Monday, February 27, 2006

Wacky Wyoming Firearms Legislation.

The Denver Post reports on this fine piece of legislation that was recently pending in Wyoming. The proposed law "would have allowed hunters to carry automatic weapons such as machine guns into the woods. And to equip those guns with Godfather-style silencers." Fortunately, although the legislative proposal would have allowed the hunters "to have the automatic weapons and silencers, it would remain illegal to actually use them for hunting."

Confused? Yeah, so was the Wyoming Legislature, apparently.

One state senator stated:

"As a hunter, I know there's enough firepower in the woods right now to go after any game without automatic weapons," . . . "And a silencer? No hunter I know would ever even think of using such a thing."

The senator who introduced the legislation acknowledged that "No one understood it." Nonetheless, he "vowed to reintroduce the automatic weapons and silencer proposal in 2007."

Apparently the legislation is "necessary" because existing Wyoming law prohibits anyone from taking a fully automatic weapon or silencer into the "game fields or forests of Wyoming," nobody is clear about how to define the "game fields or forests of Wyoming," and the law prohibits even law enforcement from having automatic weapons and silencers, but "[s]ome law enforcement agencies in Wyoming do, indeed have automatic weapons" because "[t]hey don't want to be outgunned by the bad guys."

So this proposal would "fix" the apparent problem of law enforcement officers not being able to possess automatic weapons and silencers in the "game fields and forests" of Wyoming by throwing out the language in the statute which bans anyone from having such weapons there and replace it with wording that prohibits "tak[ing] any wildlife within the state of Wyoming" with an automatic weapon or gun equipped with a silencer.

According to the legislation's author, the whole point is just to allow law enforcement to legally have such guns. "It's not really about hunting at all."

I will freely admit that I am not a state legislator, nor have I ever been faced with the responsibility of drafting legislation. Nonetheless, it seems to me that the easier approach would be to change the law to say that law enforcement is excluded from the prohibition, rather than to remove the "possession" prohibition altogether and replace it with a "use" prohibition. Would it not be easier to simply amend the statute so that instead of reading that "No person shall take into or possess in the game fields or forests of Wyoming . . . " it reads that "No person, except for a law enforcement officer in the course of his or her official duties, shall take into or possess in the game fields or forests of Wyoming . . ."?

And I'm not even going to go into the other part of the legislative proposal discussed in the article: allowing archery hunters to carry guns to protect themselves from grizzly bears. Apparently there is an issue about archery hunters being prohibited from carrying a firearm because "a few" every year will shoot a deer or elk with a small caliber gun, then stick an arrow in the small hole and make it look like they killed it with an arrow. The existing prohibition to prevent that, however, means that archers are only allowed to carry pepper spray to protect themselves from rampaging grizzly bears.

All of this makes me glad I don't live in Wyoming. The whole place just sounds too dangerous.

Blawg Review #46.

Blawg Review #46 is up this morning over at de novo.
This week's edition of blawg review includes references to some of the best legal blog posts of the past week on a variety of topics, including:

-- a discussion of why lawyers are pessimistic
-- a book review
-- a look at some important IP cases of 2005
-- a look at the future of legal blogs
-- a nod to a few of the posts about the google porn thumbnails developments
-- a discussion of "spicing up" CLE materials
-- a look at fair use and trademark implications for derogatory words
-- a look at heckling Justice Scalia
-- looks at professor/student email, ethics and math, and the benefits of early settlement
-- and many more great posts from last week

Go check out this week's blawg review. It's a great way to catch up on the wide variety of posts from last week's legal blogs. Then, spend a little bit of time browsing some of the rest of the good stuff at de novo. For example, last week de novo had a post about South Dakota leading the way to ban abortion and discussing the unique nature of abortion legislation, where the doctors face criminal prosecution but the "buyer" or "recipient" of the doctor's service does not.

Finally, I have to thank the fine folks at de novo for recognizing two of the Kierkegaard Lives posts from last week. Thanks!

Friday, February 24, 2006

Florida Death Row Inmate Acquitted by Florida Supreme Court.

The AP is reporting that the Florida Supreme Court has "unanimously ordered the acquittal of a [Florida] death row inmate Thursday, saying prosecutors had not proved he killed two neighbors." The inmate, John Robert Ballard, had served nearly three years for the 1999 murders of two of his friends. The State will apparently not ask the Florida Supreme Court to reconsider its ruling.

According to the story:

The only evidence tying Ballard to the crime was a fingerprint on a bed frame and an arm hair found in Jones' hand, the high court said. But the court noted the possibility that Ballard left the fingerprint and hair during one of his many visits.

Jones was a marijuana dealer, and gang members had shot into the apartment a week before the killings, the court said. But prosecutors never presented evidence ruling out the gang members as the killers.

Also, prosecutors believe the killer's motive was robbery - Jones kept large amounts of money in the apartment - but there was no evidence Ballard had such money after the killings, the court said.

Hat-tip to How Appealing (February 23, 2006)
AP Story (February 23, 2006)
Florida Supreme Court opinion (February 23, 2006)

The Friday Fantastic Four #6.

1. Featured Law-Oriented Blog.

This week's featured law-oriented blog is The Legal Writing Prof Blog. The Legal Writing Prof Blog is part of the Law Professor Blogs Network, and contains all kinds of great information about legal writing and the legal writing community. Recent posts, for example, include information about new books orscholarly works to improve your writing skills, job openings for those seeking academic employment, and more. There are also links to other great legal writing resources on the internet. This site is a great starting point for any practitioner looking for materials to help improve his or her writing skills, any practitioner looking to get into academics, or even students looking to improve their legal writing skills.

2. Featured Law Commentary.

This week's featured law commentary is by Bernard Freamon of Seaton Hall Law, courtesy of Jurist. Freamon's commentary is titled "A Danish Trojan Horse: Law and the Muhammed Cartoons".

Freamon's point of view on the ongoing controversy over Danish newspapers' publication of cartoons depicting the Muslim Prophet Muhammed is that of a Muslim African-American law professor. Freamon approaches the controversy as involving "profound questions about the continued viability of a liberal and universalist approach to free expression in our rapidly changing and increasingly pluralist world." Importantly, Freamon urges against "blindly" definding the action of the newspapers and forgetting "that the idea of freedom of expression evolves and deepens as history progresses."

Freamon does note that Muslims should be "deeply concerned" because Muslims are being "provoke[d]. . . to commit senseless acts of violence that do not uphold or further the banner of Islam and the values that the Prophet Muhammed sought to inclulcate in" his followers. Freamon notes that Islam teaches that vilification of any religion is reprehensible and must be strongly condemned, and recognizes that "the Arab press [frequently publishes statements] vilifying the Jewish religion and Jewish people."

Freamon notes that Islam's teaching against the vilification of religion makes it "very right" for Muslims to "vigorously condemn the publication of the cartoons and to seek to punish the editors through the criminal law process." According to Freamon:

There is no room in the public square, it seems to me, for the race-baiter or religion-baiter who acts with the intention to injure or harm others. If these cartoons are in fact a Trojan Horse for such behavior the editors must be exposed and punished. We should remember that the Rwanda genocide was preceded by radio broadcasts that described Tutsis as “cockroaches” and supposedly innocently listed the names and addresses of people who were later murdered by Hutu mobs, simply because of their ethnic origin or association with the Tutsis. The International Criminal Tribunal for Rwanda rightfully rejected the free expression defense offered by the radio broadcasters at their trial for genocide and crimes against humanity.

Freamon then tries to make the case that Danish law supports criminal prosecution for the publication of the cartoons. In this regard, Freamon's logic seems to me to be flawed. Here's why:

Freamon first recognizes that Denmark applies Article 10 of the European Convention on Human Rights and recognizes that freedom of speech is recognized as an essential foundation of a democratic society, applicable not only to information or ideas that are favorably received, but also to those that are offensive, shocking, or disturbing. Freamon even recognizes the particular importance of the right to the media, "which must 'impart information and ideas on matters of public interest.'"

Freamon then, rightly, recognizes that freedom of expression is not an absolute right under the European Convention. The specific restrictions recognized by Freamon are restrictions "necessary 'for the protection of the reputation or the rights of others.'" Freamon notes that this restriction permits civil actions for libel and slander, and also allows criminalization of hate speech. Relatedly, the Danish Penal Code authorizes criminal prosecution of anyone "'who publicly or with the intention of dissemination to a wide circle of people makes a statement or imparts other information threatening, insulting or degrading a group of persons on account of their race, color, national or ethnic origin, belief or sexual orientation . . ..'" Freamon further recognizes that Denmark has ratified the International Convention on the Elimination of All Forms of Racial Discrimination (1965), which condemns "'racial discrimination and undertake[s] to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races.'" Freamon notes that this allows Denmark to "restrict hate speech when the circumstances, taken as a whole, show that such speech or expression promoted racial discrimination or hatred."

So far, so good. Freamon's recount of internation law is, no doubt, accurate to this point. Further, I don't disagree with Freamon's conclusion that:

Under both these standards it appears to me that the Jyllands-Posten publication of cartoons satirizing the Prophet Muhammad with depictions and caricatures may very well be a violation of Danish Penal Code section 266b, if it can be shown that the editor knew that the religious sensibilities of Muslims would be deeply offended by the caricatures and that he intended to stir hatred and ridicule with their publication.

Where I disagree with Freamon, however, is when he next concludes that Danish prosecutors commited "a patent abuse of their discretion and a blatantly political decision" in refusing to authorize a criminal prosecution of the newspaper editor. As Freamon himself recognizes, for publication of these photographs to be a violation of Danish law, it must be shown both that the editor knew that the religious sensibilities of Muslims would be deeply offended by the caricatures *and* that he intended to stir hatred and ridicule. It seems to me that both of these might well be both questionable and very difficult to prove.

First, assuming that the editor is not himself Muslim or for some other reason extremely well-schooled in the Muslim religion, it does not seem unreasonable to me that the editor may not have known that publication of images of Muhammed would "deeply offend" Muslims. In this context, it certainly seems that the mere fact that the content of the cartoon might, or even probably would, be offensive is likely not enough. The term "deeply" offensive, especially when being applied to a subject such as a political cartoon, might reasonably require the prosecutor to conclude that the editor needed to understand, in this context, that Muslims find the very depiction of Muhammed to be particularly offensive. Perhaps I am naive, but I suspect that the vast majority of non-Muslims had no idea how offensive Muslims find any depiction of Muhammed prior to this editor's publication.

Second, even assuming that the editor knew or should have known at the time of publication that publishing the cartoons would be "deeply offensive" to Muslims, the Danish law would further require a showing that he "intended to stir hatred and ridicule with their publication." In this regard it seems plausible that the editor may have had any of a myriad of other intents. Further, proof of a specific intent, especially one to stir hatred and ridicule, could be exceedingly difficult; at this point there does not seem to be any evidence to suggest this was the editor's intent, and Freamon does not suggest any such evidence.

In light of the questions surrounding both of the key elements, my disagreement is with Freamon's characterization of the prosecutor's decision not to pursue criminal charges as "a patent abuse of discretion and a blatantly political decision." Perhaps this is arguably a close case or one where a case can be made for prosecution, but the exercise of prosecutorial discretion in such a close case does not equate to patent abuse or blatant politicization. If there is, strong and clear evidence to suggest that the editor did know how "deeply offensive" these cartoons would be and that he did choose to publish them with the intent to "stir hatred and ridicule," then perhaps Freamon's conclusion is correct. Otherwise, this appears more a case where the prosecutor may have had to make a close call depending on the available evidence and the likelihood of ultimate success. To suggest that the call should have been in favor of prosecution simply to curb "skinheadism and anti-Muslim and anti-immigrant violence" is to suggest that the discretion should have been exercised to make a political statement, rather than as a true discretionary decision based on what prosecutors have to consider in every case, the potential charges, the evidence, and the likelihood of successfully using public resources to seek a conviction.

3. Featured Non-Law-Oriented Site.

This week's featured non-law-oriented site is Snopes is the single best resource on the internet for urban legends, email hoaxes, and the like. We all have those friends who persist in sending us emails proclaiming that Bill Gates or some company is tracking an email and if it gets forwarded to enough people we will get some cash reward, or that Oliver North warned Congress about Osama Bin Laden back in 1987, or some other ridiculous chain-hoax-scam email. Snopes has the scoop on all of them, complete with thorough research and documentation of sources.

So the next time you get an email including photos that purport to be of George Bush holding a book upside down or a woman smuggled into the US in the dash of a car, you can find out whether they are phony or real.

4. Featured Just-For-Fun Site.

Finally, this week's featured just-for-fun site is Andrew McClurg's Legal Humor Headquarters. This is a great site for all sorts of legal related humor, including weird legal news, strange judicial opinions, and links to other law and legal humor related sites. If you need a good laugh, go check it out.

Previous Friday Fantastic Four Posts:
February 10, 2006 (FFF #5)
January 27, 2006 (FFF #4)
January 20, 2006 (FFF #3)
January 6, 2006 (FFF #2)
December 30, 2005 (FFF #1)

Thursday, February 23, 2006

Special License Plates for Repeat Drunk Drivers.

Lawmakers in Maryland are currently debating a number of bills addressing drunk driving. One of the bills, introduced by Montgomery County Delegate Herman L. Taylor, Jr., would require the state's Motor Vehicle Administration to issue special license plates to people convicted of at least two drunk driving offenses. NBC4.TV reports:

It's intended to track people who have had two or more offenses dealing with drunken driving," Taylor said.

The license plates would contain the letters "DUI" in bold. Taylor said a drunken driver struck him last May, and at the time of the crash, police had no idea that person was a multiple offender.

Taylor considers the DUI plate an ounce of prevention because it gives police a license to stop the driver at any time.

"(The bill) will allow (police) to, without probable cause, pull them over and check" their driving records, Taylor said.

Other states currently engage in similar measures, despite criminal defense lawyers' questions about possible civil rights questions concerning such plates. Ohio, for example, issues habitual drunken drivers a yellow license plate with red numbers; Oregon and Washington put a "zebra" sticker over the plate of habitual offenders.

Interesting. This, of course, does not prevent repeat offenders from driving somebody else's car without the "scarlet letter" plate, and it also makes somebody else driving a repeat offender's car appear to be a repeat offender. But innovation in the area of preventing drunk driving is necessary, and if this makes any difference at all maybe it's worth looking into.

For some incredibly comprehensive information about drunk driving laws across the country, including pending legislation and hearing dates in every state, check out The National Hardcore Drunk Driver Project (.pdf files used heavily).

Thursday Morning Follow-ups.

A couple of follow-ups this morning to earlier posts:

California and the Postponed Execution of Morales:

The original Kierkegaard Lives post about Michael Morales and California's indefinite postponment of his execution for lack of any medical professional willing to take part in the lethal injection is: HERE (February 22, 2006).

This morning brings a couple of updates and further commentary:

How Appealing (February 23, 2006) has a post with lots of links to follow-up commentary about what impact this particular California case and its difficulties will have on the future state of lethal injection nationwide. Potentially far-ranging ramifications. is reporting about the effect this delay is having on the victim's family. The victim's father believes that "the whole judicial system went to hell." is also reporting on an AP story concluding that the delay of the Morales execution amounts to a complete moratorium on executions in California, home to the nation's largest death row.

Sentencing Law & Policy has a post compiling other headlines, editorials, and commentary about the Morales case.

SCOTUS Decision to Take Partial-Birth Abortion Case:
The original Kierkegaard Lives post about the SCOTUS decision to take the partial-birth abortion case out of Nebraska is: HERE (February 21, 2006).

This morning, How Appealing has a post containing links to a number of news stories from across the nation about the case and the potential signficance of the Roberts and Alito votes.

Wednesday, February 22, 2006

Patriot Guard Bikers vs. Fred Phelps.

The "A**Hole of the Week" is usually Pooh's territory. So I'll stop short of calling the "Reverend" Fred Phelps an a**hole. But if ever an a**hole grew legs and walked, this guy has to be one.

Most people have probably heard of Phelps in one context or another. He runs a despicable website aimed at hate-mongering. He is the "head" of the Westboro Baptist Church of Topeka, Kansas. According to the Anti-Defamation League page on Phelps and WBC:

Incorporated in 1967 as a not-for-profit organization, the virulently homophobic Westboro Baptist Church (WBC) considers itself an "Old School (or, Primitive)" Baptist Church. The Church is led by the septuagenarian Reverend Fred Waldron Phelps Sr., and many WBC congregants are related to Phelps by blood. His wife, several of his children and dozens of his grandchildren frequent the church.

While WBC has picketed the gay community at hundreds of events nationwide, most of the individuals protested by the Church are not homosexual. In fact, WBC most often targets people it mistakenly claims are gay or those it believes to be encouraging homosexuality. Many WBC fliers emphasize the race or religion of these individuals, suggesting that the Church's hate spreads beyond its abhorrence of homosexuality. What appears to be anti-gay rhetoric is often a vehicle for WBC's anti-Semitism, hatred of other Christians, and even racism, though in the 1980s Fred Phelps received awards from the Greater Kansas City Chapter of Blacks in Government and the Bonner Springs branch of the NAACP for his work on behalf of Black clients.

Trained as a lawyer, Fred Phelps was disbarred in 1979 by the Kansas Supreme Court, which asserted that he had "little regard for the ethics of his profession." The formal complaint against Phelps charged that he misrepresented the truth in a motion for a new trial in a case he had brought, and that he held the defendant in the case up to "unnecessary public ridicule for which there is no basis in fact." Following his disbarment from Kansas State courts, Phelps continued to practice law in Federal courts. In 1985, nine Federal court judges filed a disciplinary complaint charging him and six of his family members, all attorneys, with making false accusations against them. The Phelpses fought the complaint but lost. In 1989, Fred Phelps agreed to surrender his license to practice law in Federal court in exchange for the Federal judges allowing the other members of his family to continue practicing in Federal court.

In 1991, WBC staged its first public demonstration, targeting a park in Topeka allegedly frequented by gays. Thousands of protests have followed, and WBC shows no sign of slowing down. In addition to speeches on the picket lines, the Church spreads its hateful message via faxed fliers and "News Releases." These faxed documents also appear at WBC's notorious Web site,, along with photos of Church pickets and a schedule of upcoming demonstrations. A second WBC Web site,, contends that the United States is "doomed" because it supports gays. According to Fred Phelps, "God invented the Internet for us to preach on."

Phelps and WBC regularly picket and demonstrate all over the country to speak out against homosexuality and the gay community. Now, Phelps has added a new target for his disgusting hate-speech: the families of fallen American soldiers. Phelps has started another disgusting website and he and his "church" (comprised primarily of his family and extended family members) have started traveling around the country to picket and demonstrate at the funerals of fallen American soldiers.

A big part of Phelps' protests at these funerals is the inclusion of protest signs "thanking" God for IEDs (improvised explosive devices) that are a major killer of American soldiers in Iraq and signs "thanking" God for 9/11. Phelps and his fellow protestors (again, primarily family and extended family members) demonstrate at these funerals and proclaim that the deaths of American soldiers in Iraq are divine punishment for a country that harbors homosexuals and suggest that the soldiers themselves (and their grieving family members) are homosexual themselves and were punished by being killed in Iraq.

According to the AP, "[a]t least 14 states are considering laws aimed at the funeral protesters, who at a recent memorial service at Fort Campbell wrapped themselves in upside-down American flags. They danced and sang impromptu songs peppered with vulgarities that condemned homosexuals and soldiers."

Aside from the legislative response, however, is the response of a group of bikers calling themselves"The Patriot Guard Riders". The group

started back in early August of 2005 with the American Legion Riders chapter 136 from Kansas. They were appalled to hear that a fallen hero’s memory was being tarnished by misguided religious zealots who were protesting at funerals. They decided to do something about it. At the ALR 136 August meeting, Director : Chuck " Pappy " Barshney appointed members, Terry “Darkhorse” Houck, Cregg “Bronco 6” Hansen, Steve “McDaddy” McDonald, and Bill ”Wild Bill” Logan to form a committee to strategize and form a battle plan to combat Fred Phelps and the Westboro Baptist Church.

When they heard that the WBC was going to protest at the Funeral of Sgt. John Doles in Chelsea, Oklahoma, they established a Mission Statement, which included getting the families permission and contacting Law Enforcement and other Motorcycle Groups in Oklahoma. They agreed that their ultimate goal was to get veterans and motorcycle organizations involved in every state so that each state could handle the situation internally and not rely on other states to do the job. They were very successful in mustering riders to honor Sgt. Doles and limiting the intrusion by the WBC.

After the Chelsea Mission the Kansas American Legion Riders wanted all Motorcycle Groups/ Organizations to be recongnized . On the 18th of Oct. 2005 the Patriot Guard name was established and was announced on the 27th of Oct. ,2005 to the 100 + motorcyclists present at the Tonganoxie Mission to Honor Spc Lucas Frantz .

Following the missions in South Haven, KS and a later ride in Edmond, OK, Jeff “Twister” Brown, from Broken Arrow, OK, decided to do more than just ride. He saw a need to get a strong nation-wide communications and recruiting program in place. He contacted the original AL riders in Kansas and told them of his plans. They openly shared their experiences, suggestions, and encouragement. Within a matter of days, Brown had formed the Patriot Guard Riders and began a nation-wide campaign to garner support.

Similarly, after a mission ride in Greeley, CO, Hugh Knaus and Jason “Waldo” Wallin answered the call of the newly formed Patriot Guard Riders, becoming the national webmaster and communications director, respectively. Within a matter of days, a mission statement was refined and a website was built, rebuilt, and launched. A call immediately went out to individual riders and groups across the nation to join and ride with the PGR. State Captains were recruited to work more closely with the members in their area.

The growth has been phenomenal. Within a week their membership included many riders from associations like the VFW, American Legion, Rolling Thunder, ABATE, Combat Vets Motorcycle Association, Intruder Alert, Leathernecks Motorcycle Club, and almost five hundred individual riders. To the credit of Hugh and “Waldo”, the PGR website had received almost 566,000 hits in the first two weeks! Patriots from all over America and several foreign countries responded. Emails were pouring in from people wanting to support and join the newly formed PGR.

The AP reports that the group is more than 5,000 strong and is riding to funerals where Phelps and his WBC have protests planned. The PGR bikers shield the families of the fallen soldiers from the WBC protesters, and overshadow the hate speech of Phelps' group with "patriotic chants and a sea of red, white, and blue flags." The group's Kentucky captain, Don Woodrick, told the Ap that "[t]he most important thing we can do is let families know that the nation cares. When a total stranger gets on a motorcycle in the middle of winter and drives 300 miles to hold a flag, that makes a powerful statement." Indeed. And a refreshing statement in the face of Phelps' group, no matter your position on the war.

"This is just the right thing to do. This is something America didn't do in the '70s," said Kurt Mayer, the group's national spokesman. "Whether we agree with why we're over there, these soldiers are dying to protect our freedoms."

**UPDATE: After composing this post, I see that readeriam already posted on it. Perhaps there's something to the old adage about great minds and such!

**UPDATE: May 10, 2006:
Kierkegaard Lives Update Post: House Passes Anti-Protest Bill.

California Postpones Execution For Lack of Doctor Participation.

Michael Morales was convicted in 1983 of murdering a 17 year old girl. Morales was scheduled to be executed on February 21. According to the National Coalition to Abolish the Death Penalty bio page on Morales:

Morales, along with cousin and co-defendant Rick Ortega, raped Winchell and beat her to death in retaliation for her having a romantic relationship with Ortega’s lover. The crime occurred in San Joaquin County, but the trial was held in Ventura County due to the amount of pre-trial coverage. Morales was 21 years old at the time of the crime.

Morales argued that the chemical cocktail to be used in his lethal injection violates the Eighth Amendment prohibition against cruel and unusual punishment. Morales argued that the drugs could cause the prisoner to suffer excrutiating pain from the last two chemicals if he were not fully sedated. Last week, U.S. District Judge Jeremy Fogel ruled that California had to change the drugs it uses when executing prisoners, or skip the usual drugs used in California and instead execute Morales with a lethal overdose of a sedative. On February 19, the Ninth Circuit instead approved the presence of anesthesiologists at the exectuion to ensure that Morales would be unconscious during the execution.

Yesterday, the anesthesiologists refused to participate due to ethical concerns. According to the AP:

[the]anesthesiologists who were going to be present objected that they might have to advise the executioner if the inmate woke up or appeared to suffer pain.

"Any such intervention would clearly be medically unethical," the doctors, whose identities were not released, said in a statement. "As a result, we have withdrawn from participation in this current process."

California initially intended to go forward with the second option allowed by Fogel's order, executing Morales with a lethal overdose of a sedative instead of the usual chemical cocktail. Fogel's order, however, "said the sedative must be administered in the execution chamber by a person who is licensed by the state to inject medications intravenously. That group would include doctors, nurses and other medical technicians."

California was unable to find a doctor, nurse, or other person licensed to inject the lethal dose of barbiturate. As a result, California was unable to proceed with the execution yesterday. Morales's death warrant expired at 11:59 p.m. yesterday. Now, California must go back to the trial court for a new death warrant. According to the AP story, "[i]t was unclear when the execution would be carried out, but the delay could last for months because of legal questions surrounding California's method of lethal injection."

Jurist article #1 (February 21, 2006)
Jurist article #2 (February 21, 2006) (AP Story: February 21, 2006)
Concurring Opinions Commentary (February 21, 2006) (prior to indefinite delay)
ACS Blog Commentary (February 22, 2006)

**Follow-up Links (February 23, 2006):
How Appealing (February 23, 2006) -- links to lots of commentary about impact of this case on nationwide use of lethal injection. (February 23, 2006) -- story about how the victim's family is dealing with the delay. (February 23, 2006) -- AP story about delay amounting to moratorium on execution in California.
Sentencing Law & Policy (February 23, 2006) -- compilation of headlines, editorials, and commentary about the Morales case.

Tuesday, February 21, 2006

Poor Etiquette in Email May Not Harm Your Career Afterall.


Last week I posted about Dianna Abdala and her email exchange with a potential employer. I commented on the unprofessionalism of both parties involved. The gist of the stories linked to in that post was that this kind of behavior (emailing unprofessional comments to a potential employer) could be fatal to a young attorney's career.

Well, perhaps we need to slow down.

According to a a Cubicle Culture article by Jared Sandberg on the WSJ online today, such emails are not always career-killers after all. Sandberg notes that "[t]hat's because in the rough and tumble of business, bad behavior is sometimes admired, and good behavior isn't necessarily rewarded. Take, for example, corporate whistleblowers, who don't exactly get promoted for their efforts and often have to turn to the law to protect themselves . . .." Further, Sandberg points to prior "infamous" emailers who have demonstrated that these kinds of email gaffes don't always kill a career. Take, for example, the story of Jonas Blank, a summer associate from New York's giant-firm Skadden, Arps, Slate, Meagher & Flom:

In 2003, Jonas Blank, a summer associate, sent an email in which he described his job at Skadden, Arps, Slate, Meagher & Flom. "I'm busy doing jack," he wrote. "Went to a nice 2hr sushi lunch today at Sushi Zen. Nice place. Spent the rest of the day typing emails and [gabbing] with people."

But Mr. Blank inadvertently sent the missive to a group of 40 colleagues, about half of whom were partners at the law firm. Needless to say, at least one of the recipients flicked the email into the wider ether. Mr. Blank subsequently responded with a tortured apology: "I am thoroughly and utterly ashamed and embarrassed not only by my behavior but by the implicit reflection such behavior could have on the firm."

Despite that episode, Mr. Blank got a full-time position at Skadden and still works there today, though he is less publicly communicative than before: "I really can't comment on it in any way," he said last week. Added Carol Sprague, director of attorney hiring at Skadden: "He recognized that he had made a mistake and then really worked hard all summer and proved that he was an intelligent, hard-working person."

In the Abdalla situation, both Abdalla and the would-be-employer share the opinion that the episode probably won't adversely affect her career:

As for Ms. Abdala, she says a mea culpa "will never happen." She's living on funds provided by her father and has rented office space for her own practice. "I've never been the type to work under someone," she says.

And Mr. Korman? He calls Ms. Abdala's behavior "preposterous" but still credits her with having high energy and "spunk." And despite all the chatter about how the incident will hurt her, he says, "I don't think that anything that's happened throws an obstacle in her path."

In fact, that's something the two almost agree on. "It really isn't going to affect my career," says Ms. Abdala, "and if it does, it's probably for the better."

At the very least she's gotten her name out there, for better or worse. And I'm sure that somebody will pick up on whatever happens with her and it will make the blog-o-sphere headlines.

Partial Birth Abortion Ban to SCOTUS.

"Breaking News":

According to the Associated Press:

The Supreme Court said Tuesday it will consider the constitutionality of banning a type of late-term abortion, teeing up a contentious issue for a newly-constituted court already in a state of flux over privacy rights.
. . .
The federal Partial-Birth Abortion Ban Act prohibits a certain type of abortion, generally carried out in the second or third trimester, in which a fetus is partially removed from the womb, and the skull is punctured or crushed.

Justices on a 9-0 vote in a New Hampshire case reaffirmed in January that states can require parental involvement in abortion decisions and that state restrictions must have an exception to protect the mother's health.

The federal law in the current case has no health exception, but defenders maintain that the procedure is never medically necessary to protect a woman's health.
. . .
The case that will be heard this fall comes to the Supreme Court from Nebraska, where the federal law was challenged on behalf of physicians. Doctors who perform the procedure contend that it is the safest method of abortion when the mother's health is threatened by heart disease, high blood pressure or cancer.

If you really want to, you can read the 8th Circuit's ruling under review HERE and the Act at issue HERE.

There is more information from:
How Appealing.

**FOLLOW-UP Links (February 23, 2006):
How Appealing (February 23, 2006) -- links to a number of articles from across the country about the case and speculation about the significance of Roberts' and Alito's votes.

Friday, February 17, 2006

Harry Whittington's Blog.

... and the "spoof blogs fraternity" has a new member.

Harry Whittington's Blog.

The potential poor taste of this seems a bit diminished by Whittington's release from the hospital. Some of the posts are at least mildly entertaining. It's not on par with Samuel Alito's blog, though.

The Perils of E-Mail and the "Small" Legal Community.

Perhaps you have received an email about this already. I received a couple of them from various mailing lists that I susbscribe to. The subject of the email is the encounter between a young attorney named "Dianna Abdala" and a potential legal employer named "William Korman."

In a nutshell, here's the story:

Abdala applied for a job with Korman in his criminal defense practice. Korman offered Abdala a job, she accepted, and they agreed upon a starting date. Korman then decided to hire two attorneys, instead of one, and decided he had to reduce the salary he was willing to pay Abdala. When Korman notified Abdala of the reduction in salary, Abdala indicated that she'd have to give the offer more thought. Abdala eventually decided to inform Korman that she did not want to accept the job under the new terms -- by way of an email sent on the Friday evening before the Super Bowl. The initial email, although containing a misspelling, was generally cordial:

"Dear Attorney Korman: At this time, I am writing to inform you that I will not be accepting your offer. After careful consideration, I have come to the conclusion that the pay you are offering would neither fulfill me nor support the lifestyle I am living in light of the work I would be doing for you. I have decided instead to work for myself, and reap 100% of the benefits that I (sic) sew. Thank you for the interviews."

Korman attempted to get in touch with Abdala via telephone to discuss the situation, but was unsuccessful. Abdala left a voicemail, again declining the offer. According to the story from Lawyers Weekly, "here's where things go haywire." Here's what happened next:

Abdala countered with the following email: "A real lawyer would have put the contract into writing and not exercised any such reliance until he did so. Again, thank you."

Oh man.

It's one thing to be a little snippy with someone who has offered you a job, but to imply that they are not a "real lawyer"? Korman, by the way, has been a member of the bar for 10 years and in 2004 was named one of Lawyers Weekly's "Up and Coming Lawyers," for his burgeoning defense practice.

Korman, of course, could not allow this to go unanswered. I picture Samuel L. Jackson's character in "Pulp Fiction," gun in hand, saying "Are you finished? Well, allow me to retort."

Wrote Korman: "Thank you for the refresher course on contracts. This is not a bar exam question. You need to realize that this is a very small legal community, especially the criminal defense bar. Do you really want to start pissing off more experienced lawyers at this early stage of your career?"

It gets better. Or worse. Or both, really.

Abdala responded with the following email: "bla bla bla."

That sound that you hear is the sound of bridges burning.

Bla bla bla.

That's the entire email. As an observer said to me, "she didn't even bother to spell 'blah' correctly."

Sadly, when Abdala typed those three syllables of gibberish, she made an electronic record of her own impetuousness, a record that may haunt her for quite some time.

How do I know? Because I was one of roughly seven zillion people who received a copy of the email this week. Thanks to an unstoppable phalanx of forwarders, the brief exchange has made its way to a countless number of attorneys after Korman shared it with a friend and allowed him to share it with a few others.

Fueled by attorneys' curiosity that a young attorney would fire away at a would-be employer with so much vigor, the email chain made its way from firm to firm with the speed and recklessness of Apolo Ohno after six caffe lattes. It went to Rindler Morgan and Gadsby Hannah, to Mintz Levin and Sally & Fitch, to Nixon Peabody and Wilmer Hale.

It's been across the state and out of state. And to Europe. Seriously

The upshot of all this is that the relatively small legal community now knows all about the email conversations between this young attorney and her would-be employer. Although the Lawyers Weekly article makes this story out to be all about the unprofessionalism and "bridge-burning" of Abdala, a review of the above email exchange, to me, reflects poor judgment by both Abdala and Korman. Is it a bad idea, and potentially a career damaging one, to respond to a potential employer with an email like "bla bla bla"? Sure. But what does it say about Korman that his idea of a good response to Abdala's rejection of his offer - after he tried to change the terms *after* the job had been accepted and a start date agreed upon -- was to accuse Abdala of being immature and unprofessional? Certainly he is not free of blame in this incident.

The moral of the story is certainly that we should all rememeber just how easily email can take on a life of its own and create a written record of our poor judgments and poor choices of words.

**FOLLOWUP: February 21, 2006 post about how this kind of behavior may not be a career-killer afterall.

An E-Bay Ad You Don't Want to Miss.

Wow! I mean, what else can you say? Just, WOW!

You don't want to miss out on this e-bay auction on the "General Lee-Roy". Sweet. But you better hurry. At the time of this posting, the current bid is $4,000.

According to the auction's description:

Vehicle Description

1997 General Lee-Roy Metro Geo. One of a kind. Runs Great. Thousands invested! 35 MPG! WOW!!! This baby will get MORE attention than a 69 Charger. Has a working Dixie horn with 118 dcb. ( Thats loud ). Tires are in new condition. Headlights faded, I hear you can get them polished for about 30 bucks. If you are the winning bidder I will throw in a GIT-R-DONE hat for free. Also comes with a Good Ole Boy CD. I own a 2002 Plymouth prowler and it don"t turn heads like this baby. You will have to beat the redneck girls off you if you win the General Lee-Roy. If you are married, Have a dog named Blue, Live in a new double wide, and don't want to lose your wife.....THIS CHICK GITTER AIN'T FUR YOU!!!!!!!!!!

... yep, it'll get MORE attention than a 69 Charger. What else can you say?

"Kierkegaard Lives" Archives Return.

After several weeks and almost a dozen emails to "Blogger Support" in an attempt to find out why my "Archives" blog was entirely deleted without any explanation, I have finally managed to get a specific and personal response. A support worker named "Samantha" has restored the Archives blog and assured me that the problem won't happen again. As I suspected, the Archives blog was "flagged" by Blogger's anti-spam software as a splog and was summarily removed.

I understand that, I guess. My problem was that I had to send so many emails to actually get anyone to take a look at the problem and give me any kind of real response. I got several automated responses directing me to Blogger's "FAQ" and such, all of which, of course, provided no help at all.

Anyway. The good news is that Samantha finally came through for me. The Archives are back up over on the sidebar. I'll try to get them updated soon.

Update: Foster Parents Who "Caged" Children.

Back on January 19, 2006, I posted a short piece about the Gravelles, an Ohio couple accused of abusing a number of special needs children who were in their care. The story was about how this couple had kept a number of these special needs children in wood and chicken-wire cages comparable to dog kennels. The couple's response to the charges was to suggest the cages were necessary to keep the children from harming themselves or each other. The couple was trying to get the children back because they had removed the wire, alarms, and doors from the cages -- not that they didn't want to keep putting the children into cages, just no longer with alarms and doors.

The couple has now been indicted on charges of, among other things, child endangerment. The couple has also been accused of falsifying adoption applications and lying under oath to get adoption funding. Naturally, the couple is claiming that these charges are all just part of a big government "vendetta" against them -- it has nothing to do with caging children like animals or anything. The couple's attorney says "The Gravelles are good people and they were trying to do the right thing by raising these children and taking on an almost impossible task" and criticizes the Ohio county for trying to ruin the couple's life.

According to the latest article:

[The] husband told the station he had no regrets about the way the children were handled.

"This is what we chose to do and to look back and say would I have done it differently? No. I did it the way that we thought we needed to do and to keep our children safe," he said.

If convicted, the couple could face up to 5 years in prison. Of course locking them up wouldn't really be to punish or anything, but, rather, just to protect them from harming themselves or others.

My January post contains links to other articles about this story.

Thursday, February 16, 2006

No More Hopscotch in Lincoln, Nebraska.

Courtesy of an Omaha, Nebraska TV Station's website comes this example of prioritizing the attack on crime and societal evil.

An art gallery owner in Lincoln, Nebraska, uses chalk to draw directions to his gallery on Lincoln's public sidewalks. Somebody apparently didn't like the chalk directions, so they complained to the police (because why go to the vile perpetrator himself, right?). The police promptly ticketed the gallery director for "advertising without a license." In addition, police suggested the chalk directions on the sidewalk violate a city ordinance prohibited vandalism which precludes marring, defacing, or damaging any public or private property.

According to the news story:

"My first thought was that it was ridiculous, especially because the initial charges were vandalism," Lynch said.

Lynch and Gomez said no one had ever complained before about the patterns, and they even used a chalk-and-water mix that was easy to remove. With that in mind, they said, they wished police had taken a different approach.

"The reaction was a citation. Not like, ' Hey, what is this about?' There was no dialogue. It was just strictly a ticket," Lynch said.

But the police insist that they acted properly in bringing down the hammer and issuing a ticket. A police spokesperson said, "We're not picking on anyone, we just want everyone to be aware of the ordinance we do have that prohibits this." The ticket could end up in a fine of between $100 and $500.

The gallery owner gets the last word:

"Are they going to (ticket) children for hopscotch next?" Lynch asked.

Friday, February 10, 2006

The Friday Fantastic Four #5.

1. Featured Law-Oriented Blog.

Today's featured Law-Oriented site is not really a blog. It's State and Local Government on the Net. This is a great resource site for finding information about State Court materials. Every state is listed, with links to that State's court sites. Additionally, there are search features and links to local government or topic specific sites. As a quick resource, this is one of the more comprehensive free sites I've come across.

2. Featured Law Commentary.

Today's featured law commentary comes courtesy of Michael J. Kelly, associate professor of law at Creighton School of Law. The commentary was previously posted at ACS Blog earlier in the week.

In the commentary, Kelly argued that SCOTUS precedent (from the Youngstown case) "still stands today for the proposition that the president cannot increase his power at home by fighting abroad." Kelly notes that "President Bush is trying to do just that." Kelly notes:

By using the external threat of more attacks from foreign terrorists, he believes that he has found an excuse to support his illegal, unwarranted domestic surveillance program. In Youngstown, the Court found that Congress' consideration of a strike-busting mechanism during the Taft-Hartley debates, and their subsequent rejection of this method, prohibited the president from seizing the mills -- as this was a taking of property, which only Congress could do. In the domestic surveillance case, Congress likewise considered a method for undertaking spying activity (amounting to search and seizure); but here they actually adopted legislation -- the Foreign Intelligence Surveillance Act (FISA), which embodied the method in a statutory framework. Obviously, the teaching and applicability of Youngstown was not lost on Senator Graham as it has been on Attorney General Gonzales.

Justice Jackson's concurring opinion in Youngstown said that a president's power is at its "maximum" when he is acting with Congress, but his power moves into a "twilight zone" when he is acting on his own in the face of Congressional silence, and his power is at its "lowest ebb" when he is acting on his own against the implied or express will of Congress. Graham correctly places the president's power to go around FISA and order unwarranted domestic wiretapping in that third category, where his power is at its lowest ebb - as noted in this exchange from the hearings:

GRAHAM: All I'm saying is that the inherent authority argument, in its application, to me, seems to have no boundaries when it comes to executive decisions in a time of war. It deals the Congress out, it deals the courts out.
GONZALES: Well, the fact that the president, again, may have inherent authority doesn't mean that Congress has no authority in a particular area. And when we look at the words of the Constitution, and there are clear grants of authority to the Congress in a time of war. And so if we're talking about competing constitutional interests, that's when you get into, sort of, the third part of the Jackson analysis.

GRAHAM: That's where we're at right now.

GONZALES: I don't believe that's where we're at right now.

GRAHAM: That's where you're at with me.


GONZALES: Sir, even under the third part of the Jackson analysis -- again, I haven't done the detailed work that, obviously, these kinds of questions requires. These are tough questions -- but I believe that the president does have the authority under the Constitution.

Kelly concludes that "Senator Graham was not the only one to raise the Youngstown case against Gonzales, who should have seen that coming a mile away, but the fact that a conservative Republican from South Carolina took the position is indicative of the precarious nature of the Attorney General's legal position."

3. Featured Non-Law-Oriented Blog.

This week's featured Non-Law-Oriented Blog is Poker Abby. Basically the site provides a sort of "Dear Abby" approach to Poker from somebody professing to be somewhat of a poker expert. There are, of course, posts and questions about non-poker topics, too. But some of the poker discussion, especially some of the odds-talk, etc., is pretty interesting and enlightening if you are an aspiring poker player. [insert standard disclaimer about the evils of gambling and playing with caution, etc.]

4. Featured Just-For-Fun Site.

Today's "Just For Fun" Site is "Arts and Kids", a site devoted to artwork by and for children. The site has lots of things to explore, especially if you have a young art-lover in your home. Check out the Galleries or the Coloring Book pages or enter the Art Contest. You can literally spend hours at this site if you have a kid who enjoys art. There are even resources for Teachers.

Previous Friday Fantastic Four Posts:
January 27, 2006
January 20, 2006
January 6, 2006
December 30, 2005

Thursday, February 09, 2006

Kierkegaard Returns: The Highlights.

I'm back to my trusty computer again. Ready to try to get all caught up on the happenings in the legal world over the past few days. Here's a few quick highlights of what I've seen in my initial scanning of the blogroll and notable posts over the past few days:

NSA Surveillance Updates

Obviously lots of developments in the NSA Surveillance story. I've posted a bunch of updates to the Link Repository. A couple of interesting updates include these:

According to The Washington Post

Twice in the past four years, a top Justice Department lawyer warned the presiding judge of a secret surveillance court that information overheard in President Bush's eavesdropping program may have been improperly used to obtain wiretap warrants in the court, according to two sources with knowledge of those events.

. . .

Shortly after the warrantless eavesdropping program began, then-NSA Director Michael V. Hayden and Ashcroft made clear in private meetings that the president wanted to detect possible terrorist activity before another attack. They also made clear that, in such a broad hunt for suspicious patterns and activities, the government could never meet the FISA court's probable-cause requirement, government officials said.

So it confused the FISA court judges when, in their recent public defense of the program, Hayden and Attorney General Alberto R. Gonzales insisted that NSA analysts do not listen to calls unless they have a reasonable belief that someone with a known link to terrorism is on one end of the call. At a hearing Monday, Gonzales told the Senate Judiciary Committee that the "reasonable belief" standard is merely the "probable cause" standard by another name.

Several FISA judges said they also remain puzzled by Bush's assertion that the court was not "agile" or "nimble" enough to help catch terrorists. The court had routinely approved emergency wiretaps 72 hours after they had begun, as FISA allows, and the court's actions in the days after the Sept. 11 attacks suggested that its judges were hardly unsympathetic to the needs of their nation at war.

But maybe even more interesting is this post over at The Washington Note. Steven Clemons points out a speech given by President Bush in Buffalo, NY, on April 20, 2004. During that speech, while trying to reassure spectators about the necessity and propriety of The Patriot Act, President Bush said:

So the first thing I want you to think about is, when you hear Patriot Act, is that we changed the law and the bureaucratic mind-set to allow for the sharing of information. It's vital. And others will describe what that means.

Secondly, there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.

But a roving wiretap means -- it was primarily used for drug lords. A guy, a pretty intelligence drug lord would have a phone, and in old days they could just get a tap on that phone. So guess what he'd do? He'd get him another phone, particularly with the advent of the cell phones. And so he'd start changing cell phones, which made it hard for our DEA types to listen, to run down these guys polluting our streets. And that changed, the law changed on -- roving wiretaps were available for chasing down drug lords. They weren't available for chasing down terrorists, see? And that didn't make any sense in the post-9/11 era. If we couldn't use a tool that we're using against mobsters on terrorists, something needed to happen.

The Patriot Act changed that. So with court order, law enforcement officials can now use what's called roving wiretaps, which will prevent a terrorist from switching cell phones in order to get a message out to one of his buddies.

Thirdly, to give you an example of what we're talking about, there's something called delayed notification warrants. Those are very important. I see some people, first responders nodding their heads about what they mean. These are a common tool used to catch mobsters. In other words, it allows people to collect data before everybody is aware of what's going on. It requires a court order. It requires protection under the law. We couldn't use these against terrorists, but we could use against gangs.

Just for emphasis, here's one portion of that excerpt again:

Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.

Interesting. I may not be the wisest man to walk the earth, but it certainly seems to me that those comments are somewhat contrary to what the administration is now saying about the NSA eavesdropping program.

Apparently Nevada Courts Suck

Last week over at Appellate Law & Practice, there was a post about a recent 9th Circuit Court of Appeals decision by Judge Alex Kozinski calling out the Nevada courts. The opinion starts out pretty ominously:

Petitioner spent 12 years in prison for conduct that is not a crime.

Basically, the Petitioner, Joni Goldyn, opened checking and savings accounts with a Nevada credit union which provided a "check guarantee card." Goldyn proceeded to deplete the funds in her accounts, used up a line of credit, and generated a negative balance. She kept writing checks, however, and the credit union continued to accept the checks because of the credit union guarantee card -- and the credit union continued to cover the checks. Goldyn was ultimately convicted of insufficient funds counts, was sentenced as a habitual criminal, and received FIVE LIFE SENTENCES. (Now I certainly don't want to suggest that fraud isn't serious or that it's ok to keep writing checks with no money or anything else -- but five life sentences? You can KILL people and not get a sentence like that.) In her habeas proceeding, Goldyn argued that she could not have written "bad checks" if the credit union was obligated to cover the checks (which they were).

The 9th Circuit ultimately concluded that Goldyn was correct -- her conduct, no matter how indefensible, was not properly prosecuted under the applicable statute. Then the Court started in on the Nevada court system.

Over the twelve years she spent in prison, Goldyn asserted her innocence seven times before three courts. Yet no court seems to have taken her argument seriously. The Nevada Supreme Court rejected Goldyn's argument with . . . incomplete analysis.
. . .
The state court also mentioned . . . irrelevant fact[s] . . .
. . .
The bottom line is that the checks Goldyn wrote were not bad, and the merchants who accepted her checks were not injured; they were paid in full.
. . .
. . . no rational judicial system would have upheld her conviction. We are saddened and disappointed that the state supreme court unanimously affirmed a conviction carrying multiple life sentences based on such cursory and inadequate review of the record in light of the applicable statute.
. . .
Had the Nevada courts and prosecutor's office taken more seriously their "obligation to serve the cause of justice," . . . Goldyn would not have spent twelve years behind bars for conduct that is not a crime.

Finally, in the last footnote to the opinion, the Court noted:

Because we are granting Goldyn's habeas petition for the reasons expressed above, we do not consider her numerous other claims, some of which raise similarly significant issues that cast further doubt on the state's commitment to the pursuit of justice in this case.

Well, then. I guess that's that.

Matthew Koso: Impregnated 14 Year Old, Married Her, Went to Prison

From Nebraska comes the story of Matthew Koso.

Koso, 23 years of age, impregnated a girl when she was only 13 years old. Shortly after her parents learned she was pregnant, they gave their consent for the girl and Koso to travel to Kansas to get married. The couple was married in Kansas on May 3, 2005. Nebraska Attorney General Jon Bruning did not feel that marriage between the 23 year old and his statutory rape victim was a good thing. So he filed charges against Koso.

Koso pled guilty to a sexual assault charge. On February 7, 2006, Koso was sentenced to 18 to 30 months in prison. Part of what prevented Koso from getting probation was the fact that Koso continued to have sex with the girl after they were married.

Koso's wife urged for leniency at sentencing, telling the judge, "If you send my husband to jail, maybe you'll see my daughter here in 15 years." That's likely. But it's NOT because Koso is being sent to jail; it's because these people see nothing wrong with their situation. The mentality was further evident when friends of the couple were interviewed and made comments like, "You can't go home and love your wife?" [asked Danielle Vollman, a friend of Koso's wife].

This case apparently prompted Kansas to introduce a bill banning marriage for anyone 15 and under and preserving the requirement for parental or judicial consent for those age 16 or 17. What I'm waiting to see is what happens when this guy gets out and his wife is still under the age of 16. Will the couple have enough sense to not engage in further sex, or will they risk additional charges and jail time?


Monday, February 06, 2006

Brief Hiatus


I'm taking a short vacation. I hope to be back to blogging by mid-week.

Have a great early February!


Wednesday, February 01, 2006

Today's Stupid Frivolous Lawsuit.

Women Suing Walmart for Not Carrying Emergency Contraception

According to the AP (via News) comes this story, sure to make the general public have much more feeling that lawyers don't file too many frivolous lawsuits (sarcasm, in case you missed it):

Three Massachusetts women backed by pro-abortion rights groups sued Wal-Mart on Wednesday, saying the retail giant violated a state regulation by failing to stock emergency contraception pills in its pharmacies.

The suit filed in Suffolk Superior Court seeks a court order compelling the company to stock the so-called "morning after pill," in its 44 Wal-Marts and four Sam Club stores in Massachusetts, all of which have pharmacies.

"Wal-Mart apparently thinks it is above the law," said Sam Perkins, a lawyer for the three plaintiffs.

A new state law that took effect late last year following heated debate on Beacon Hill requires all hospitals to provide the morning-after pill to rape victims. It also allows pharmacists to dispense the pill without a prescription, but does not require it.

The suit, backed by Planned Parenthood of Massachusetts, NARAL Pro-Choice Massachusetts and Jane Doe Inc., argues Wal-Mart is violating a state policy that requires pharmacies to provide all "commonly prescribed medicines." They are suing to force compliance with the regulation through the Massachusetts Consumer Protection Act.

Let's revisit two parts of that blurb:
Exhibit 1:

"Wal-Mart apparently thinks it is above the law," said Sam Perkins, a lawyer for the three plaintiffs.

Exhibit 2:

state policy . . . requires pharmacies to provide all "commonly prescribed medicines."

So Sam Perkins (who I thought was a washed out NBA player), is apparently arguing that the morning after pill is a "commonly prescribed medicine." I could be wrong, but I'll go out on a limb and predict that the courts strongly disagree with this. As the article goes on to point out, Walmart's policy is to refer patients to another specific pharmacy if a patient seeks something the pharmacy does not carry. It doesn't sound as if Walmart is holding these women hostage and preventing them from taking their business elsewhere or otherwise affirmatively trying to stop them from getting the pill. Walmart is just deciding not to carry a particular product which, it looks to me, they are not required to carry.

This is just stupid. I hope this gets thrown out quickly and with much publicity.

Jonathan B. Wilson **UPDATE: February 6, 2006**