On search and seizure, sometimes

Did you know the Constitution gave you, once, freedom from unreasonable
search and seizures, the government was required to get a warrant signed by judge, based on probable cause, before it could execute a search.
Then if the government actor wanted to talk to you, by the same Fourth Amendment privilege, he had to tell you, in so many words, you have the right to remain silent? Today: Because of Berguis v. Thompson, the right to be silent must be said out loud? And, in today’s world of tattered Fourth Amendment, it’s also apparently relevant to ask are we talking custodial silence? Pre-Custodial? Interrogation? Post-arrest?

Exceptions to the warrant requirement abound.

Exigent (emergency) circumstances,

Consent,

Landlord authority (but only for common space areas),

Motor vehicle exceptions to the warrant requirement are legion,

including the sort where the government can pull you over, take you downtown, impound your car, keep and do an “inventory search” to make sure, (the real reason, right?) that they don’t lose your stuff

There are border exceptions,

Open field exceptions,

Abandoned property exceptions.

You can’t expect the garbage goes to the dump.

I bore witness to a hearing about a warrantless search conducted in a home, that didn’t follow any any of those exceptions. But the search was valid anyway. The DA argued the cops thought the apartment was vacant, because the garbage hadn’t been taken out
In two weeks. And no one had seen her. Thus, police acted in good faith, and got the landlord to unlock the ‘vacant’ apartment and heigh-ho, everything goes, they got what they were after.

The Fourth Amendment is basically your tired, hungry, poor Amendment.

Next time you say about the Second, “But this right is found within the Constitution! Be sure the Fourth Amendment is grumbling to herself that she is too.

NeverWar

You get to the picture of the baby, hurting.  He’s inconsolable, he’s existing straight through the worst of it the way kiddos do.

But you aren’t one, so you start to walk into the horror: A baby, skin burning from the inside out–napalm

you run away from the horror, retreating to safety and soft pretty syllables (Love Is.  Peace:  the only answer. NeverWar.

And then you hear his cry in your head so you trembling walk to the image of a baby, skin burning from the inside out—napalm– his arms shivering wildly, while

And again it is too goddamned difficult, you can’t breathe right, you run away with anger and you post about the only thing to do is go to war! And your indignation and

righteousness replace, thank God, the piercing image of a baby, skin burning from the inside out—napalm– his arms shivering wildly, while someone rubs a

 white counter-acting chemical on his arms and legs and chest. This is how you traumatically learn many, many times

the vision you could not bear to live to know, that one first time. You don’t have the gift of presence like a child, who does not have your gift,

to retreat, find safety, deny, trust universe, speak peace, know love, learn again, become indignant, become righteous,

(write poems) escape (O anguish, Never?) the moment of burning and the long slow heal– or the death

as that may be, of the baby.

 

Trump and the Death of Democracy

I have focused on the sexism, racism, homophobia, and xenophobia that is deeply and expressly embedded in Trump’s rhetoric, and the bias he tuned into, in many supporters, to become elected. This morning I have read the wise words of Michael Lerner, a rabbi, who I’ll paraphrase this way: The Trump supporters really are disgusted, fed up, angry. . . they keyed into THAT part of Trump’s message, rather than where he pointed the finger. They are fueled by the pain of believing we live in a meritocracy. (see <a href="http://“>THIS ARTICLE in the NY Times)

Trump supporters who belive in meritocracy mythology believe if one works hard and is smart, one is rewarded accordingly, if only the government would stop getting in the way of that ideal. So, they play by the (extensive) rules– they always did–and they have seen, in response, their income is less, their debt is high, and politicians have sold them out. They are losing bigly in this country. Trump may be sexist, racist, homophobic, and xenophobic, but at least he seemed to understand WHY that message of hate was halfway palatable to some of them. What fueled the howling anger at the liberal elitist DC politics as usual was not hatred of the Other. It was a dream of a fair shot denied, and if the “Other” (the vulnerable and weak) were taking the brunt of the blame, that was unfair. But at least someone was pissed alongside them.

My solidarity with my shaken friends prompts my own fury in the days after the election. But I understand already that my tormented rage does not do me, personally, any favors. I have alienated my friends, family, and co-workers. I am risking my reputation for respectful debate. Yet I am being as moral as I can.

To that end, and by means I can live with, today I begin a journey of understanding democracy better.

#Democracy
The rhetoric Trump used that runs counter to democratic values.

On the First Amendment right to free press: Twitter statement to The Wall Street Journal: ‘They better be careful or I will unleash big time on them’

On the First Amendment right to freedom of religion:
Trump told Fox News that the U.S. government should close mosques where “some bad things are happening.” He said, “Nobody wants to say this and nobody wants to shut down religious institutions or anything, but you know, you understand it. A lot of people understand it. We’re going to have no choice. Some really bad things are happening.”

On the Fourth Amendment right to freedom from unreasonable search and seizure and the Fourteenth Amendment due process guarantee (against, for example, racial profiling by police)
“Our local police — they know who a lot of these people are. They are afraid to do anything about it because they don’t want to be accused of profiling,” Trump said on Fox News on Monday. Trump pointed to how Israel used profiling and “done an unbelievable job.”

On the Free Exercise and Establishment Clauses of the First Amendment, and the Fourteenth Amendment’s Equal Protection Clause, which forbids states from treating individuals differently based on unalterable characteristics, such as race, nationality, and gender. The Supreme Court has imposed the same obligation on the federal government through the Fifth Amendment:
Trump promises ‘A total and complete shutdown of Muslims entering the United States’ .

On the Eighth Amendment prohibition against cruel and unusual punishment and The Geneva Convention global illegality of torture:
“We’re fighting a very politically correct war,” he said “and the other thing is with the terrorists: You have to take out their families.”).

‘I’d bring back a hell of a lot worse than waterboarding’

On free elections (accepting election result) “I would like to promise and pledge to all of my voters and supporters and to all of the people of the United States that I will totally accept the results of this great and historic presidential election,” Trump said, adding, “If I win.”

Trump’s rhetoric runs counter to democracy because it showcases a total disregard for the Constitution…not merely those parts of it rendered possible through a “living document” judicial activism ideology, but even those parts of the Bill of Rights that Originalists also claim as literal to the document. The democratic ideals enshrined there are at stake in the next four years. Trump’s ascendancy was like finding out your country has a terrible illness. It is a time to learn, to study the underpinnings of democracy, and to use everything learned in the fight against the death of democracy.

1. FN1

2. FN2
3.FN3

4. FN4

5.FN5

6. FN6
7. FN7

8. FN8

No one cares how gross Trumpillary is

One will be President

One will choose all the wrong Supreme Court justices

One will go to war

One will build a wall

One will imprison the poor

Both will embolden the rich

Both will pave the Earth

in blacktop–waves of heat slither up– meanwhile tap

the veins of oil like junkies

left to squeeze the last of good veins

from your neck– tie off with a belt–

no more tidy junkie lines along the calf muscle

of the Planet in a neat row– hidden

under Her nurse’s scrubs

Both will hurt you good–and you will listen rather

to the shrill Rilly Big Shew–

baby sister, you will buy the subscription– ReadThisBlog!–

and it doesn’t matter more than a cd skip

You?–peaceful, minding your business, you care intensely

shatteringly close to the soul

for your neighbor– and it doesn’t make you

free– Why would you or I be spared?

 

 

 

 

 

Take a step back: challenging the assumptions underlying the debate on dissolution of Medina, N.Y.

This essay begins the day it occurs to me that the Village of Medina, N.Y. may actually be dissolved in service to lower taxes, union-busting, and the bottom line.  See Article, “Dissolution committee sees $1 million in local tax savings, Projected impacts for towns, village not released yet” on http://www.orleanshub.com/ for a synopsis.

What’s in a name?  Who needs a police department? An ambulance service?  A fire department? Why, the name’s no thing, and those services could be outsourced . . . at some point . . . .

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The assumptions underlying the discussion have gone unquestioned.  Lowering taxes, saving money, the bottom line, have become catechisms and ritualistic murmurs rather than points to be discussed, and questioned for their value in terms that include more than dollars and cents.[1] 

Why?  Numbers are powerful.  Scientists can limit the weight of the evidence by using words like “causal” rather than “correlative” and by adding “plus or minus three percentage points”.  Meanwhile, the research becomes “truth” to most of the world, because it is crummy to understand that there are very few known facts about economics or people, and a great deal of guessing is going on.

In order to progress from one fact to the next, we stand on top of assumptions together.  We stop asking one another to define the terms we are using.  We stop questioning the route we are taking, in our impatience to get a move on, to the next step.

I keep coming across the same basic assumptions whenever a policy argument comes up about how best to spend money as a community, and take care of one another.  Policymakers do not talk about these assumptions.  They just accept them as truth, and advance their ideas on the second floor of these assumptions. 

What are the assumptions in this small-town economic debate?

1)    “Bottom line” economics is always the goal

2)    Corporations are intrinsically good for the community

  1. The shareholder value rule is sound
  2. The business judgment rule is sound
  3. Limitations on liability are a good idea
  4. The “race to the bottom” is good for the community since it encourages businesses to locate in New York State
  5. Corporate election tinkering is a proper exercise of the First Amendment

3)    Unions are bad for the community

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Let me clear my throat:

These assumptions are not gospel truth.  They are opinions.  Each is discussed below.

1)       The bottom line

The bottom line “refers to a company’s net earnings, net income or earnings per share (EPS). Bottom line also refers to any actions that may increase/decrease net earnings or a company’s overall profit. A company that is growing its net earnings or reducing its costs is said to be “improving its bottom line”.[2]

Overvaluing the bottom line is like thinking in PowerPoint.  If you focus too heavily on the bottom line, say goodbye to subtlety, nuance, and complexity.

The net earnings of a company do not take into account values such as the community well-being, employee satisfaction and sustainability, or environmental effects of efficiency.

Company net earnings also rely on a competitive model of capitalism which can run counter to democratic well-being. 

For example, a company which profits from the labor of prison inmates can and must spend monies advertising for hardline conservative politicians who encourage lengthy prison sentences for convicted persons.  Helping ensure the politician who keeps the free labor pool available will increase the net earnings —the bottom line—of the company.  The company is obligated to increase earnings for the benefit of shareholders.  Whether families are torn apart because nonviolent offenders end up spending years in prison is just as valuable to the corporation as butterfly patterns in South America.  It’s not valuable.  It means nothing.

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2)      Corporations are NOT “intrinsically” good for the community 

a.      The Shareholder Value Rule

In 1940, Henry Ford fought in court over the issue of whether his company’s decisions should be made in service to shareholder profit alone in Dodge v. Ford Motor Company.  His argument was that his employees and the impact of his business on the community should be just as important as immediate shareholder profit.  He lost.  The Court held that a business corporation is organized primarily for the profit of the stockholders, as opposed to the community or its employees.  So, what’s good for the company is good for the shareholders, not necessarily the community the corporation exists in.  This is not to say a corporation cannot benefit the community, just that its goal is completely aloof from such an outcome. 

Corporations are in it for the money, and if employees are paid less, so be it. 

If re-organization occurs and people are fired, fine.  If husks of buildings and environmental waste are left behind, that’s too bad.  The shareholders must profit, and the CEO who knows how to slice and dice a company to increase profits has done his job correctly.  If police departments are left without pensions and required to work overtime to make a living, and show up on your doorstep exhausted and tardy, what does the shareholder care? The officer’s performance is not a measurement of the corporate performance, which can be found on a quarterly statement.

Similar to the shareholder value rule which evolved from that case is the business judgment rule.

b.      The Business Judgment Rule

The Business Judgment Rule protects corporations from being sued by providing a high threshold to plaintiff shareholders who wish to show wrongdoing by a corporation.

“The business judgment rule reviews the process of the decision and usually not the decision’s substance, even if it is a wrong or poor decision. Therefore, the business judgment rule limits judicial inquiry into business decisions. In addition, it protects directors who are not negligent in the decision making process.”  Retrieved March 15, 2014 from  http://lawcorporations.wikia.com/wiki/Business_Judgment_Rule.

The Business Judgment Rule is also the standard in New York State.  The idea is that even wrong or incorrect actions by a board of directors of a corporation will be treated gently by the Courts, who do not want to interfere with the process of decision-making by a corporation.  The procedure to sue is onerous, and even if there is a substantive problem with the decision, it will usually be ignored altogether, unless it is fraudulent, negligent, or similarly egregious.

The business judgment rule is the belly laugh of the powerful:  you think there is a problem in the boardroom? Good luck doing anything about it.

The implementation of the Business Judgment Rule in New York is part of what some have termed the “race to the bottom.”

c.       The Race to the Bottom

What is the race to the bottom?

“The concept of a regulatory “race to the bottom” emerged in the United States during the late 19th and early 20th century, when there was charter competition among states to attract corporations to domicile in their jurisdiction. Some described the concept as the “race to efficiency”, and others, such as Justice Louis Brandeis, as the “race to the bottom”.[1]Retrieved March 15, 2014 from http://en.wikipedia.org/wiki/Race_to_the_bottom#cite_note-coined-1

The race to the bottom includes employing the Business Judgment Rule in courtrooms across those states which intend to flirt with industry, encouraging corporations to set up shop within state borders and in return, the State will ensure that regulation is light, taxes low, and adverse litigation minimal.

The corporate form is designed to limit corporate liability, with the government and justice system’s blessing.

When the corporation was a mere entity, the result was only bad for taxpayers, the environment, and small businesses the corporation was indebted to, which it did not have to pay back out of personal assets.

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d.      Corporate Election Tinkers

Since Citizen United v. Federal Elections Committee   558 U.S. 310 (2010), corporations are not mere business entities, but are akin to election tinkerers in their political advertising spending rights.  In fact, the decision never mentions corporate personhood or the Fourteenth Amendment, but it gave ordinary Americans a glimpse into how far removed from common sense jurisprudence has become.

“The Court’s ruling effectively freed corporations and unions to spend money both on “electioneering communications” and to directly advocate for the election or defeat of candidates (although not to contribute directly to candidates or political parties).”  Retrieved on March 15, 2014 from http://en.wikipedia.org/wiki/Citizens_United_v._Federal_Election_Commission.

This is a grave misuse of the First Amendment.  Advertising speech conveys to the listener a powerful point of view, particularly a well-funded advertising campaign designed to use emotional rhetoric to obtain a particular result.  A million people giving a dollar each will not convey its message to the rest of the country as powerfully as the billion dollar company donating advertising dollars will push its own contrary message to Americans.  Nor can the corporation be said to represent the political opinions of all its employees who work there.  But, it speaks for them now.

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3)      Unions

Police, fire, ambulance, and teachers union-members are the only evidence I’ve ever seen of a middle class in this community. They work hard, they give back, they pay taxes, and they make the community better.  But ask a rural farmer what he thinks of unions and he’ll probably bark, “I pay too much in taxes.”  Personally, I doubt it.  For your taxes, you have a local library, a hospital, a fire department, an ambulance service, good schools, and a police department, not to mention parades, streetlights, snowplows, garbage collection, pothole repair, animal control, parks, and local festivals, fundraisers, and events.  People grumble about union wages, healthcare and pensions.  At the same time, they expect that their kids will be taught, fires put out, crime solved, and safety ensured.  They want something for nothing.  We do not live in easy times, but turning on unions is turning on our neighbors, and telling them they do not deserve as much as they have been getting.   These are the very people knocking themselves out to serve the greater good for decades.  Unions make it possible for them to live, thrive, and succeed in a helping profession which they may not be able to afford to be a part of, except that their union has made it possible. As the discussion continues about dissolution of the village of Medina, NY, look at the assumptions as merely that: assumptions . . .   Not gospel truth, not catechism, not sweet remembered prayers. 

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[1] What I’ve learned about these catechisms comes from my Bachelor of Science degree at R.I.T., where I was required to take Statistics and Research Methods I and II, all highly dependent on an understanding and acceptance of statistical analysis.  It comes from the case law I was required to read and apply at Albany Law School, especially in the class “Business Organizations”.

It’s Not Fair

It’s Not Fair

 

 

There’s a parable about a lost sheep.  The boy is gone from home for a long time.  His father rejoices when he returns.  The parable is not about the wayward son, lost for years, welcomed home.  The parable is about the wayward son’s brother.  He is the indignant one: he worked so hard, all his life, to be a good son, and now his brother is rewarded for his years of waste and sloth and greed, simply because he comes home.  It is this good son who is the center of a lesson.  It is about being on a righteous path for a very long time, an unblemished past—no mistakes, except, in the midst of a joyful occasion, a bitter heart, and a sharp tongue. 

 

He makes sense to my kids.  They are vigilant for unfairness.  This is how God asks us to come to him: like children.  Not like perfectly behaved teacher’s pets, saying only the right thing.  But as we are.

 

My God has a way of saying “No.  I don’t want to hear your fixed speech.  I want to talk to your heart.”

 

For me, the good son has a point.  What did he do all that for? It is more vital a question than “When someone is gone for a long time, is utterly lost to his Mama and his Daddy, and then returns, what else is a proper response besides joy?”

 

What do we do it all for?

 

Why be good, when we can be forgiven on our deathbeds?  All sin is washed away, not because we deserve it, but because grace is just like that: powerful and unmerited, even in the moment before death.

 

For me, the good son was nursing resentment in his heart, a bitter and idealistic thought my children carry, one I do too.  It is the innate sense that life is fair.  Perhaps it is not “in the bones” but it as ancient an impulse as this parable, at least.

 

Where does it come from, and why do we carry it? It pains me when I learn that I have been mis-appreciated, or that some are born with prettier bodies or more money, or into a group of people accorded more deference than others—because they have been taught not to wear five-inch turquoise heels or a t-shirt or a white shirt over a black bra to the courthouse or the dentist, or because they wear belts and their pant legs brush the middle of their heels, or because they have no tattoos or strange piercings, or because they are white, or because they drive expensive tasteful vehicles.   They are privileged in a quickly ascertainable way.  Mental short hand says: treat him well.

 

 It isn’t fair.

 

The good son in the parable was privileged, too.  Yet he had a sense of fairness at least as deep as mine.  My brother should not be treated as my better.  It isn’t fair, he more or less said.

 

Why are we good?

 

Are we good so that we can increase the good in our lives? SO that we can make more money, or at least be treated as the ethical stalwarts we have proven ourselves to be?

 

The teacher’s pet knows the correct answer, of course, is not that we are good to get.  We do not give in order to receive.  The Golden Rule: Do Unto Others As You Would Have Them Do Unto You, is not even the perfect student’s answer.  That too, is to be good in order to get.  The A+ answer is that goodness is its own reward.  It brings not only a sense of peace and equanimity, but is good outwardly, to others.  It is not just to live more in balance in the painful place that is the world that we are good.  It is to help the world be less painful.

 

But the good son knows better.  He has been disciplined in a way.  For a long time, he has been trustworthy, humble, generous, industrious, and obedient. 

 

Until he is tested.  The greatest test may be the one when he realizes that his path is longer, more difficult, more tiring, than his brother’s path ever will be.  Then he is given the opportunity to show his lucky brother that he is trustworthy, humble, generous, industrious, and obedient.

 

He can’t do it.  And the trouble is, his earthly father will not see him, in the midst of his failing, as a lost sheep.  He will not fall, with his heart of darkness, into a wilderness, lost from his family for years, and enjoy a homecoming later. He must turn to his Creator, for that is the only Father who will mourn how much in the wilderness his heart exists in, between the dark brambles of envy and poisonous ideology.

 

 How truly we need God. Is that why He teaches us to wish that life were fair?

Wedding Cakes Are White: An Analysis of the George Zimmerman Verdict

The triumph of rhetoric over reason…..

  • The essence of a good story is a villain.  The villain is not the client.
  • Challenge the jurors to leave the burden of proof at the State’s door.

This is an excerpt of Mark O’Mara’s rhetoric, part of a very STRONG CLOSING.

“There was some anger and hostility and ill will and spite maybe that night; it just had nothing to do with George Zimmerman,” said defense attorney Mark O’Mara as he wrapped up a more than three-hour defense of his client. “Well that’s not true. It had something to do with George Zimmerman. He was the victim of it.”. . . [1]

MARK O’MARA: You can’t fill in the gaps. You can’t connect the dots for the state attorney’s office in this case. You’re not allowed to. This is their burden. They have to take away reasonable doubt.

They have to look at this case and say to you, ladies and gentlemen of this jury, hi, we’re the state. We have proved this case beyond and to the exclusion of every reasonable doubt, because we have connected every dot that fall into line that leads to nothing but conviction.

And they just didn’t.[2]

The prosecutor seemed to know the case, but the rhetoric employed was not as strong. 

The prosecutor in this case did not prove George Zimmerman Guilty beyond a reasonable doubt.  The State of Florida failed to meet their burden.  We know this, because that is the conclusion the jury came to, and this is the system that we use to meet out justice in this country.  We use this system to ensure that the innocent do not go to prison, even though it will certainly mean that some people, not innocent, may go free.  In our country, we would rather that we err on the side of justice to innocent people, than err on the side of retribution, in an effort to imprison every guilty man.[3]

JOHN GUY, Florida District attorney closed with the following (in my opinion, fluffy) directions: “It is enough, with your common sense. It is enough. And I’m not asking you to fill gaps. I’m asking you to do what you do every day. Start from the beginning, get to the end, and apply your common sense.” [4]

The problem with the justice system is not that rhetoric is employed to solve the issue of whether a man charged with a crime is Guilty beyond a reasonable doubt.

The problem is that this system of justice is not every man’s system of justice.  This is true for two reasons:

  1. The Wedding Cake Model
  2. Racism in American Prison Outcomes

 

“The wedding cake model” is a theory posited by Samuel Walker about the way the criminal justice system works in America.  According to Walker’s theory,

“The first layer of Walker’s model is made up of the celebrated cases involving the wealthy and famous, such as O. J. Simpson and Michael Jackson, or the not-so-powerful who victimize a famous person—for example, John Hinckley, Jr., who shot President Ronald Reagan. Other cases fall into the first layer because they are widely reported in the media and become the subject of a TV investigation. . . .Cases in the first layer of the criminal justice wedding cake usually receive the full array of criminal justice procedures, including competent defense attorneys, expert witnesses, jury trials, and elaborate appeals. Because of the media focus on Level I cases and the Hollywood treatment of them, the public is given the impression that most criminals are sober, intelligent people and most victims are members of the upper classes, a patently false impression.” [5]

This is the Level of the Wedding Cake that George Zimmerman ended up on, because civil rights activists insisted on putting him there.  Public outcry included a demand for a thorough investigation and, potentially, charges against Zimmerman from leaders such as President Obama, the NAACP, U.S. Rep. Corrine Brown, and Al Sharpton.[6] As the Associated Press and NBC reported, “[Zimmerman] was not charged for 44 tumultuous days in which the case generated large protests in several cities, turned a hooded sweatshirt like the one Martin wore into a symbol of solidarity, and drew the attention of President Obama, who said, “If I had a son, he’d look like Trayvon.”[7]

The next level of Walker’s Wedding Cake Model is as follows:

Level II The second layer contains serious felonies—rapes, robberies, and burglaries. Police, prosecutors, and judges all agree that these are serious cases, worthy of the full attention of the justice system. The seriousness of the offense places them in the Level II category:

They are committed by experienced, repeat offenders.

The amount of money stolen in a burglary or larceny is significant.

Violent acts are committed by a stranger who uses a weapon.

Robberies involve large amounts of money taken by a weapon-wielding criminal.

 

Offenders in such Level II cases receive a full jury trial and, if convicted, can look forward to a prison sentence.

 

 

This is the Level of the Wedding Cake model which should have included George Zimmerman.  In some ways, it did.  He committed a violent act with a weapon on a stranger.  He received a full jury trial.  He was, as is sometimes the case in Level Two cases, not found guilty.

 

But the discretion employed by police officers at the outset (no criminal charges for 44 days) and the verdict both point to Level One:  This case was special.  Not because he was famous, or wealthy, and not only because he was the Man The Media Loved to Loath.  Why?

 

The rest of the Wedding Cake Model is familiar to anyone involved with the CJ System:

 

Level III Though they can also be felonies, crimes that fall in the third layer of the wedding cake are either less serious offenses, committed by young or firsttime offenders, or involve people who knew each other or were otherwise related.  Level III crimes may be dealt with by an outright dismissal, a plea bargain, reduction in charges, or most typically, a probationary sentence.

 

Level IV The fourth layer of the cake is made up of the millions of misdemeanors— disorderly conduct, shoplifting, public drunkenness, and minor assault— that are handled by the lower criminal courts in assembly-line fashion.  Few defendants insist on exercising their constitutional rights, because the delay would cost them valuable time and money, and punishment is typically

a fine or probation.[8]

So, civil rights leaders, Black people in America, liberals like myself, are angry about the verdict.  WHY?

If civil rights activists and politicians insisted on putting George Zimmerman on the very top layer of the Wedding Cake, and if the Defense Attorney’s rhetoric was stronger than the prosecutor’s, and if the prosecutor failed to meet his burden of proving Guilt beyond a reasonable doubt, if we as Americans insist that a man be proven guilty beyond a reasonable doubt, then George Zimmerman IS RIGHTFULLY A FREE MAN.  What in the world is left to complain about?

 Well, to put it simply: wedding cakes are white.

In 2001, the Lifetime Likelihood of Incarceration for Black males was 1 in 3. 

In 2001, the Lifetime Likelihood of Incarceration for Hispanics males was 1 in 6.

In 2001, the Lifetime Likelihood of Incarceration for white males was 1 in 17.

In 2001, the Lifetime Likelihood of Incarceration for Black females was 1 in 18. 

In 2001, the Lifetime Likelihood of Incarceration for Hispanic females was 1 in 45.

In 2001, the Lifetime Likelihood of Incarceration for white females was 1 in 111.[9]

As Jeremy Travis continues in his book, But They All Come Back, Facing the Challenges of Prisoner Reentry, “In 2002, slightly more than 10 percent of African-American men between the ages of 25 and 29 years old were in prison, compared with 2.4 percent of Hispanic men, and 1.2 percent of white men.

Do you see it? Do you see how not everyone is treated as well as George Zimmerman was by the criminal justice system? 

It is a context where Black men go to prison and white and Hispanic men do not, that George Zimmerman’s Not Guilty verdict wounds America.

As a defense attorney, I am glad that George Zimmerman got such wide latitude of discretion at the outset, and that the defense attorney was able to play Jenga with the prosecutor’s case, knocking down the structure of a conviction one piece at a time.  I am extremely glad that we use a system of justice which demands a standard of reasonable doubt to convict.  It speaks to a deep sense of fairness that I have.

I just wish every defendant got to be treated to the same system of justice George Zimmerman encountered: even those who happen to be Black.

 

 

 

 

 

 

 


[3] See, e.g., William Blackstone, in Commentaries on the Laws of England (1769).  Blackstone wrote that “the law holds that it is better that ten guilty persons escape, than that one innocent suffer.” (1) This formulation is not the only version of the doctrine. For example, in his book on Evidence (1824), another British scholar, Thomas Starkie, insisted “that it is better that ninety-nine … offenders shall escape than that one innocent man be condemned.”  Source:http://www.thefreelibrary.com/Is+it+better+that+ten+guilty+persons+go+free+than+that+one+innocent…-a0135337535. Retrieved July 14, 2013.

[5] Source:  Essentials of Criminal Justice, edited by Larry J. Siegel and Joseph J. Senna ch. 1THE NATURE OF CRIME, LAW, AND CRIMINAL JUSTICE, Retrieved July 14, 2013 at http://www.cengagebrain.com.mx/content/siegel06025_0495006025_02.01_chapter01.pdf. Retrieved July 14, 2013.

[8] Source:  Essentials of Criminal Justice, edited by Larry J. Siegel and Joseph J. Senna ch. 1THE NATURE OF CRIME, LAW, AND CRIMINAL JUSTICE, Retrieved July 14, 2013 at http://www.cengagebrain.com.mx/content/siegel06025_0495006025_02.01_chapter01.pdf.  

[9] Figure 2.2 Bonczar and Beck (2001) in But They All Come Back, Facing the Challenges of Prisoner Reentry, by Jeremy Travis, p. 24

Chocolate, The Fourth Amendment, and a Friend who goes by Lore

No-mess Hershey’s are what it’s about, no matter what else you hear.
Did you know American law gave you, once, freedom from unreasonable
Search and seizures, the Man had to get a warrant signed, based on probable cause,
Before looking at your dump of a house with a flashlight and a tone
That stands tippy toe above your ratty green rug, your peeling walls,
The class notes about polygons the kids dropped on the steps to upstairs
On their way to their tiny rooms.
Then if he wanted to talk to you, by the same 4th Amendment privilege,
He had to tell you, in so many words, p.s. don’t talk to me after all
If you know what’s good for you. The 4th has been like an icicle in a February thaw
In the sunshine of stupid questions. For example, “well, what does silence mean? Does sitting quietly
Count? Is that a non-verbal invocation of silence, or
Do you mean, Hang on, I’m thinking. (In other words, I’ll screw myself, and soon.
Let the innocents Follow in my unrighteous path, giving up their right, too,
To sit quietly and mean: No thank you, officer,
I prefer not to.”) Meanwhile, under the burning interrogation light the questions have become,
The 4th puddles at our feet. There are other stupid questions: are we talking custodial silence?
Pre-Custodial? Interrogation? Post-arrest?

Once I heard a judge allow a warrantless search…
They found a gun. Well, someone had a gun.
Several someones if you count the stack of cops who went inside. But anyway.
A warrantless search demands: exigent circumstances, consent, landlord authority
But only for common space areas. . . there are motor vehicle exceptions to the
Warrant requirement, border exceptions, open field exceptions, and abandoned property exceptions.
You can’t expect the garbage goes to the dump. This wasn’t much any of those.
But the search was valid anyway. The DA argued the cops thought the apartment was vacant
Because the garbage hadn’t been taken out
In two weeks. And no one had seen her. Thus, police acted in good faith, and got the landlord
To unlock the ‘vacant’ apartment and heigh-ho, everything goes, they got what they were after.
Only the Fourth Amendment, standing clenching her hands in the corner, basically your tired,
Hungry, poor Amendment. Which reminds me. My dear friend Lore is the most amazing poet I know.

She got a fellowship today—ok but why. Why did that remind me? Because of Liberty, yo.
Lore is Liberty, because she was toast, she was a mess, and proud, godless and smart which made it
Harder to get free. But she did get free, and now she has a fellowship, and a path to a professorship
Someday, and a way to pay the heat, while she writes so fearlessly and deft. She can’t know–I get
Caught up—does anyone else miss the warrant requirement? Has anyone else noticed the cops own the
Media machine, We all watch Law and Order, NCIS, The First 48, the Mentalist, on an endless feed,
Sprinkled with the 6 o’clock and the 12 o’clock news. All from the point of view of we-GOT-to-get the
Guy. Never from the lousy point of view of the defendant. And it is. From beginning to end, it is a tale
Told by a prisoner, full of fear and anger, signifying echos—I had to, he made me, he stung me, I stung
Back
—of old plays. Lore’s victory today reminded me, some are not in that play of despicable moment,
Followed by terrible walk from that day on. Some are mastering the play
Of light between sentences, the play
Of dark images, frightening the reader with tender brutality,
Some are playing on swings at the end of the day, and their feet trail the bottom of the sky, their chins
Lift as their legs stretch out, and it is not as important to be bothered by anything of theory
By the time they head home.

Useful Legal Links

Instead of my usual essay or poem, I thought I would take a minute to provide links to useful sites involved in legal defense, employment in public interest work, and legal commentary I have found useful.

 

http://www.nysda.org/   This is a useful link for defense attorneys, especially public defenders in New York State.

http://crimmigration.com/  This is a good blog for attorneys working at the intersections of criminal and immigration law.

http://www.abajournal.com/ provides up to the minute legal news.

http://abovethelaw.com/ is for fun and commentary in the world of law and the study of law. It also contains a thorough legal employment search engine.

http://www.scotusblog.com/ is a link to news and updates about the Supreme Court of the United States

http://www.equaljusticeworks.org/ This is a link to one of the preeminent public interest opportunities in the U.S.  You can apply for the Public Defenders fellowship, or write a fellowship proposal involving an area of public interest law you are passionate about and apply for an Equal Justice Work fellowship

http://www.idealist.org/ is a link to a job searching engine which focuses on not-for profit work, including legal opportunities.

https://www.psjd.org/aboutpslawnet is a link to a site dedicated to public service legal careers.