance carriers' teams of investigators?

So, why aren't we hearing about this life insurance policies? And, why aren't we hearing about the investigators for the insurance companies being involved in the current investigation? Are they being that subtle, or are there no policies?

Fifth Circuit Approves Judge Kent's Impeachment and Denies His Disability Claim

2009-05-28T16:05:00.000-07:00

Wow. Okay.

First, the backstory. Judge Kent's going to jail for 33 months for sexual assault.

Galveston Federal District Judge Samuel Kent becomes the first federal judge in US History to be formally accused of sex crimes, and he ends up taking a plea on obstruction of justice charges on the eve of trial last February.

Sentencing was this month, and Kent got 33 months in prison for his sexual assaults on two former courthouse employees, and he must turn himself in to the authorities on or before June 15th.

That was bad enough. Then came his claims of disability.

After first denying any wrongdoing, and looking forward to his day in court, only to cop a plea, Judge Kent (through his attorney, Dick DeGuerin) next argued that he suffers from a mental health disability that justified his continued receipt of his judicial salary (as well as other benefits) -- a monthly amount I've seen ranging between $160,000 and $180,000 in various newstories. (I haven't taken the time to go research this myself, but his salary and benefits are public record.)

(Why this disability argument? Because Judge Kent isn't even 60 yet, and he's too young under the law to flat out retire and get benefits. If he doesn't qualify for a disability, he gets squat.)

Back at the ranch .... The first argument that I heard was that the disability had something to do with anxiety or depression. I wondered about that, thinking that most anyone in Judge Kent's position would be anxious and depressed ... but did this count as sufficient disability to merit the benefits?

Guess others were wondering this, too, because I then heard about a second argument. Judge Kent suffered from bipolar disorder, and this would be the basis of his request for disability benefits.

Well, now. That's interesting. It was also interesting to me how there was not any discussion of any bipolar disorder during the coverage regarding the sexually sordid allegations and subsequent charges against Judge Kent prior to the taking of the plea.

An Undiagnosed Bipolar Federal Judge on the Bench? What are the ramifications?

And, what would be the impact of a federal judge rendering substantive decisions from the bench, while suffering from an untreated bipolar condition? Wow. I could almost hear the wheels of appellate attorneys spinning ....

Fifth Circuit's Chief Justice Edith Jones Makes the Call

Well, now there seems to be an end to this road. The road has been cleared for Judge Kent's impeachment and the Fifth Circuit has shut the door on this disability business.

The answer is no. No disability benefits for Judge Samuel Kent.

Here's Chief Justice Edith Jones' letter to Defense Counsel Dick DeGuerin, where the disability benefits are formally denied.

Here's the Judicial Council for the Fifth Circuit's actual decision regarding the impeachment, signed by Chief Justice Edith Jones, if you would like to read it.

For more details, read the National Law Journal coverage of today's events by Tony Mauro.

Wow. Let's Watch What Happens At Notre Dame University This Weekend

2009-05-12T11:27:00.000-07:00

Let's get this straight right now: I'm a Christian, but not a Catholic. And, I'm watching with great interest what will happen this weekend during the commencement exercises at Notre Dame University ... what's happening?

Read Father Frank Pavone's Explanation of the Situation

Well, I think that Fr. Frank Pavone can explain that better than I can, over in his article at Catholic.Org -- read it here -- but in a nutshell, there is a growing movement among graduating students of this Catholic University to forego attending their graduation because President Obama has been invited to give their commencement address.

And President Obama's position on abortion is in direct conflict with the pro-life position of the Catholic Church.

So, lots of students aren't going. Because of their value system. Because of what they believe. (Read their press release here.)

Applauding Integrity

And I'm glad. I think it's time to start remembering what integrity is in this country and applauding integrity when you see it.

Integrity is the adherence to one's values, even if self-sacrifice is involved (and it usually is).

It is in direct conflict with insincerity and dishonesty - things all too common in our culture today, where greed and materialism have been so acceptable.

I hope we see a lot more of it. And I think that even if you're not a believer in Christ or if you're not pro-life -- you can get behind the idea that respecting integrity is a good thing.

Commending Integrity

It's a good character trait to have, and I commend these graduating seniors for standing up for what they think is right.

We all need to do this: stand up for what we think is right, especially in times like these.

For more information, go to NDResponse.Com.

Taking a Stand

And, because I don't want to be waffling here, I'm taking a stand here, too. I do not support abortion. I think that abortion is wrong.

I'm not inviting debate. I'm not trying to convince you of my position: I am simply informing you that I have one. I've got an established value system to which I attempt to adhere at all times. I try to live with integrity.

I support these seniors in their position, not only because I agree with them on this issue, but I also agree with them that it is the right thing to do -- to not attend, rather than to go along to get along and attend, to not make waves. Good for them.

Wisconsin Allows Cops to Put GPS on Your Car and Track You: Even if You're Not a Suspect, and Without a Warrant

2009-05-11T06:50:00.000-07:00

Hopefully, something will be done about this, but don't expect the Wisconsin judicial system to help. The state's appellate court has approved the use of GPS tracking systems by law enforcement, where the cops place GPS trackers on cars -- without a warrant, and without anyone being labeled a suspect.

In Wisconsin, apparently, the cops can track anyone, anytime - just because they want to do so. Yes, you read that right. In Wisconsin, right now, any motor vehicle on the road could have a GPS tracker on it - legally - even if the owner doesn't know it, and even if the owner is not a suspect for any crime.

What about the right to privacy? What about due process prohibitions against illegal search and seizure?

Wisconsin appeals court passes the buck to the State Legislature

The Wisconsin 4th Court of Appeals couldn't help -- they heard the case, and decided it wasn't a violation of the 4th Amendment (which prohibits illegal search and seizure). Their idea was that as long as the car went along in public places, where the cops could follow it, then there wasn't a problem - the GPS wasn't telling the cops anything more than they'd know anyway from physical surveillance.

Except that the car in question did go into private places. And, except that the placement of a devise on someone's personal property without their permission - for the purpose of watching them - is wrong, without due process.

Now, to be fair, the Wisconsin court did voice some concerns here. They wanted us to know that they didn't like what they were doing. But instead of doing something themselves, they suggested that the Wisconsin Legislature do something.

Is this it? Let's hope not.

Of course, there's a lot of brouhaha about this decision. The ACLU is arguing that this violates privacy laws, for one thing. Maybe we haven't heard the last of this. Hopefully, that Wisconsin appellate court decision can be reviewed by the state's high court (I haven't researched the scheme of things in Wisconsin's judicial system to know what court grades the papers of the 4th Court of Appeals in Madison, Wisconsin.) And, there's always federal court, you know....

This law getting this far is troubling.

Meanwhile, this is a valid law on the books. And, I think we should all be worried just because it's made it this far.

It doesn't seem like rocket science to me that it is just plain wrong for a cop to sneak up to a car and put a GPS tracker on it, just because he wants to do so. And to do so without a warrant -- which is in essence, a judge double-checking and approving the cop's desire to invade a person's right to privacy because of a valid legal interest. Plus, to do so without the person being labeled as a suspect of a crime.

What made these cops think this was okay? What made these courts let this scoot on by?

And, here in Texas -- wouldn't we just love this? What with all our gunrunning, human trafficking, and drug distribution problems down here?

Heck, why don't we just sell cars with power steering, anti-lock brakes, and a GPS tracker for the cops built right it? Oh, yeah, we do.

If you have a navigation system, like OnStar or TomTom in your car, you're already trackable now. Same goes for your smartphones. Of course, right now, the cops need a warrant to gain access to that personal information - they've got to have paperwork to tote over to the OnStar folks or the TomTom folks, to gain access to that information. But they can do it, technologically. And, with this Wisconsin precedent, it's really just a small step from needing a warrant to ... well, NOT.

Scary stuff, isn't it?

How Can Jose Baez Be Lead Lawyer in the Casey Anthony Case -- No Death Qualified Attorney Has Been On the Record Since Terry Lenamon Left

2009-05-04T13:07:00.000-07:00

Back in January, I was flabbergasted when I learned the limited experience that Jose Baez had -- and here he was, lead counsel in the Casey Anthony case. Back then, I wondered about ineffective assistance of counsel claims (you can read that post here).

Then, today, I learn that Jose Baez is filing a Motion to Transfer Venue - and his spokesperson has told the media that afterwards, he will have a press conference. Of course he is.

Meanwhile, fellow "Dream Team" attorney Linda Kenney Baden has been up in New York City, appearing on the Today Show and telling everyone how the local media has been sooooo biased, but the national media has been so NOT.

Please. Does this woman watch Nancy Grace? I do. Most folk at Nancy Grace aren't discussing the issue of whether or not Casey Anthony killed her daughter, they're talking about how strong the state's case is and whether or not Casey Anthony will get the death penalty - and they're looking carefully at all the new document dumps as they occur. (There was another one last Friday.)

There's No Big Diff in the Media Coverage

My first point: there is no significant distinction to be made between the local media and the national media in how the Casey Anthony case is being portrayed. That's hooey.

And, now, my second point. And it's much bigger.

Terry Lenamon Posted Florida Rule on Death Penalty Qualified Attorneys

I was over at Terry Lenamon's blog (he was the attorney last fall who argued for Casey Anthony and got the death penalty off the table for her) and he's building a big blog all about the death penalty -- both in Florida and across the country. Lots of stuff about capital punishment.

(As a side note, Lenamon's picked up on our illustrious Chief Justice Sharon Keller over here, but that's a different post for a different day. We're all so very proud here in Texas.}

And Terry Lenamon has put the entire Florida rule on what attorneys can represent defendants who are facing the death penalty. Appointed or Retained. And, Florida is pretty darn strict on which attorneys get to take on this job.

And here's the big scoop that I'm shocked no one is discussing....no one on the Casey Anthony Legal Team Meets the Florida Legal Standard

There is absolutely NO ONE on the Casey Anthony legal team, as far as I can tell, that has these qualifications. Lenamon did, but he isn't currently on the "Dream Team."

Neither Jose Baez or Linda Baden meet this statute. Go read it for yourself.

I think this creates a great argument that there is a Due Process violation here.

Think about it. Jose Baez filed a major request with the court today -- a venue challenge. Big deal in any case, MAJOR big deal in this one. Does he have legal authority to act? Looks questionable, given the statute.

Is this ineffective assistance of counsel? Mebbe. Bigger argument, I think: Casey Anthony's due process rights are being violated if she's been represented outside of the Florida qualification statute.

Think of the appeal, assuming she's found guilty.

Lawyer without the necessary - and mandatory - legal prerequisites makes major decisions and files key motions (like the venue request) in a death penalty case.

First argument, it's due process as a matter of law because the Florida statute wasn't met. Second argument, it's due process under the facts of the case because this unqualified attorney made flawed decisions during the course of Casey Anthony's case that have irreparably harmed her.

More on this later. I'm just fuming.

And that was even BEFORE I read all about how it took 8 years for Jose Baez to get a bar license with the State of Florida.

Ye Gads. Why the heck isn't Terry Lenamon -- who is death qualified -- on this Casey Anthony case?

I am not a Florida attorney, nor am I a criminal defense attorney. But I do know a little about the 8th and 14th Amendments to the US Constitution, I can read a statute, and I'm thinking I have a real and valid concern here.

Wish Terry Lenamon could talk about this.

Ted Nugent Playing the National Anthem In Front of the Alamo

2009-04-15T19:33:00.000-07:00

Ted Nugent performed the Star Spangled Banner in front of the Alamo for the San Antonio Tea Party today.

It's amazing guitar ... reminded me of when I first heard Peter Frampton, but Ted Nugent's not using any gizmo here. He's just playing.

US Supreme Court's April 1st Dismissal in Philip Morris v Williams Is No Joke

2009-04-10T08:04:00.000-07:00

There's been a lot of discussion and commentary on the US Supreme Court's knee jerk dismissal of the Oregon case involving tobacco giant Philip Morris and the huge punitive damage award granted to plaintiff Mayola Williams, which had already been approved by Oregon's high court.

In case you haven't heard, Mayola Williams filed and won a wrongful death suit based upon the untimely demise of her cigarette-smoking husband, Jesse Williams, due to lung cancer. Actual damages totalled around $800,000 and the punitives were assessed at $79.5 million -- at the juncture, what with interest, the widow Williams is looking at receiving over $175,000,000.00.

Of course, the defense bar had its fingers crossed that the US Supreme Court would take this opportunity to cap punitive damages. What they got, on April 1st, was a one sentence opinion from the highest court in the land, that it had "improvidently granted" writ in the case and had now changed its mind. Wo Nellie.

Which leaves the Oregon Supreme Court's decision intact, the Widow Williams ready to receive her final award, and the plaintiff's bar a very happy group of folk today.

Because despite all the defense talk that this case is limited to its four corners, it isn't. And, that argument that what happens in Oregon stays in Oregon won't fly either.

We all already know that other big damage cases in other states are going to use this case as a strong argument that the US Supreme Court has sent the message: in the right case, big punitives are totally acceptable.

And, you know what: I think they're right to do this. Punitive damages serve a purpose, and I think we can all agree in today's climate that money is the only language that some corporations understand.

Read Justice Sharon Keller's Response to the Judicial Commission

2009-03-29T19:19:00.000-07:00

Justice Sharon Keller, through her Jackson, Walker lawyer, has filed a response to the claims pending against her at the Texas Commission on Judicial Conduct. You can read it here.

And, you can read some very good arguments regarding Justice Keller's written response (especially her request that the State of Texas pay for her attorneys' fees) here:

Houston attorney Mark Bennett's Defending People

The New York Times' blog The Lede

It's Even Funnier When You Read It ....

2009-03-25T21:10:00.001-07:00

Saturday Night Live has apparently scoured the internet, grabbing videos of its various sketches with all sorts of copyright claims, whereever it can.

So, tonight, when I stumbled upon the written script for Phil Hartman's Caveman Lawyer (remember him), I stopped to read it.

And, if you're a lawyer -- you gotta read the closing argument here. It's even funnier in print.

Here's the link:
http://snltranscripts.jt.org/91/91gcaveman.phtml