People v. State

Thus wrote Scalia in an article titled “God’s Justice and Ours” published in First Things in 2002, which I came across via these two recent posts on Catholic judges at Mirror of Justice. He goes on to explain:

In my
view, the major impetus behind modern aversion to the death penalty is the equation
of private morality with governmental morality. This is a predictable (though
I believe erroneous and regrettable) reaction to modern, democratic self–government.
(more…)

Actually, I don’t know whether it’s the world’s first, but the situation is certainly, as this story in the Elkhart Truth put it, “unusual.” The story’s headline declares: “Embattled optometrist Gabriele did give falsified diagnoses.” The trouble is, Dr. Philip Gabriele and his wife denied any wrongdoing in a suicide note they mailed to a local TV station a couple days after they were indicted by a federal grand jury and before killing themselves. Shortly after the couple’s suicide, an ophthalmologist who was (more…)

One “bobxxxx” attempted to leave 6 comments on my previous post about Darwin’s theory of evolution and the Establishment Clause. The first 5 were written in the space of 18 minutes. Here’s the first:

The reason every single biology teacher refused to teach anything about intelligent design (and this was before the trial that the creationists lost) is because intelligent design is bullshit.

Evolution is a basic scientific fact. There is no debate about it. Evolution is how the world works. The Magical Designer, also known as the Magic God Fairy, didn’t have anything to do with the development of life.             (more…)

From his dissent in Aquillard v. Edwards, 482 U.S. 578 (1987):

The people of Louisiana, including those who are Christian fundamentalists, are quite entitled, as a secular matter, to have whatever scientific evidence there may be against evolution presented in their schools, just as Mr. Scopes was entitled to present whatever scientific evidence there was for it.

Relative to the dumbest thing I think I’ve ever heard Scalia say, which (more…)

. . . of domestic battery as a Class D felony, though guilty of the lesser included offense of battery as a Class B misdemeanor, was the jury’s verdict today in a case I defended. “Bodily injury” is a necessary element of the former, while the latter only requires knowingly touching another person in a “rude, insolent or angry” manner. “Bodily injury” is ambiguously defined in the Indiana statutes as “any impairment of physical condition, including physical pain.”

Closing argument was interesting. I emphasized to the jury that they are the judges of both the law and the facts, per their jury instructions. (The Indiana Constitution provides “In all criminal cases whatever, the jury shall have the right to determine the law and the facts.”) I also urged on the jury (without actually citing or quoting) the substance of (more…)

Via Jonathan Turley (The Case Against the Separation of Church and State) and Christus Victor Ministries (Painted Idolatry: “One Nation Under God”) comes this newly discovered pictorial evidence that in fact the framers received the U.S. Constitution directly from Jesus Christ. (Scroll over the graven images for the full revelation.)

Some doubters, however, have offered their own interpretation of this evidence. (Scroll over the images.)

I have in the past thought that invocations of God by the government, whether construed as merely ceremonial or as sincere, do not run afoul of the original meaning of the Establishment Clause, which concerns not God but “religion.” (more…)

It is the organized system for employing violent action (or its threat) on the part of individuals, for as noted before, only individuals act. This rationalization occurs on two levels, first by diffusing responsibility to a fiction and second by inducing a group-think inversion of standards.”

From David Calderwood’s article at LewRockwell.com titled “A Demon in Need of Exorcism,” which concisely expresses the underlying premise of this here blog.

So writes Orin Kerr at the Volokh Conspiracy in a post about a C-SPAN video focusing on the Supreme Court building, which Orin nevertheless acknowledges is “remarkable.” That jibes with what I wrote here.

From the Washington Post’s account of the oral argument in a case about whether a 6.5′ cross built on land in the Mojave National Preserve by the VFW in the 1930s to honor the dead of WWI violates the First Amendment:

[Scalia] had a testy exchange with Eliasberg about whether the symbol — which the lawyer said “signifies that Jesus is the son of God and died to redeem mankind for our sins” — could also double as a secular marker for the war dead of all faiths.      (more…)

In honor of Breast Cancer Awareness Month, it is only fitting that I take a moment to observe that elective abortion is the single most avoidable risk factor for breast cancer. You won’t hear that from places like the Susan G. Komen Breast Cancer Foundation or the National Breast Cancer Coalition, which have been actively complicit with the federal government’s National Cancer Institute in ensuring that elective abortion is also the single most top secret risk factor for breast cancer. As far as I’m concerned, I would sooner give money to a crackhead on the street before I would donate a cent to the likes of those organizations.

I’ve already said elsewhere pretty much all I have to say on the subject. There is the Wisconsin Law Review article I authored while (more…)

. . . who spent 20+ minutes visiting this blog, entered and exited from my last post on whether lawyers should be punished for judging judges, and outclicked on the link associated with Matthew 7:1:

I’d love to know what you think. Feel free to comment. What brought you to this little backwater blog (sitemeter says “unknown”)?

Via Marcia Oddi at The Indiana Law Blog, Law.com has posted this lengthy, insightful, and timely article by Joel Cohen and Katherine A. Helm titled “The Propriety of Criticizing Judges,” from which the above quote is taken.

Cohen and Helm also write:

The problem arises in trying to draw the line between open criticism of judges or courts that is constructive and calls out what the law recognizes as a judicial impropriety or the appearance thereof, and disparaging aspersions cast by litigants, themselves tired of being perpetually judged, whose (more…)

I didn’t know this was a blogging tradition until I read this post by the taxgirl, with whom I share a birthday (today!), so in compliance with this newly-discovered tradition I offer the following ten random fun facts you may not know about me in no particular order:

1. It’s my 40th, so Scott Greenfield’s description of me as a “young” lawyer is highly relative to Scott’s own, shall we say, “maturity.”

2. Like the attorney apparently in over his head defending terror suspect Najibullah Zazi, I’ve been practicing law ten (more…)

A friend of a friend, out on bail and pretty certain he would be sentenced to a twenty year prison term (i.e. ten years with credit for good behavior) on a drug charge, was seriously considering not showing up for sentencing and making a run for it. Can’t say I blamed him. Ten to twenty years is a big chunk of life to surrender to the State just because the State tells you to. He was not a gang-banger nor so far as I knew a violent man; his “crime” had no victims. But alas the statute of limitations only refers to the time limit within which the State must file charges after the commission of a crime. If it has (more…)

Written by Justice Brandeis in a dissenting opinion, and quoted by Timothy McVeigh (the only thing he said during his trial) right before the government sentenced him to death.

The link is to Gore Vidal’s sympathetic September 2001 essay in Vanity Fair on “The Meaning of Timothy McVeigh.”

I learned of the essay from the comments to this recent post about McVeigh by Ioz, with which I concur.

Justin Raimondo’s essay on the unhinged critical response to Vidal’s essay is here. To such critics, writes Raimondo, “the idea that someone might have been driven mad by the madness of his own government is so subversive that it (more…)

Ken at Popehat points out the eerie similarity between a song familiar to many from Sunday School and a song praising Barack Hussein Obama that was recently written, sung, recorded and distributed by a class of elementary school students.

Here’s a lyric from the latter:

He said red, yellow, black or white
All are equal in his sight (more…)

I have an egomaniacal tendency to believe that Scott Greenfield is speaking to me in many of his blog posts. No doubt that’s partly because, as a highly-accomplished criminal defense attorney, so much of what he says is highly relevant to people like me who aspire to become highly-accomplished criminal defense attorneys.

Whether or not Scott had me in mind when he wrote his post today titled The Walmart Lode, it harmonizes with his side of our exchange in the comment thread to my post here suggesting that barriers to the legal profession should be lowered rather than raised. Scott writes in his post today:       (more…)

That’s a quote from a former attorney for Hmong leader General Vang Pao, against whom the federal government has finally dropped its charges for allegedly plotting the violent overthrow of the communist regime in Laos. (H/T Ann Althouse.)

I’m sorry, but as much as I approve of the dismissal of these charges against General Pao, I think his patriotism (if reported accurately by his former attorney) is misplaced. The U.S. “government itself” does not exist apart from U.S. agents. The government is what the government does. U.S. “agents” have no “principals.”

In this earlier post, Ann Althouse linked to background on the case which quoted Assistant U.S. Attorney Robert Twiss as saying (more…)

I don’t vote, because I’m persuaded that politics is an extension of war by other means, and that war is a racket. Therefore I really could have cared less when I noted in various headlines over the last couple days that the Indiana Court of Appeals has struck down some Indiana law having to do with “voter ID.” But what really drew my attention to the case was this statement issued yesterday by the Indiana State Bar Association:

On Thursday, Sept. 17, the Indiana Court of Appeals issued a ruling in Indiana League of Women Voters v. Rokita, the “voter ID” case, and Gov. Mitch Daniels commented on the decision and the judges who heard the case. While the Indiana State Bar Association (ISBA) recognizes that Gov. Daniels has (more…)

Those words were spoken by Justice Ruth Bader Ginsburg during arguments last week in the Citizens United campaign-finance case, but the real news (from the Wall Street Journal) is that Sonia Sotomayor in her inaugural appearance as a SCOTUS Justice also suggested by her comments during the arguments that she understands that corporations aren’t people.

I think the two lady Justices are right about this, and are right to challenge what the WSJ says is a century of corporate law. But I also think a (more…)

“I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts.  These are false hopes; believe me, these are false hopes.  Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.  While it lies there, it needs no constitution, no law, no court to save it.  And what is this liberty which must lie in the hearts of men and women?  It is not the ruthless, the unbridled will; it is not the freedom to do as one likes.  This is the denial of liberty and leads straight to its overthrow.  A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few — as we have learned to our sorrow. (more…)

Jonathan Adler at The Volokh Conspiracy asks himself the age-old question, “Is Poker a Game of Chance or Skill?” His sly and equivocal answer:

In my opinion, playing poker at a high level requires an immense amount of skill, and better poker players will regularly outperform their less skilled competitors. Yet skill is no guarantee of victory in poker; the cards may still have their say. . . . Nonetheless, some charged with organizing or participating in illegal poker games are pressing the argument (more…)

The New York Times has an important story today that publicizes how lawyers aren’t as free as others to speak their minds about the legal system and those who administer it, and how the popularity of online social media among lawyers and non-lawyers alike is highlighting that disparity. Particularly because practicing lawyers are naturally more knowledgeable than others about the legal system and those who administer it in their communities, this unequal treatment should trouble everyone who cares about the First Amendment and holding public officials accountable.

The NYT story is unfortunately padded with some recycled accounts of lawyers who used social media to do some (more…)

After an email exchange, Scott Greenfield is no longer banning me from commenting at his blog, Simple Justice. That pleases me greatly, as Scott’s blog is one of the best if not the best criminal defense blogs out there, and I continued to read him daily despite the sting of being banned.

Today Scott concurs with Dan Slater in blaming law schools and the ABA for letting too many people into the legal profession. He argues that when there are too many lawyers running around, the oversupply inevitably means (more…)

In the realm of theodicy (the subject of my undergraduate senior philosophy thesis), I’ve sometimes reflected that Hamlet’s observation to Rosencrantz and Guildenstern that “there is nothing either good or bad, but thinking makes it so” sheds some light on the theological “problem of evil.” In the worldlier and more practical realm of criminal law, not so much.

I would prefer not to be robbed, but if I am robbed I would prefer that nothing resembling a firearm be involved. If what appears to me during the robbery to be a loaded firearm is involved, I would prefer that it in fact be unloaded or inoperational or not a firearm at all (i.e. a BB or pellet gun). If what is in fact a loaded firearm is involved, I would (more…)

Via this post at Above the Law, Florida Bar Examiners will start looking at applicants’ Facebook pages to evaluate their character and fitness to practice law, “and will of course check to see if you would like to overthrow the government.” Although Above the Law is kind of joking about that last part, it’s hard to imagine that a Facebook page or a blog like, e.g., this one, would not have raised a few eyebrows among the (non-Floridian) bar examiners who initially admitted me to the practice of law ten years ago. A couple points in my defense, should this blog ever provoke among that kind a second look:

First, I would not like to overthrow the government, at least not all at once. Some things perpetrated by minions of (more…)

The recent death of Milton’s Friedman’s widow, Rose Friedman, led their son David Friedman, a notable libertarian thinker in his own right, to reflect in this blog post on his own intuitions of immortality. Like an unfortunate number of libertarians, David is an agnostic or athiest, and his “best guess is that dead really is dead, that the person is software running on the hardware of the brain and when the hardware stops functioning the person ceases to exists,” despite “find[ing] it hard to entirely believe in death.”

My comment on his post was as follows: (more…)

That’s what a certain prosecutor said to me as he extended his hand and as the sheriff’s deputy placed the cuffs on the innocent man standing next to me, right after the judge read the jury’s verdict finding him guilty. What I thought of what he thought was incompatible with a handshake, though at that particular moment in time I didn’t have it in me to respond appropriately.

Apparently, the tautology chosen by the prosecutor for this occasion is now all the rage.

( or has it already been stolen? )

“Build a better mousetrap and the world will beat a path to your door.” Maybe so, maybe not … but if so, chances are very good that at least some of the path-beaters will make the journey for the purpose of serving lawsuits.

There’s a lot of big money in play right now, pushing an expansive definition of something euphemistically referred to as “intellectual property.” That big money got to be big money by using government to restrain trade and ban competition. But in the age of the Internet, the whole idea of “intellectual property” finds itself going mano a mano with reality — and losing. (more…)

While looking online for the phone number of Judge Marnocha’s chambers, I came across this very informative interview he gave to the South Bend Tribune in 2006. Particularly interesting is this excerpt:

Q: Are you aware of the perception some people have that St. Joseph County judges are too lenient, and more lenient than in Elkhart County?

A: We’re in the top third. Does that say something about St. Joe (more…)