Do As I Say

On May 14, 1970, Mitch Daniels, now the governor of Indiana and a GOP presidential hopeful in 2012 and 2016, then a student at Princeton University, was arrested, along with two roommates, for having enough marijuana in his dorm room to fill two shoe boxes. The three were also arrested for having LSD and prescription drugs without a prescription.

Daniels’ punishment? A $350 fine for a plea to “maintaining a common nuisance.”

Would that I could get that kind of deal for a client in 2011!

Why is a drug case from forty years ago news, even one involving a politician?

Daniels is most recently in the news for profile in today’s Daily Princetonian that looks into those charges, and their lack of impact on Daniels’ political career. Daniels is also an advocate for the kind of strict drug laws that end college careers every day, often with far less than two shoe boxes of pot.

That’s what makes this news.

Unless he has changed his position on the issue since 1989, he is

in favor of laws that would absolutely destroy the career of anybody caught in 1989 (or today) doing what Daniels was caught doing. A couple of hundred thousand students have lost their financial aid, in many cases meaning they had to drop out of college, because of a conviction for possession or sale of drugs. If Daniels were in college today, and thus had actually served time as a convicted drug dealer, not only would he have no political future, he wouldn’t have much of a future at all.

I don’t mind a little mild hypocrisy, but I do like my politicians to own up to their faults. I’ll be curious to see if Daniels does so when he inevitably announces his candidacy for 2012 or 2016.

Probable Cause or Reasonable Suspicion?

If you can figure out what Commonwealth v. Feczko, 10 A.3d 1285 (Pa. Super. 2010), means in terms of criminal defense practice, feel free to share.

This opinion came out in December, and I had a chance to read it in detail today. As near as I can tell, it recognizes two types of Motor Vehicle Code (Title 75) violations: those that are “investigatable” (for which the purposes of a Terry stop exist – maintaining the status quo while investigating) and those in which there is nothing further to investigate.

“Mere reasonable suspicion will not justify a vehicle stop when the driver’s detention cannot serve an investigatory purpose relevant to the suspected violation.” Feczko, at PA SUPER p. 12 (no star numbers available).

So, for offenses that require no further investigation, such as speeding violations, probable cause is required. But for offenses that may require further investigation, such as DUI, only reasonable suspicion is necessary.

(What a ridiculous mess our DUI jurisprudence has become. I’m going to think about that tonight and may update again this weekend.)

Tasers Kill

The Braidwood Inquiry report is a pretty damning document for Taser International. The inquiry began after Polish Immigrant Robert Dzienkanski died on October 14, 2007, at the age of 40, after being Tasered five times by four RCMP officers in British Columbia. The report concluded, as a finding of fact, that “conducted-energy weapons do have the capacity to cause serious injury or death” and that the risk increases with multiple uses, specifically when aimed at the chest near the heart. Taser International appealed the inquiry. They were not successful.

Read the Braidwood Inquiry Reports here.

Eventually, we will be forced to conclude that Tasers are not the safe, non-deadly alternatives to guns that we were told they are. These weapons are not Phasers from Star Trek, set to stun. Nor are they remote controls that can force a subject to submit to the shooter’s authority. Even the most benign use of a Taser can kill. These are deadly weapons, and it is time we treat them as such.

Tasers were sold to the public as a non-deadly alternative to firearms. The idea being that, in a situation in which an officer would normally be forced to shoot someone with a gun, the Taser can instead be used to achieve the same result without the mess of a bullet wound and potential for death. Unfortunately, we now know (and by now we do know it, despite what Taser enthusiasts may claim) that Tasers kill. We must retrain our police to only use Tasers in situations where the use of deadly force is required.

We do not allow police to shoot someone with a gun without giving warnings, trying to deescalate the situation by using words and a calming voice, and exhausting all other options. When an officer pulls his weapon, he has to be ready to intentionally kill another human being. So too must he be prepared to kill when he pulls his Taser.

Setting a Minimum Standard

Judges, cops, even a high school principal, are nice, reasonably educated folks who are given power over others and entrusted to use it with a modicum of intelligence, thought and discretion. They aren’t expected to be perfect. Not even pretty swift. Just not fall below the level one would require of a brick.

(via Simple Justice.)

Federal Government Increases Restrictions on Travel by Citizens

That’s how I’m spinning the passport rate increases.

What is the value of an expungement?

A local attorney is pushing expungement in new directions. Along with what has become the standard language of an expungement order, he included provisions requiring the local newspaper and a student-run newspaper to remove articles that named his clients.

Unfortunately, it appears the judges who signed these orders thought they were just the standard expungements and didn’t read every word. The attorney did not inform the judges of the additional provisions. One of the judges has vacated his previously entered orders. The other will likely do so shortly.

The story hasn’t quite gone national, but it is certainly regional. Here is the original Centre Daily Times article on the brouhaha. And the Philadelphia Inquirer picking it up. I also understand it is out on the AP wire from both sources, so I’d expect to hear about it on The Colbert Report within the week.

Whatever your views on whether the attorney was right or wrong in what he asked for or how he handled getting the orders signed, you have to recognize his point: in the age of Google, what is the value of an expungement if anyone can search your name and find the information that was meant to be deleted from the public record?

It is a thorny issue. Tied up in it are the competing interests of privacy, the right of the public to information (which the press keep confusing with their own First Amendment privileges), and the interest of the courts in supporting agreements between prosecutors and defendants that resolve cases without time-consuming court involvement.

When two fundamental rights such as these meet, which one should prevail? Does the individual’s right trump that of the community? I don’t think there is an easy answer. I certainly don’t have one. As a criminal defense attorney, I want the best outcome for my clients. As a civil libertarian and a private citizen, I cringe at any interference by the state in the operation of the press.

At the end of the day, I think that local attorney is correct: this is an issue our legislature needs to address. They are the people’s representatives, and the public should determine how it wants to be treated.

Mindfulness Meditation for Lawyers

Leonard Riskin, a professor at the University of Florida Levin College of Law, teaches mindfulness meditation to law students, lawyers, and others who face stressful situations. He says that mindfulness meditation helps one to be a better lawyer. Meditation Geek has posted several videos of him at that link.

I’ve found meditation to be invaluable in my practice as an attorney. I use it both as a coping mechanism for stress and in focusing my mind to work in that particular lawyerly way. As the caseload in my legal practice has steadily increased, I’ve also increased my meditation practice.

An Innocent Man

Under no interpretation of the law should anyone deemed to be “actually innocent” continue to be imprisoned. Seems like common sense to me. But not in the 9th Circuit.

Robert Lee was convicted in 1995 for a crime he did not commit. His innocence is not in dispute. The only question before the court was whether there is an exception for “actual innocence” under federal Habeas Corpus. Judge O’Scannlain:

… there is no “actual innocence” exception to the one-year statute of limitation for filing an original petition for habeas corpus relief.

A Federal Judge wrote that. In America. In 2010. Just think about that for a minute.

How weak have our courts become, that they allow a legislature to gut the Great Writ? And when the opportunity arises to use the judiciary’s inherent power to right that which is wrong, they prove themselves gutless, or at least not up to the task.

(via Crime & Federalism.)

When in the Course of human events

For as long as I can remember, I’ve read the Declaration of Independence on July 4th. It is the closest thing to a religious text a secular humanist like myself ever embraces.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

So begins the body. It seems a fitting place to begin a legal blog — on July 4th, no less — that will deal with how and whether the government that came out of that revolution lives up to its promises as reflected in the lives of its least fortunate citizens.

Today we also remember Robert Morris, Benjamin Rush, Benjamin Franklin, John Morton, George Clymer, James Smith, George Taylor, James Wilson, and George Ross. These men, my fellow Pennsylvanians, set their names to the Declaration, pledging their Lives, Fortune, and sacred Honor to what would become a republic – if we can keep it.

Finally, and perhaps most importantly on this day when we will be inundated with calls for blind patriotism and jingoistic pride draped in exhortations to “support the troops,” we must remember that the Declaration of Independence was a challenge to tyranny. In place of a king, we installed the people themselves as sovereign, and formed a government of, for, and by the people. The Declaration sets up the failure mode for that government: revolution. While the Constitution that was later adopted provides for its own modification through amendments, the fundamental principle “that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government” remains unchallenged.

We Americans really are a fascinating people, aren’t we?