a mere 1/2 ton

That’s nothing! Just two Mondays ago we had a trial in Davidson County / Metro Nashville on a whole ton . Assistant District Attorney John Zimmerman presented 1,000 two pound bricks to the jury…even I would have had trouble claiming personal use on that one, even if they did find the guy with a bong.

The 1,400 pound pot story is here.

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I have a one word response to that.

Good.

The “English only” charter amendment is bad, not because the Metropolitan government needs to be speaking in English (it already is), but because it is completely unnecessary. The primary advocates, many of whom I have known for years, are pursuing bad government policy with reckless abandon and it is shameful. The call for a special election, which would cost the taxpayers somewhere in the ballpark of $350,000 for an unnecessary, legally irresponsible amendment, is absurd. The money Metro would be spending could just as well go to more accessible English as a second language classes, which would go further toward solving the perceived linguistic problems of our city than this silly amendment.

As Davidson County Republican Party chairman Tom Lawless noted in The Tennessean today, “What is the great immediacy of this?”. He is certainly right – there is no immediacy, especially not in the case of this poorly contrived law.

I tend to look for the best in people, and will give most the benefit of many doubts, but I truly cannot figure out what positive is being accomplished with this amendment.  The state of the law will not change. The only outcome will be that costs to Metro will go up in the form of litigation from certain constitutional challenges.

There is no language crisis in our city. Immigrants are not “holding out” on us, refusing to speak in anything but their native tongues. No one comes to America (and more specifically, Nashville), not wanting to learn English. There is not some underground society on Nolensville Road that has pledged to speak Spanish or die.

But what does need to die is the English-Only charter amendment. It is giving conservatives in Metro an awful reputation, one that many of us do not deserve and strenuously resent. I strongly oppose the English-Only charter amendment and urge its backers to rethink their reasons for supporting it. Surely we can focus on something that would actually make Metro better, leaving the coarsely developed aura of this irrational xenophobia in the gutter where it truly belongs.

The Second Amendment lives, by the slimmest of margins. The SCOTUS struck down the District of Columbia hand gun ban just moments ago, in a predictable 5 to 4 decision (ponder this – an Obama shaped court would have been 5 to 4 the other way). Scalia penned the majority opinion.

I feel like a kid at Christmas – I can’t wait to delve into the thing.

Until the opinion is widely posted (which should be any time now, download it here), all we know is that the Court moved in the right direction.

UPDATE A quick legal analysis here (it may be the first in the world, but I can’t substantiate that claim!).

Moore Trademarks, an online trademark and copyright registration, protection and monitoring service, has just been launched.

The site can be found here.

Whew.

There is a smattering of new laws going into effect in Tennessee come January 1, 2008. Always the most interesting to me, considering what I do on a daily basis, are the new criminal statutes. The Crooks with Guns law, as it has been entitled, drastically increases the punishments for gun related crimes associated with the commission of certain enumerated “dangerous felonies”. I have uploaded a quick outline summary I did of the law this morning here (the entire statute can be found here). The operative elements of the new TCA 39-17-1324 are as follows:

(a) Possessing a firearm with the intent to go armed during the commission of or attempt to commit a dangerous felony

(b) Possessing a firearm during

1. the commission of a dangerous felony;

2. an attempt to commit a dangerous felony;

3. flight or escape from the commission of a dangerous felony;

4. flight or escape from the attempt to commit a dangerous felony.

The teeth are in the sentencing. If the defendant has a prior felony conviction, the law creates a new class of felony, essentially a “Super C Class” and a “Super D Class”. Violations of subsection (b) are deemed a Class C felony, but demand a mandatory minimum ten (10) year sentence with zero release eligibility, and no option for supervised release. However, the standard Class C felony for a Range I offender is three (3) to six (6) years. The new law stands alone at a minimum of ten (10) years, regardless of the range of the offender (this isn’t problematic with Range II offenders, where the range itself is six (6) to ten (10) years, where the minimum simply becomes the maximum already allowed in the range). A violation of subsection (a) is a Class D felony, with a minimum sentence of five (5) years if the defendant has a prior felony conviction. Without a prior felony conviction, the minimums are six (6) and three (3) years, respectively.

As well, jail credit is tweaked with the new law. In Department of Correction custody, one typically qualifies for “good time”, which is usually getting three days of credit against your sentence for every two you serve (standard in local Davidson County custody, which is for sentences under six (6) years, is two days for every one day you serve). The Crooks with Guns law largely eliminates such good time – akin to federal sentencing rules, you can complete your sentence no earlier than after having served 85% of it.

One aspect of the proposed change in the gun laws puzzles me, however, In amending TCA 39-17-1307, possessing a deadly weapon that is not a firearm in the commission of a “dangerous felony” as listed in the Crooks with Guns law is a standard Class E felony. That part makes sense, and would apply to knives, pool cues, baseball bats, etc. However, possessing a firearm in the commission, attempt to commit or escape from a non-dangerous “offense” (note, not felony) is a Class E felony. A Class E felony entails a one (1) to two (2) year sentence for a Range I offender. So, in essence, if you possess a firearm while committing the least serious misdemeanor, you could suffer a felony conviction (think Driving on a Suspended License because of unpaid tickets, or Criminal Trespass, both Class C Misdemeanors – and the way it is written, possessing a valid concealed carry permit wouldn’t matter a lick).

To me, this part seems to be an overreach of the law, and would operate entirely outside the spirit of the Crooks with Guns law. Hopefully the amended wording won’t be enforced in that manner, but with the way the legislature wrote it, my reading certainly confirms the new law would allow it.

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I’m not sure how many George Mason University Law students read this blog, but Ilya Somin over at the Volokh Conspiracy has an RA opportunity for you. The details are here.

Though I must note the word “lucrative” is used. If there were any lucrative RA opportunities when I was at GMUSL, I surely missed them.

More props to my law school alma mater…this time out of the Nashville blogosphere.

Law and economics – it’s the wave of the future. And GMUSL is at the forefront.

David Bernstein, present professor at George Mason University School of Law (my alma mater), has this to say about GMU’s success in reaching the Final Four

Holy Cow, George Mason’s in the Final Four!: I generally completely ignore “March Madness,” and have no interest in college basketball. But we here in the Bernstein household (GMU professor, GMU graduate school alum, and baby) are very excited by George Mason’s success. If nothing else, we are going to be a lot less likely to hear “where?” when we say we teach at/graduated from George Mason. Relatedly, while some mediocre law schools clearly benefit from being affiliated with renowned universities (I won’t mention any names here), GMU Law School has long suffered from being affiliated with (what is unfairly known as) “that commuter school in Fairfax.” So go Patriots!

A rising tide floats all boats.

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Wisconsin has just passed a law capping pain and suffering damages in medical malpractice cases

Rep. Curt Gielow (R-Mequon), co-author of the latest measure, said having such a limit in place was important to bringing stability to the health care marketplace.

“It’s a fine balance between fairness to the injured plaintiff and fairness to the overall public that needs access to health care,” Gielow said.

Actually, it’s a boon to insurance companies, who no longer have to pay big settlements and judgments while maintaining the same rate of increase in premiums. Torts are not the reason for rising costs of healthcare – the disconnect between insurance providers and their customers, both doctors and patients, is the reason. Individuals who have been permanently damaged because of someone else’s reckless or negligent behavior deserve compensation. The call for tort reform is a frequent one from members of my party, but it’s bad policy. It will not get us where we want to go.

This one is funny, and since I was the one involved, I’m going to retell it. I was in Wilson County last week representing a civil client on a suspended driver’s license. I got involved after the judge had given her multiple opportunities to resolve some outstanding fines. The judge went down the docket

Judge: Jackie Smith

Me: No judge, she doesn’t – that’s why I’m here.

It was funnier if you were there, probably. At least Judge Tatum and the bailiff laughed.

From the Tennessee Litigation Business Blog

When a judicial opinion cites “Billy Madison” as authority for denying your motion, it may be time to reevaluate your case. Here is one such opinion from the United States Bankruptcy Court for the Western District of Texas.

But it’s better than commenters on your blog citing Tommy Boy.

When failing in your God-charged duties, file a law suit. That’s what a bunch of parents in Massachusetts have done

Wakefield, Mass., mother Sherri Carlson said she tries her best to get her three kids to eat healthy foods.

“But then they turn on Nickelodeon and see all those enticing junk-food ads,” Carlson said. “Adding insult to injury, we enter the grocery store and see our beloved Nick characters plastered on all those junky snacks and cereals.”

Carlson and another plaintiff, Andrew Leong of Brookline, Mass., spoke at a news conference organized by the Center for Science in the Public Interest and the Boston-based Campaign for a Commercial-Free Childhood.

They intend to sue Kellogg and Nickelodeon parent Viacom Inc. in state court in Massachusetts and served the required 30 days’ notice on Wednesday.

So here’s what must happen. These little kids watch Nick, see a tasty treat, grab the keys, jump in the car, and come back with a case of Fruit Loops from Costco. Or, the parents take their kids with them grocery shopping, have the will power of a wet noodle, and buy whatever the kids whine for without real objection. If anything, the kids ought to be suing the parents for the subpar genes they have inherited.

Some individuals have been so desensitized from the concept of their own responsibilities and are so lazy and feeble of mind that law suits like this are actually rationalized and viewed as justified. We have arrived at the point that if you can’t parent effectively, you can blame a corporation. Geeze.

I was recently in a deposition, where the deponent, who followed direction well, did not answer with certainty when she wasn’t certain. In fact, she may have stuck to this rule a little too well. After four questions in a row where she immediately answered “I don’t recall”, the deposing attorney asked

Q. Do you have some mental disease that affects your ability to recall facts?

A. I don’t recall.

Classic.

Thanks to Say Uncle for linking to this

Sometime in late 2001, Officer Ron Jones collected a tip from an anonymous informant that Jamie Smith, who lived opposite Maye in a duplex, was selling drugs out of his home. Jones passed the tip to the Pearl River Basin Narcotics Task Force, a regional police agency in charge of carrying out drug raids in four surrounding counties. The task force asked Jones if he’d like to come along on the raid they’d be conducting as the result of his tip. He obliged.

On the night of December 26, the task force donned paramilitary gear, and conducted a drug raid on Smith’s house. Unfortunately, they hadn’t done their homework. The team didn’t realize that the house was a duplex, and that Maye — who had no relationship with Smith,– rented out the other side with his girlfirend and 1-year-old daughter.

As the raid on Smith commenced, some officers – including Jones — went around to what they thought was a side door to Smith’s residence, looking for a larger stash of drugs. The door was actually a door to Maye’s home. Maye was home alone with his young daughter, and asleep, when one member of the SWAT team broke down the outside door. Jones, who wasn’t armed, charged in, and made his way to Maye’s bedroom. Because police believed Maye’s side of the duplex was still part of Smith’s residence, they never announced themselves. Maye, fearing for his life and the safety of his daughter, fired at Jones, hitting him in the abdomen, just below his bulletproof vest. Jones died a short time later.

Maye had no criminal record, and wasn’t the target of the search warrant. Police initially concluded they had found no drugs in Maye’s side of the duplex. Then, mysteriously, police later announced they’d found “traces” of marijuana and cocaine. I talked to the attorney who represented Maye at trial. She said that to her knowledge, police had found one smoked marijuana cigarette in Maye’s apartment. Regardless, since Maye wasn’t the subject of the search, whether or not he had misdemeanor amounts of drugs in his possession isn’t really irrelevant. What’s relevant is whether or not he reasonably believed his life was in danger. Seems pretty clear to me that that would be a reasonable assumption.

It apparently wasn’t so clear to Mississippi’s criminal justice system. In January of last year, Maye was convicted of capital murder for the shooting of Officer Jones. He was sentenced to death by lethal injection.

Let’s summarize: Cops mistakenly break down the door of a sleeping man, late at night, as part of drug raid. Turns out, the man wasn’t named in the warrant, and wasn’t a suspect. The man, frigthened for himself and his 18-month old daughter, fires at an intruder who jumps into his bedroom after the door’s been kicked in. Turns out that the man, who is black, has killed the white son of the town’s police chief. He’s later convicted and sentenced to death by a white jury. The man has no criminal record, and police rather tellingly changed their story about drugs (rather, traces of drugs) in his possession at the time of the raid.

First, shame on the district attorney for bringing this case. Second, shame on the jury for the way it voted. Two comments from jurors show that concern for the facts was limited if not nonexistent

Maye’s attorney tells me that after the trial, she spoke with two jurors by phone. She learned from them that the consensus among jurors was that Maye was convicted for two reasons. The first is that though they initially liked her, Maye’s lawyer, the jury soured on her when, in her closing arguments, she intimated that if the jury showed no mercy for Maye, God might neglect to bestow mercy on them when they meet him in heaven. They said the second reason May was convicted was that the jury felt he’d been spoiled by his mother and grandmother, and wasn’t very respectful of elders and authority figures. The facts of the case barely entered the picture. Gotta’ love the South.

So, his defense lawyer did something stupid, and he was “uppity”. Therefore he deserves death for defending his home and his daughter. Geeze. From an email posted by Glenn Reynolds

My brother and I (both military officers and strong police supporters) were just discussing “no-knock” raids last week. A citizen has every right to defend himself in his home to unknown intruders. Not too long ago, a family was the victim of home intruders posing as cops. I’d be hard-pressed to believe anyone barging in my home in the middle of the night, especially if I KNEW I wasn’t a criminal. “No-knock” raids should be illegal in all 50 states.

Further, why doesn’t the Hollywood crowd take up the cause of a truly wronged black man on death row, instead of real criminals like Tookie and Mumia?

Fair point. Where are the death penalty opponents on this one? You find what I can see as a clear-cut case of an unjust result and the usual suspects are nowhere to be found. Where are the privacy advocates? This is a case where the defendant would have been acting immorally if he didn’t shoot the intruder.

Balko has some more follow-up here, including an interesting conversation with the circuit court clerk, some excerpts of incorrect media coverage, and a disection of the relevant Mississippi statute.

There are so many at fault here, from the police, to the judge, to the jury, to the defense attorney, to the district attorney that I simply do not know where to start. Based on the statute alone the judge should have directed a verdict. Geeze.

A General Sessions victory – they seldom happen in criminal cases. I had a client who had a sister, who was arrested with her. As usual, the warrants used to arrest were substandard, with minimal helpful information. Unfortunately for my client, she was a near twin of her sister, which presented a peculiar ID problem. The charge was aggravated robbery, which in this case meant a robbery with the use of deadly force.

The alleged victim was of Hispanic descent, and did not speak English. The use of an interpretor in preliminary hearings is always interesting, and makes for a different and sometimes difficult dynamic. In this case, the difficulties included determining the difference between left and right. The facts as testified were that the victim was playing the piano. He left the door to the apartment open as he expected his roommates to arrive back from the store. In the meantime, a girl came in and demanded money at knife point. This girl was my client’s sister. The testimony was shaky, and difficult to understand.

The victim could not understand English, but made a positive ID in a photo lineup of my client. Irrelevantly, his two roommates, who were not present for the incident with the knife, made the same ID. The victim however was confusing right and left at the hearing, pointing at the wrong defendant. After the judge (Judge Gale Robinson, a great and fair judge here in Nashville), the DA and we defense attorneys figured out the problem (it didn’t take too long) , we eventually got things figured out. But I wanted to make it clear for the court.

At my chance for cross examination, I asked my client to stand up, pointed at her with a pen, and asked the victim if she was the one who robbed him. His answer was “no”. I asked him if he was drunk during the incident (a previous point of questioning during co-defendant’s counsel’s cross) , and he said no. The negative ID on my client stood.

A quick motion to dismiss once the hearing was concluded and my client was released. In criminal defense you lose 90% of the time, and attempt to mitigate most of the time. In this case, it was a clear win – and for the right reasons.

There are more interesting things that happen but I seldom blog about them. I think I might add those experiences as a common addition to the blog. More good stuff as it happens.

For those interested in what the Sixth Circuit is up to, be sure to check out the Sixth Circuit Blog.

I’m presumptuous as a lawyer assuming everyone knows the Sixth – it includes Tennessee, Kentucky, Ohio and Michigan. A map for all the circuits is here.

The RNC sends out this email from the office of Chairman Ken Mehlman

Dear XXX,

Today, President Bush announced his choice to succeed Justice Sandra Day O’Connor as the next Supreme Court Justice: Harriet Miers. (more…)

Blogging for Bryant well sums up my opinion on the decision to nominate Harriet Miers as the next SCOTUS justice

During the campaign, President Bush promised to nominate Supreme Court justices in the same mold as Scalia and Thomas. We got John Roberts. Okay, fine. President Bush is trying to maintain the balance on the court, but he still has another pick uneasy conservatives told themselves. Today, we got White House counsel Harriet Miers. Even less is known about Miers than was about John Roberts. I’m not saying she’s not a conservative — I’m just saying we have no reason to believe she is. It’s hard to get excited about Miers and I think a lot of conservatives are feeling betrayed by her nomination.

It seems that Bush is tired of fighting. B4B notes also that Michelle Malkin is leading the charge in assembling reaction from the conservative blogosphere.

I know it’s his second term, but please. The hesitancy and hedge-mentality with which he has acted during both SCOTUS nominations is not a sign of strength, or a man willing to get dirty politically. It’s a sign of naive camaraderie with an opposition party that would love nothing less than to put a stake through your compassionate conservative heart. Or it’s a sign of lazy principle – whichever may be your poison.

In short, we need a fight over the Supreme Court. Some may not think so, and ease of confirmation probably weighed heavily in Bush’s consideration, but often times you get what you pay for. The influence each justice wields is worth 50 congressmen, on an average day, or a good day (for Congress). It’s worth a scuffle. Miers may be a great justice, but she will hardly enrage the Democrats, something which I think politically we should be trying to do, to demonstrate just how far out of touch their reality is with those they claim to represent.

Just browsing some of the reactions, I found this one from The Volokh Conspiracy intriguing

FURTHER UPDATE: What do Miers and Roberts have in common? They both have significant executive branch experience, and both seem more likely than other potential candidates to uphold the Administration on issues related to the War on Terror (e.g., Padilla and whether a citizen arrested in the U.S. can be tried in military court). Conservative political activists want someone who will interpret the Constitution in line with conservative judicial principles. But just as FDR’s primary goal in appointing Justices was to appoint Justices that would uphold the centerpiece of his presidency, the New Deal, which coincidentally resulted in his appointing individuals who were liberal on other things, perhaps Bush sees his legacy primarily in terms of the War on Terror, and appointing Justices who will acquiesce in exercises of executive authority is his priority, even if it isn’t the priority of either his base or the nation as a whole. Such Justices may be coincidentally conservative on other issues, just as FDR’s nominees moved the USSC generally to the Left. Thoughts?

This theory meshes well with my logic. However, it leaves some undesired side effects. It’s possible that the justice who routinely votes to uphold provisions of the Patriot Act and who welcomes further expansion of federal power in the War on Terror would also be apt to expand the commerce clause and pooh pooh the Tenth Amendment. Power exists in a vacuum – either the federal government has it, the states have it, or the people have it. Though Volokh may be on to something here, I cringe at the thought that the minor progress that has been made in curtailing federal power vis a vis the states (i.e. US v. Lopez, among others) will suddenly be whisked away.

Dick Cheney likes her (courtesy of Ann Althouse)

I’m confident that she has a conservative judicial philosophy that you’d be comfortable with, Rush. I’ve worked closely with Harriet for five years. I’ve seen her and worked closely with her, hand-in-glove with her, really, through this process of reviewing candidates for the Supreme Court, and that’s how we got to the Roberts nomination. She believes very deeply in the importance of interpreting the Constitution and the laws as written. She won’t legislate from the federal bench, and the president has great confidence in her judicial philosophy, has known her for many years, and I share that confidence based on my own personal experience.

But more demoralizing, at least to me, is the glee of some liberals at the conservative reaction(s). From Bruce Barry at PITW

The president’s nomination this morning of Harriet Miers to the Supreme Court means … who knows? The woman has no record of judicial experience or legal scholarship that might signal her judicial temperment or ideology. One upbeat sign for liberals is initial right-wing reaction that looks more like fury than feelgood, to judge from the comment board at confirmthem (via Volokh).

Donald Sensing weighs in as well. It’s worth a click, just to read the links.

More local blogosphere reaction can be found at Nashville is Talking.

UPDATE Wasting no time, here’s your source for all there is to know about Harriet Miers, in the most positive of lights, of course.

FURTHER UPDATE My former bankruptcy professor at GMUSL, Todd Zywicki, weighs in on Miers

Bush’s back-to-back appointments of Roberts and Miers is a clear indication that his goal is at best to merely change the voting pattern of the Court rather than to change the legal culture. One suspects that the best that conservatives can hope for from the two them is that they will consistently “vote right.” But neither of them appears to be suited by background or temperament to provide intellectual leadership that will move the legal culture. I suspect that this is the source of the conservative outrage about Miers. In addition, historically those who come to the Court without a clear jurisprudential philosophy almost always end up moving left, which may add still further to the concern about her apparent lack of intellectual heft. Simply because she has stood up to the political criticism that she has received working in the White House does not mean that she will be able to withstand the intellectual criticism that she will receive. Writing a persuasive Supreme Court opinion that will hold a majority is a whole different ball game from stonewalling the Washington Post reporters.

…

In the end, of course, the lack of a strategic vision means that even the tactical victories tend to be reversed (for instance, temporary tax cuts will likely fall victim to the inability to control spending). As Reagan understood, you have to first have the long-term strategic vision in mind so that you know when to make tactical compromises. Ideas are the long-run motivating force of history. Tactics without strategy, by contrast, leaves you rudderless.

Picking someone who “votes right” without exercising intellectual leadership is a squandered opportunity. Even worse, if you try to pick someone who votes right without knowing why, soon you may have neither.

I apologize for the wordiness, but Zywicki’s post is rather good, and there’s more if you care to click through.

UPDATE AGAIN, AGAIN For those of you who care, Pat Buchanan has spoken on the Miers nomination.