Still Here, Sort Of

OK, So It's Been A Year and a Half

 Since my last post, about 18 ninths ago, I've had some heath issues that have kept me away from work, and the wonderful world of the criminal law, for about six months, total spread out over three hospitalizations. I haven't posted because I didn't have all that much to say on any of the topics that were bouncing around.

I'm going to try and get my thoughts on some of the latest Supreme Court cases in order, to share with you over the next few weeks. I welcome suggestions for possible topics of discussion.

Not Gone, Yet!

Great balls of fire! I must have died, or something it's been so long since I updated this weblog. Well, it was 'or something' all right. Between work (we lost our part-time assistant, meaning more work for the other attorney in that court, and more work for me to take up the appeals slack that attorney handled) and my teaching an intro to law course, and the family obligations, and a nasty, nasty infection that cost me a lot of time off, a couple of years have slipped away. I feel like a character in a Jimmy Buffett song - specifically "He Went to Paris" where "four of five years slipped away."

Not sure I'm really back - still recovering from being off sick, and came back to the Miller v Alabama decision which affects my office in a handful of cases over the last 30 years, or so. Population dynamics being what they are, the bulk of our juvenile murderers have been sentenced, more or less, on my watch. Well, probably something to write about down the road a bit.

More later.

Still Here, More Less

Well, I see I missed an anniversary -- the Year-Since-I-Last-Posted anniversary, that is. When I last graced these electrons, it was the middle of a bear of a winter here in Baja Great White North, and the work load at work was mind numbing. Things haven't changed all that much in the last 16 (!) months. Well, now it's miserably hot as opposed to miserably cold, but other than than, the beat goes on.

Work is still work. Criminals are still unhappy with their just deserts, a certain subset of appellate defenders still doesn't understand that zealous advocacy does not mean trying the mislead the courts about what happened at trial, either by omission or flagrant out of context quotation, the gray matter still seems to be sucked out of judges' brains when they climb into that black robe, and CSI is still science fiction.

That last is something I may write about if I get enough time to put my thoughts into some coherent order. There is at least one study by a trial court judge that seems to indicate that there is no such thing as the CSI effect, or, if there is, it gets lost in the noise of factors like skill of counsel, nature of the crime, characteristics of defendant/victim, and so on. But it didn't strike me as having a particularly rigorous methodology when I read it, admittedly, quite a while ago. And jurors say the darnedest things to the trial attorneys after the verdict.

Anyway, that's it for now.

John Lennon Was Wrong

Did He Really Say It? Probably.

John Lennon said, sometime about 27 years ago, "Life is what happens to you while you're busy making other plans."

He was wrong. Work is what happens to you when you are busy making other plans. And, boy, did work happen to me. It's been one, steady grind since before Thanksgiving. And the worst part of the whole megillah is that the things that are coming in are not very interesting. In fact, they are downright boring. I should spell that with a capital B.

Oh, yeah. The phrase is part of the lyrics of Beautiful Boy from Double Fantasy, Lennon's last album. The song is about his son, Sean.

I'M A WHAT?

One Of Those Silly "What Sort of {Fill In The Blank} Are You?" Quizzes That Actually Makes Sense, of A Sort. You scored as A college textbook. You're an authority on something, you just know it. Everyone else does, too, but that doesn't mean they like you. Since you think very highly of everything you say, you charge a pretty penny to entertain your listeners. Those forced to pay do so grudgingly and try to defray the costs of learning from you by selling portions of their access to your charms to others. As a result of this speedy dissemination of your knowledge, you constantly add to your repertoire--and then hike your price. Despite your usefullness, which is rarely in doubt, nobody likes you. They find you didactic, boring and irrelevant--but still necessary. A college textbook 61% A classic novel 61% A coloring book 57% A paperback romance novel 54% Poetry 32% An electronics user's manual 29% The back of a froot loops box 25% Your Literary Personality created with QuizFarm.com

What I find interesting is the fact that I tied for a Classic Novel and was barely ahead of a Coloring Book or a Paperback Romance Novel. Go figure.

If Anyone Cares, Here's The Classic Novel Blurb

You scored as A classic novel. Almost everyone showers praise upon you for your depth and enduring relevance. According to your acolytes, everything you say is timeless, erudite and meaingful. Of course, none of them actually listen to you. Nobody listens to you at all, but it's fashionable to claim you as a friend. Fond of obscure words, antiquated notions and libraries, you never have a problem finding someone to hang out with. The fact that they end up using you to balance their kitchen tables is an unfortunate side effect, but you're used to being used for others' benefit. Oh the burden of being Great. A college textbook 61% A classic novel 61% A coloring book 57% A paperback romance novel 54% Poetry 32% An electronics user's manual 29% The back of a froot loops box 25% Your Literary Personality created with QuizFarm.com I kind of agree with this one, too. Geez, no wonder no one reads this thing.

Be On The Cutting Edge!

What Cutting Edge, You Ask?

The cutting edge of electronic publication, that's what cutting edge. What, you ask, the Hell does this have to do with Law, Prosecution, all that stuff up in the header? Well, I actually can make the connection.

One of the hot "new" areas of law is Intellectual Property. New, you understand, in the sense that people outside the patent bar and the practice of entertainment law actually have heard of the subject. When I went to law school, 20-mumble years ago, there was one, three credit, intellectual property survey course at my law school at a large, Midwestern research university. Last year, one of our interns graduated from an other law school in the state, also at a big, Midwestern research university, with an actual endorsement on his degree that he had specialized in intellectual property law. Of the roughly 90 credit hours needed for his JD, almost a third of them were IP courses.

Electronic publishing, and its benefits and pitfalls and potential to make money, is still publishing and the question of copyright is a large part of the discussion. The purpose of Digital Rights Management, the digital millennium Copyright Act, and other, even more obnoxious legislation pushed by the MPAA, the RIAA and other trade organizations is to protect copyright. That is to say, money. They can dress it up any way they want, the bottom line is still the bottom line. Because this is law, and law that includes treaties and international trade agreements as well as statutory law in virtually every country on earth, lawyers are involved. Both civil and criminal penalties are involved in the law of copyright. So there -- That's the link.
And this is the electronic publication I want to talk to you about. Jim Baen's Universe. For those of you who have followed this blog from the early days, it will come as no surprise that Mister DA is a science fiction fan. I've talked about my DVD collecting habits in the past, particularly Stargate: SG-1 and others. Until very recently being an SF fan meant a science fiction reader almost exclusively. The movies and television just didn't provide all that much in the way of worthwhile SF for the enthusiast, adult or teenager, so if you wanted SF, you read books and/or comic books. I started reading the stuff so long ago, I still cringe, just a little bit, at the term Sci-Fi. But I'm getting used to it. Today, it's a very different world in SF fandom. There are media fans of the various SF video franchises who have never been exposed to written SF outside their particular niche. Star Wars fans may read a Star Wars novel, but may have never heard of Robert A. Heinlein or John W. Campbell or Isaac Asimov, let alone contemporary authors like Larry Niven or John Scalzi or Charlie Stross. But this is a digression. If you are not a reader of fiction, Jim Baen's Universe is not going to make you one. If you are a reader, and anything of a video SF fan, Jim Baen's Universe wants to make you a reader of quality science fiction and fantasy by offering an electronic magazine that showcases the best of the past the present and the future of written science fiction.

Jim Baen had very strong ideas on the proper place of copyright in the world. With Baen Books he was a (maybe the) pioneer in providing electronic versions of his authors' work for reasonable prices, in multiple formats, with no Digital Rights Management nonsense. Jim Baen's Universe works the same way as Baen Books - copious amounts of free stuff combined with multiple formats and ease of access once you've paid for something.

Go to this site http://www.baens-universe.com/ to see what I'm talking about. The third issue is out and there are a number of stories and articles available on the page, in full, for you to sample. The subscription rate is $30 for six issues. The first issues have been running about 200, 000 words, plus illustrations, so it's something of a bargain. You can also read the third installment of editor Eric Flint's analysis of why copyright is a necessary evil. The third installment discusses how long is long enough.

Enough from me. Go take a look. Let me know what you think.

Still Here

No, I haven't {DiedQuit ProsecutionExperienced My Own Personal Rapture}, yet!

Still working my fingers to the bone on appeals. Still having problems finding stuff to write about that won't blow my cover. Although the declining number of folks who check this page may make that a moot point.

I can make a recommendation, though. If you want a real picture of what it means to be a prosecutor specializing in child abuse prosecutions get your hands on Bronx DA by Serena Straus. Amazon Link here.

Ms. Straus is also a blogger. Blogspot Link here.

Yes, I'm Compusive. So Sue Me.

But Not All That Compulsive.

Yes, I did re-edit the last entry to make it prettier on the page. Every time I looked in, it bugged me. Just not enough to do anything about it until today. So I'm not that big a nerd.

The inability of Blogger to actually deal with block quotes and other simple-minded formatting stuff (like tabs, for God's sake) is one of the low level irritants that makes it easy to keep putting off adding entries to this page.

And, yes, I know about the Word add-in that will let me compose in Word and post to the blog. Have I mentioned my near pathological dislike of Word? My path to modern (Ha!) word processing was Scripsit (big thumbs up and props as a real OTMCU [Old Time MicroComputer User] to anyone who knows what that was without resorting to Google or some other search engine), WordStar 3.3 to WordStar 4 (which, running on a Sanyo PC, got me through law school), WordStar 5 to WordStar 5.5 to WordPerfect 5 for DOS to WordPerfect 6 for Windows to WP 7, 8, 9, and now 10. At about the time we were upgrading to WP 8, I had to come to some accommodation with Word in my capacity as an online instructor. Hated it then, hate it now. Someday I'll even think of a good reason.

Something Diverting

Something Diverting

I received an interesting email from a law student Blogger and found the topic interesting enough that I though I’d share my response with whoever still drops by here.

Hi there, I run the blog at www.anonymouslawstudent.com. [interesting site] I'm trying to compile a post about relationships after law school. However, I don't know anything about that because I'm still in law school. So my plan is to email about 10-15 blawggers and ask them a few questions about their experiences and observations. If you'd take a second and help me out, I'd really appreciate it. Thanks!

Well, thanks for asking.

1. What areas of law, in your opinion (assuming some areas are worse than others), tend to be harshest on a marriage or long term relationship?

Bearing in mind that, First, I’m a prosecutor, in an office full of prosecutors, which sort of limits my day to day contacts with the more mundane areas of the law, and, Second, I work in a moderate sized community where there are no pressure-cooker law firms to be found (I mean, we’re the biggest “firm” in town), and, Third, I’m 20 years out of law school and have pretty much lost track of my classmates, most of whom were of an age where serious relationships
were just starting, my answer is that it’s not the area of practice as much as it is the type of practice that screws with relationships. That is, my marriage was screwed up from things that had nothing to do with my job. The same is true of the other two or three marriages among my of the bench and bar that hit rocky patches. It wasn’t the job, it was the people in the relationship. Six of my colleagues are married to lawyers or judges and none of the marriage
troubles related conversations we’ve had over the years has ever involved the practice of law. One of my classmates divorced his wife shortly after law school, years ago. That seems to have been based on long-term incompatibilities that only came to light (or became intolerable) when they both started working more or less normal hours (she was a nurse, he’d been a student almost the entire time they were married) and were thrown into each other’s company for
hours and hours every day.

2. What mistakes, if any, do you think new attorneys make that cause problems or contribute to the end of their marriages or relationships?

Again, based on a very small sample - my classmates who took associate job with the “big” law firms in the Big City seem to have had more problems connecting with someone for the long term then my unmarried colleagues in the office do. Hours worked is my guess. Which is, in the current legal employment environment, even more of a dilemma for the new associate than it was when I graduated. If you are not billing some incredible number of hours, you are not going to find it all that easy to advance in the firm If you are working the hours necessary to honestly bill those hours, your are not going to find it all that easy to maintain any kind of relationship, let alone a marriage. One of our former interns took a job with a silk stocking firm in the Big City and is working the insane hours the partnership track seems to require with out too much damage to her marriage. However, by prior arrangement, her husband took up the mantle of househusband when she passed the bar and began to work in earnest. It helps, I’m sure, that they had their first child while she was still in law school.

3. Do you have any advice on how to balance work and home life?

Sorry to say, based on my own experience, it’s the job that has to give over the long term. Yes, when you are starting out you can work those 70+ hour weeks and a marriage will survive - as long as there is light at the end of the tunnel. But when I was active in the State Bar ssociation, I constantly met partners at big firms who were still putting in 60 or more hours a week. The only difference was, many of those hours were on behalf of the Bar or other volunteer supported organizations. Maybe that says something about the sort of drive (Type A personality, anyone) you need to make partner in a traditional law firm more than anything about the practice of law. I guess it comes down to simply having a balance and not letting work become the be all and end all of your life.

4. What seems to be the common thread in the relationships that survived law school and that went on to survive the new career as an attorney? What seems to be the common thread in the ones that didn't make it?

Can’t say. Except for the guy mentioned above, everyone I know from law school who was married is still married. And the legal work environment where I live and practice is such that the successful and failed marriages alike seem to succeeded or failed for the classic reasons. I’m sure work played a part in some of the failures (one local attorney divorced her husband and married the accountant she rented office space from, but I don’t see how the nature of her
job had much to do with that) but only in the way work relationships torpedo marriages all the time.

5. Is getting married right out of law school a good or bad idea?

I have to say it’s going to depend on all the circumstances. Assuming for the sake of discussion that we are talking about a fairly typical law school grad - 24-25, been in school non-stop since he or she was five years old, starting a new job, maybe in a new town, a ton of school related debt, you know the drill -- I’d have to say why would you want to add just one more brick on the load? On the other hand, if your debt load is moderate, you are going into partnership
with your Dad, and you took five years to do law school while working full time as a bookkeeper for the old man, why not?

I can't think of any more, but if you have anything else to add, please do. I appreciate your time..Thanks again,

aLs

Anyone else have any thoughts or comments?

Still Here After All

Still Here After All These Days

Sorry, it’s been way too long between posts, but I’ve just been unable to muster the writerly wherewithal to post anything. Work is still work. The bad guys still do terrible things to people, and we do our level best to lock ‘em up for as close to forever as we can. See, if we did not do that, then the parole board would have no one to let out because they’ve “found Jesus! Praise the Lord!” I, of course, was not aware that He was missing. The more fool me, ‘eh?

The end of Senior year is here for number two son, out youngest. The Perfect Local High School Student. Four years of football, two as a varsity starter (offensive line, thanks for asking) 3.5+ GPA (4.0 scale) in AP and college prep courses, no discipline problems, the kid is practically the poster child for what the school administration wants a typical male student to be. It’s been a helluva strain, believe-you-me.

I mean, the other two were anything but models of the modern Senior High School Student and I think we’ve been waiting for the genetics and/or hormones to come roaring to the fore, leaving nothing but smoking ruins in their wake.  But we’re just about five weeks from the last day of classes for Seniors, and just six weeks from graduation, so, we’ve crossed everything that can be crossed and are holding on to our sanity as tight as we can.

Oh, The Things They’ll Do
There is a certain class of defense lawyer that simply thinks the rules are for fools. (I actually had one say that to me, once upon a time) and that if they get 50 miles away from the big city to the south that no one will know those rules and they will be able to bullshit their way to whatever they want. Sigh.

Of course, we have an arraignment court chief judge who is totally clueless about most of the substantive rules (like Miranda only applies to custodial interrogation) and virtually all of the procedural rules. One can make some excuses about substantive rules like Miranda because in most cases they are derived from case law, not statutes or codes and can change without warning. It’s a bit harder to excuse a failure to know about the court rules published by the state supreme court. I mean, they come out in a nice little book from West/Thompson, every year, and changes are prominently displayed in the monthly bar journal as well as on the state court web site.

We had an out of town attorney try to get the chief judge to issue a writ of habeas corpus for his client, who was pending arraignment, on an oral motion. And the dummy was going to grant it! Happily for the chief’s reputation in the building, the clerk of the court is also an attorney and was able to advise him that the writ could only issue on a properly filed complaint. And Mr. Out-of-Towner had not filed such a complaint. Oh, and in the same breath, while he was issuing an illegal writ, he was ordering our office to appear forthwith and arraign the defendant. Aside from the fact that we were still waiting on the police report/request to charge, there’s a tiny little separation of powers thing going on there. Ya think? And the final insult? Mr. Out-of-Towner may have outright lied to the judge about the circumstances of his client’s detention. We don’t know. Why? Because the judge ordered the court reporter to go to lunch (don’t want to incur any comp time) and shut down the Dictaphones. Another attorney was in the courtroom while this was going on and left to call my boss and give him the heads up. So, two of us spent an enjoyable hour drafting a complaint in mandamus against the arraignment court, just in case. We didn’t need it, thank God, because who needs to be in the middle of that kind of firefight between the courts.

Ah, yes. It’s a great life if you don’t weaken.
    

On A Cold Sunday Afternoon

Writers’ Block? Not Exactly.

I’ve come to the conclusion that, unlike Kevin Smith I really do have a boring-ass life. I am sitting here, at a loss for something to write about. Not that there are all that many of you looking in these days, but for the occasional lost soul who drifts by, I’d like to think there is something worthwhile, or at least mildly amusing/interesting/diverting on these pages. Preferably something related to the Law. But I just keep coming up dry.

Sex Crimes. That’ll Wake ‘Em Up!

Well, here’s one. For the lawyers and enthusiastic amateurs out there -- How does your state handle other acts evidence in sexual assault/child molestation cases? That is, how do you cope with “lustful disposition” evidence, as some states call it? I refer, of course, to evidence of similar acts.

Does your state have either a formal rule, like FRE 413 and FRE 414 that explicitly allows evidence of similar acts to prove the defendant’s propensity to commit such acts, or a court made exception, often referred to as the “lustful disposition” exception, to the general rule that evidence of a defendant’s character may not be introduced to prove he acted in conformity with that character? See FRE 404 for the usual codification of this rule.

Or do you fall back on the state equivalents of FRE 403 to generally bar such evidence as more unfairly prejudicial than probative?

This is a topic near and dear to the hearts of sex crimes prosecutors everywhere. Particularly those who specialize n crimes against children. When you’ve got a recidivist on trial for sexual assault on a child, evidence that he (it’s almost always he in these cases) has done the same thing before is a powerful tool in proving the case. That’s why the general rule is to bar such evidence. We worry that the jury may convict on less than proof beyond a reasonable doubt because the defendant is a very bad man and shouldn’t be walking around. This is the reason courts are leery of other acts evidence in the first place. Particularly when the other act is a similar crime.  They worry about the natural tendency of jurors, as reasonable human beings, to say to themselves “well, he did the same thing before, it’s likely he did it this time, too.”

Two Days In A Row!

Watchin’ The Tube On A Saturday

Yesterday was pretty laid back. Put the final touches on an appeal from arraignment court to the general trial court and then started on cleaning off several months accumulation of stuff from the ol’ desk. My desk is one of those ‘U” shaped numbers with the computer monitor in the middle of the base of the U. This gives me writing/stacking room on either side. This also means, that there is a fair amount of dead space to the extreme front right and left corners where low priority stuff tends to accumulate. Like training monographs, pocket part updates, bar journals, loose-leaf updates, etc. Part of the problem is I’m the clearinghouse for all the incoming library related stuff. Like half a dozen updates for the court rules pamphlets. Now the double sets (i.e. state and federal) are easy. I get one, my secretary gets one, and the library gets one. Three show up, I hand out three. The state only subscriptions are a bit harder. Anyway, I actually made some inroads into the various stacks.

Today, other than a load of laundry, has been devoted to watching old TV shows on DVD. Finished off the first season of Hill Street Blues and started in on the first season of X-Files. Now, I was a big fan of Hill Street when it first aired and managed to watch most of the episodes up to the point where I started law school. But that’s still over 20 years ago. Watching these episodes is just amazing -- you can see the beginnings of any number of conventions that have become so common in TV dramas that they are approaching the status of clichés. And then there’s the story and the acting. What a delight compared to so much of current TV fare.

After finishing Hill Street, I started on the X-Files, which I didn’t watch, other than one or two episodes here and there, when it first ran on Fox. Odd. Very much a series of slightly connected stand-alone episodes in this first year. And, surprisingly, not all that interesting. Other than finding out what weird damn outfit the consume designer is going to inflict on poor Gillian Anderson this time. My God, the woman is, like 5’3” and they insist on putting her in these pant suits with legs suitable to wear over waders and shoulders padded out to the point where she looks almost square. No wonder it took Mulder years to make a move on her.

I was watching a really bad episode involving NASA, the space shuttle, and the “face on mars” and efforts by some sort of ET to sabotage the shuttle program by either possessing COL Belt, the former astronaut who was in charge of the program and making him do nasty things (or maybe forget to do good things) or by becoming some kind of smoke wraith and actually flying up to orbit and physically damaging the orbiter. Query - if it can do that, what the hell does it need with Belt? I had to ask myself, how did this survive for almost 10 years on Fox when Firefly barely aired 10 episodes? (I only count the first pilot “Serenity” as one episode even though it aired as a two-parter.) Maybe the X-Files picks up a bit more substance in the later seasons. Maybe it picks up in the second half of season one. I guess I’ll find out.

What The Hell Was That?

TGIF!

Well, it’s been one of those weeks. I kid you not! Take a look at Sergeant Saunders down there -- that’s pretty much my week. Except the boss frowns on submachine guns in the office. Between the drug prosecutor, the intern, and me, from Tuesday to today we finished four briefs on appeal, and one application for cert to our state Supreme Court. Not to mention the usual run of little things - like helping a trial prosecutor figure out how to approach a fairly serious witness problem, and installing the updated model jury instructions on our server.

UPDATE!

Forgot to come back and actually post this. Sigh. That was written on January 21, coming up on three weeks ago.  Not much changed up to yesterday. Through yesterday, four more brief for me (two of them abuse and neglect appeals, so not so much work as a criminal appeal) one more for the drug prosecutor, and one for the intern. She gets to slack off a bit, having just passed the state bar and getting sworn in and all that. You may well wonder how the heck long it takes my state to grade bar results, assuming the usual summer and winter examination dates if she’s just being admitted. The usual time. Results showed up in November and she missed the cut by one point. So, rather than take it lying down, she wrote her own appeal to the bar examiners and contested nine of the points they marked off. She won five of them! So, a belated admission ceremony and congratulations all around. Now, if we can just find her a job.

I see law school applications are down for the second or third year in a row. Good thing, because the legal job market is pretty grim. This is the first time in my memory that our graduating interns don’t have jobs waiting for them upon graduation or bar admission. It doesn’t help that most of them want jobs in prosecution. While the economy, in a national sense, seems to be doing fine, government, as a rule, is not. I think I wrote about the county budget process a while back, in terms of how the county raids the departments at the end of the fiscal year. Expect to see some screedy rants on the subject of the whole budget process in the near future.

A BREAK IS IN SIGHT!

My in shelves are now empty save for one habeas petition the trial court wants us to answer. Which I’m going to foist off on the intern so she’ll be able to add that weird sub-set of appeals skills to her resume. Me? I may take a day off for something other than doctor’s appointments for a change. Spending today cleaning off my desk of the accumulated filing and library updates. And the usual junk from the trial attorneys.

At Times The Metaphor Is Just Too Real

Some days would just be so much better with a M1A1 and a couple of spare magazines. You know?

Still Typing. . .

Back To Work

Back to the grind, this last week. If you don’t do it (or haven’t done it), it’s hard to understand just how exhausting steady, heads down writing and research can be, physically as well as mentally. Needless to say, I’m happy I took advantage of the short, mid-Holiday week to decompress and catch up on things like putting stuff back in the library and the file room, but now I’m back in the middle of the wonderful world of appeals and it doesn’t look like the writing elves came in and finished up anything for me, so, once more into the breach. . . .

Epiphany

Not the Christian feast day (some times knows as the Twelfth Day of Christmas) which was yesterday, when I had this small ‘e’ epiphany, oddly enough. But rather “A sudden manifestation of the essence or meaning of something,” ss the American Heritage has it for definition 3a.

I’ve been watching the fourth season of The Shield, getting back up to speed for season five, which begins next Tuesday. Two things (maybe two and a half things) hit me:

1. Glenn Close is drop-dead gorgeous,
1.5. and a hell of an actor,
and
2. Michael Chiklis embodies to two archetypes of the American Police Officer. When the cops are dealing with us, we want the Commish to be the guy we’re talking to. When the cops are dealing with the bad guys, we want it to be Vic Mackey.
2.5 Chiklis is a hell of an actor, too.

2006

Best Wishes for 2006

TWO DAYS IN A ROW!

It Looks Like A White New Year’s

As opposed, that is, to the brown and sere Christmas we just had. Good color scheme, really, because that’s pretty much how it was this year. Let me hasten to add that nothing terrible happened, no one died, no serious accidents, no unexpected medical events, and no earth shaking emotional traumas in Mr. DA’s world this Yuletide. It was just kind of flat.

Warning -- Boring, non-legal, cathartic blather follows.

Don’t say I didn’t warn you. The following has nothing to do with criminal law, or law of any sort. It’s me, venting to you about a Christmas that was OK, by almost every objective measure you care to think about. Trust me, I am well aware that I have it damn’ good compared to probably 90% of the current human race, and God and I discuss that on a regular basis. The following is just me dealing with seasonal malaise.

Christmas Should Be Better Than OK

I received an email from my sister (who lives in another Baja Great White North State) with some Christmas snapshots of my fairly new great nephew and the following note:

Hope you had a good Christmas. Ours was okay but Christmas should be better than ok so next year we are doing things my way and whoever doesn't like it can go somewhere else. These people who insist on going to church drive me nuts. Either go to 4:00 p.m. mass, midnight mass or go Christmas morning, but don't go to 6:00 p.m. mass and expect to have a nice family celebration after because by that time it's too late. Mom is 80, cousin Emmy is 2 and your great nephew is 5 months, they all go to bed at 8:30 for crying out loud. Anyway major changes next year.

That’s her mother-in-law who’s 80. I don’t know why I bothered to add that, seeing as our mother would also be 80 if she were still alive. I suppose it’s because I just realized they were the same age. Anyway. . .

This note got me to thinking about my own vague, unfocused feeling of nothing special having happened this year. I’m pretty sure I can spot my sister’s complaint - she was pretty clear about what was bugging her.

She married into a family that resides on the other side of the Great Divide: They celebrate the festive, gift-giving, wassailing part of Christmas with the relatives on Christmas Eve. Well, she’s been married longer than I have, so mixed-marriages can work out. Her point being, why get together when half the participants are going to asleep or really needing to be asleep and the other half are going to be taking care of the first half?

Unbeknownst to me, until I gave it some thought, we had sort of the same thing, here.

My wife and I are in a separate living mode that complicates things a little bit, but not much seeing as we live about a mile down the main road from each other and the kids are all pretty much adults (quasi-young adults -- disgustingly young adults, if you ask me) and my step-children, to boot, so there are no real issues there. (By issues, I mean the nasty child support/visitation stuff which can really screw up Christmas -- mostly because we worked it all out ourselves, we’re both nice people, and because the kid’s “real” dad has been so uninvolved for so long, he doesn’t really enter the picture at all, either support or visitation-wise. Really uninvolved, like invisible. At one family gathering, a few years ago, my sister-in-law was on a soap box about some diet plan that was based on your ABO Rh blood type. When my wife pointed out that this could cause some real meal planning problems as she and I were O and the kids were B, her sister announced that she must be wrong because two type Os couldn’t have anything but type O offspring. When we all just stared at her, it still took her about 30 seconds to get it. ) But I digress yet again.

We celebrate all the holidays and birthdays and things at the family homestead where she and the boys (when they are around) live. Our daughter has decamped, temporarily, to an Eastern seaboard state while her significant other goes to school. It’s an all day drive for them to get back here, so the timing depends on work and school schedules and, at this time of the year, weather.

Because her SO’s family live about 120 miles north of here, as does “real” dad, the plan was to spend Christmas Eve with us, drive up to his folks that evening,  spend Christmas  with them, the 26th with “real” dad and his new family, and return here on the 27th to spend a day with us, recharging for the trip home.

Now, I have to note that this is a major change for our family. My wife and I both come from families that make Christmas morning the big, nuclear family event with Christmas afternoon and evening devoted to the extended family (over-the-river-and-through-the-woods stuff.) Christmas Eve is for last minute gift wrapping, flying visits to and from friends and neighbors, and Midnight Mass. Christmas day is for opening gifts and eating huge meals. And that is how we have celebrated right along, for 15 years. Until this year.

I was OK with the change in plans. My wife and I are grown ups, and the kids are pretty much on their way, so it’s not like they still expect to put out milk and cookies for Santa and we hide all the presents until they’ve gone to bed Christmas Eve. I can get my head around a Christmas Eve Christmas once in a while. But I kind of expect it to be during the real eve portion of the day. I’m not sure when our 2005 schedule changed, but it did.

I was out Christmas Eve morning. No, not shopping. I was doing in-custody warrants at the County Jail. (See previous post) and spent a couple of hours cooling my heels while the on-call secretary and the County IT boffins battled with the new network printer installation. We finally got the warrants done and I decided to hit the local breakfast buffet for a pre-Holiday gorge on pork products, eggs and hash browns. I was happily contemplating the addition of Polish sausage to said buffet when my cell phone went off. It was my wife with the change of plans.

Number two son’s girlfriend had shown up with the Sun and advised that she had to be home (a 30 minute or so drive) by noon for some family thing that she couldn’t avoid and would last all day so she couldn’t join us for dinner. Sigh. So we were going to do the gift exchange now rather than after dinner. Sigh. So I cut short my breakfast and went home and cleaned up (hanging around the Sheriff’s squad room, swilling bad coffee doesn’t really demand a lot in terms of shaving and stuff) and retrieved the kid’s gift envelopes (they are at the easy to shop for age - just find the crispest bills the bank has) and headed out.

I got there just about the time Daughter managed to pry potential future son-in-law out of bed. When they arrived the night before, the poor guy looked like a zombie. Between school and work and Daughter’s ideas of packing and panning, he’d been going about 20 hours on one two hour nap. He’d tried valiantly to stay awake and be sociable until my wife just about ordered number one son and his buddy to carry him upstairs and put him to bed. Eleven hours later, he still didn’t look fully human, but closer. Much closer.

So, after a pot of coffee, some sticky buns and like stuff, I fired up the camcorder, made sure there were new batteries in the still camera, and we did the gift thing. At 11:00 a.m. on December 24th. By 1:00 p.m. the kids were off doing last minute shopping for SO’s folks, girlfriend was back in the bosom of her family, Wife was watching the Food Network and I was back at my place, correcting online class papers so my students would have their grades on time.

Dinner was fine, glazed spiral cut ham and the usual sides. The boys were less gross than usual, inspired in large part by the excellent manners of Daughter’s SO, a guy they both like and who is just enough older to exert the maximum “good example” influence on them. When it was over, Daughter and SO engaged in the usual Christmas Eve gift wrapping and such. The rest of us wandered about aimlessly, watching TV and eating way too many Christmas cookies. I was home and in bed by 11:00 p.m.

Christmas day, nothing. Daughter, SO and number one son headed North to see SO’s folks and “real” dad. Number two son was scheduled to spend the day with girlfriend and her family (pretty serious stuff going on there) and I spent the day watching the Battlestar Galectica Season 2.0 DVDs, Country Western Christmas videos, and talking to my wife on the phone. I did manage to go out for a loaf of bread from one of the never-close convenience stores, but that was about it. Oh, and it rained. Not freezing, thank God, but rain on Christmas. Maybe there’s something to this global warming stuff, after all.

A brown and sere Christmas, indeed.

I did warn you.

It's, It's -- It's ALIVE!

Well, Here I Am, Again

Wow! It’s been a long damn’ time since I added anything to this effort. Way too long, I’m afraid. What was it John Lennon said, “Life is what happens when you have other plans.” No kidding.

Things have been a little, hummm, hectic around the office the last few months. As I may have noted in some past post or other, we rely on law student interns to eke out staff, both trial staff and me, the appeals department. We usually have a couple all the time, either academic (i.e. they pay their law school for the privilege of working for us and they get credit for the experience), or regular part-time employee interns (i.e. we pay them and they work their butts off). Well, welcome to the wonderful world of County budget games!

Like most government entities in my State, the County runs on a fiscal year that tracks the actual calendar year. Used to not, but a few decades back, the State said this fiscal year starting in July (or October) is silly and we’re not going to do it any more. So. . . from about June to November the County board puts their pointy little heads together with the County Controller and the County Administrator and start to hammer out the budget for the following year. This year, no big surprise to anyone who was paying attention, they discovered there was going to be about a 1.4 million shortfall for 2006. Even better, our Controller came from the private sector and is pretty much clueless about how government agencies work.

I know a fair number of the readers of this enterprise work for government or quasi-government entities, so you know what I’m talking about. You go into December with Department budgets that look pretty healthy, heck, you may even have some surpluses! Then everyone starts submitting accounts payable items immediately, on receipt of the invoice. Something that may 30 or more days the rest of the year gets submitted Right Now! Sometimes on the same day.

Why, you may ask, those of you who work in rational worlds. Well, because in my world, about a week into January, the County comes along and cleans out all the Department accounts (i.e. sets their balances to zero and transfers the amounts to the County General Fund) in preparation for setting up the next year’s (now the current year’s) accounts. That is to say, if there is still money in a Department’s budget at the end of the year, the Department will never see that money again. In government circles this is fondly known as the ‘use it or lose it’ rule. This has been true from my first unit assignment as an eager young 2LT in 1972, through my days with the Army Reserve, to my time with our intermediate appellate court, right down to last year with the County. There is nothing to be gained by giving back unused funds. Because in the next budget season, people are going to remember that you didn’t need all that money you asked for.

But I digress. We got into a budget bind for this year (2005) when the County decided we couldn’t use the funds tagged in the line item for ‘contract services” (e. g. a special APA to fill in for someone on family leave) to pay interns in the months of November and December. After all, our interns are, technically, contractors if you squint at the IRS code real head and hold your head just so. . .

Actually, this is kind of a big issue, masquerading as a little one. There is a fairly substantial argument (in this State, anyway) that a County Board (legislative branch) imposing a rigid line item budget on, for example, the Prosecuting Attorney (executive branch) is a clear violation of the separation of powers. In plain words, the Board can tell us how much money we get (and some specific items that are clearly spelled out in the statutes) but not how to spend it. Alas, the boss didn’t think this was the issue to draw the line in the sand over. He’s pretty sure one is going to come along, but this just wasn’t it.

So, we have one intern doing what two or three were doing through September. Add to this a change in staff that returned the termination of parental rights appeals to my desk for the foreseeable future, and I’ve been writing just about non-stop since I last posted.

I know I have mentioned that the kind of writing appellate attorneys do is exhausting work. Finicky procedural rules, everything is on deadline, in many cases the issues are boring but still need to be given the full treatment -- for the thousandth time! Yes, you can recycle your gems of advocacy for some of the recurring issues. But many appellate issues are issues of fact. That is, the law is pretty much settled. But how it is applied depends on the facts of the case. I can cut and paste the law on consent searches in about 30 seconds, but applying that law to the facts of the case in front of me, and reducing it all to a clear statement that fairly address the questions raised may take several hours.

So that’s what I’ve been doing. Along with all the other stuff I get to do as a APA, like on call warrant duty (due to a freak alignment of the regular on call schedule and the Holiday on call schedule, the APA who follows me in our more of less alphabetically duty roster and I have pretty much been the only people on call for the month of December. I had a regular week, she had a regular week, then I had Christmas week, now she has New Year’s week -- and the fun thing about on call duty is it just isn’t the weekend warrants, it’s all the in custody warrants for the week. When you are arrested, you have a right to be presented to a magistrate for, among other things, a bond determination, within 48 hours. This means some assistant prosecutor has to review a warrant request before a police officer and swear out the warrant and present it, and you, to the magistrate. Lots of fun.

The upshot of all this fun is that I just put the whole appeals thing (except for questions, court appearances, and phone calls from opposing counsel) on hold from the 23rd to the 3rd. Amazingly enough, my batteries have been recharged to the extent I actually installed the Blogger toolbar in Word (this is a big deal, ‘cause I really don’t like Word) and am using it to prepare this post. Now it’s time to see if I can publish from here.

More over the next few days.

Word Verification for Comments

Sigh.

Over the last couple of weeks I've started seeing comment spam so I've turned on the word verification for comments feature. I apologize to the overwhelming majority of posters (and you both know who you are) who post real comments.

To the cretins who use this very irritating from of spam. . .

You know where you can go.

The Working Poor

More Perspective On The Cost Of Things

This article, answering the question of why so many people didn't leave New Orleans when it became obvious that the potential for a catastrophic landfall by Katrina was extremely high, illustrates the points some of us have been making about the realities of the true cost of legal representation.

Living Paycheck To Paycheck Made Leaving Impossible

From the Washington Post, Sunday, September 4, 2005.

Then there's is this, from CNN's Drew Griffin, on the ground in New Orleans

Rescue Ticket

Scroll down to the headline. It's the second story on the page.    

This line is a test of Blogger for Word.