Saturday, November 10, 2012

One Man Book Club

I recently finished A Wilderness of Error, which is Errol Morris's book about the Jeffrey MacDonald murder case.  For people of a certain age, the case was big news for many years, but it never was for me.  I basically knew nothing about it, which is important because those who do know about it often do not know what really happened.

Morris, as he always does, focuses simply on truth.  For anyone who has watched The Thin Blue Line or Fog of War, they will understand Morris's ability to present reality in a way that makes fiction seem unnecessary.

Wilderness of Error is a good read for everyone, whether a lawyer or otherwise.  It demonstrates -- to me, quite convincingly -- that even if MacDonald may have murdered his family, there was no way a jury could have found beyond a reasonable doubt that he had done it.  These statements might seem contradictory, but thy are not.  A criminal case -- involving a person's life and liberty -- is not a civil case where one side with 51 percent must win.  The deck should be stacked against the government, but the MacDonald case appears to be a situation where the inverse occurred.

The other very interesting fact about the MacDonald case is how the worlds of journalism and law collided to ruin MacDonald's chances of ever succeeding on appeal.  Once Fatal Vision (the book and then the TV movie) became popular, the actual facts of the case became obscured by the "facts" of the book and TV movie.  The main "fact" that became gospel was that MacDonald went loopy on diet pills and slaughtered his family, even though this was hardly even a theory of the government at the trial.  It basically became a "print the legend" scenario from The Man Who Shot Liberty Valance, but the legend being printed seemed to harm MacDonald's chances on appeal. 

If MacDonald had ever won on appeal to get a second trial, seemingly every juror in the country would have been prejudiced.  But MacDonald has never even gotten that far.  Simply being innocent -- if there is no new DNA evidence or some other factor that shows the trial was somehow erroneous -- is not necessarily grounds to reverse a conviction.  And so today, after 30 years of appeals, MacDonald is still in prison.  Ironically, the parole board has told him for years now that he will be released if he just admits he committed the crime.  But if he is innocent, how can he?  I will never understand the penchant of the government to demand remorse and an admission of guilt by a defendant who has not been convicted and maintains his innocence.  If MacDonald has served enough time to get released if he just said some words, he has served enough time to be released anyway.

MacDonald has always maintained his innocence, and today it is the only thing keeping him in prison.  But if you read Morris's book, you will understand why Morris would rather remain in prison than admit to a crime that no prosecutor could prove beyond a reasonable doubt.

If you would like to read another outstanding book that investigates the difference between the story people think they know and the truth, you should also read Standard Operating Procedure, a book by Morris and Philip Gourevitch.  It is about Abu Ghraib and will probably haunt your dreams, but sometimes the truth does that.

I hope to have some good beach reads for you in future installments of One Man Book Club, but for this one I definitely recommend A Wilderness of Error.  It is the most fun you will have reading about a miscarriage of justice this year.  I guarantee it.

Sunday, September 30, 2012

Bad Reporter

The title of this post is not only the name of the FX sitcom I am writing about my time in journalism, it is also true of my general failure to blog.  However, the fact that I rarely write on here is not because interesting things are not happening.  It is a lot of fun to watch Ada grow and learn new things.  We are able to communicate with her, although there are times she may be just ignoring me. Most NBA coaches get at least two years before Ric Bucher starts reporting that the players are tuning them out, but I did not even get that long.  Of course, Ada and her mother are both quite adept at pretending to listen while I go on extended one-person exegeses about such topics as the parol evidence rule, replacement referees, and advanced baseball statistics.  And I, of course, love them for even bothering to pretend.

It has been great fun taking Ada out with us on bike rides.  We have a seat for her that is interchangeable between my bike and Kat's bike, and Ada seems to enjoy the rides.  I have to commend Kat for how well she has succeeded at integrating a tiny person into the stuff we like to do. Basically I'm thanking her for the fact that I have not had to sacrifice any of the fun I get to have even though I also now get to hang out with a pretty cool kid who likes to watch football and golf.

While it is not all fun and games, it is quite an interesting experience.  I'm excited for Elliott and Katie to have some of these experiences soon with my nephew, Jones Alvin Gautreaux.  (That might not be his name, but that was the boy name Kat and I were going with, although we were going to use the middle name of Elliott.  Anyway, we won't be using it and it is too good not to share.  But geez, if the actual parents want to choose the name, I guess I'll leave it to them.)

I will be in attendance in the club section today's Miami Dolphins-Buzzsaw that is the Arizona Cardinals tilt.  I'm not certain that the quarterback play I will see today will be better than what I used to see on Thanksgiving Day at Gerald Rinne Field at Mildred Rinne Stadium.  I am going with a co-worker who is a TAMU grad and actually believes that Ryan Tannehill is an NFL quarterback.  I have told him all week that Tannehill is simply terrible, which probably guarantees that on Monday, after Tannehill torches the Buzzsaw for 350 yards, Peter King will be writing something gushing about how Tannehill learned to throw by tossing hay bales on a Texas ranch.

I said the Cards would go 4-12 this season in the season preview I wrote for Street & Smith's magazine (oh, you didn't see it?), so a win today means they must close the season on a 12 game losing streak.  But Arizona teams do not handle success well, so I am expecting a close contest today.  I'll be live tweeting all of the amazing perks that go along with the club section under #53percenter.

Good win by Nebraska last night, although I only saw parts where they played terribly. When the only player you can trust on the entire team fumbles after running into his own teammate, that is not a game your team will normally end up winning.  So for the Huskers to come back is pretty impressive.  However, Wisconsin might not be any good.

I'm reading a book called Who Gets What by Kenneth Feinberg.  It is about his work as a special master distributing large settlements in mass tort events, like the 9/11 Compensation Fund.  If you enjoy mass torts - and if I know my audience, they do - it is an interesting read.  However, I think it is hampered by the fact that so much has to stay confidential.  I'm similarly hampered in telling Kat what I think are funny stories, but she has informed me that these stories are not actually funny.  Anyway, if you are interested in further reading on mass torts - and I know you are - I can also recommend anything by Richard Nagareda.

In summary for those who don't want to read all of this: Ada is a good kid, football, football, mass torts, summary.

Saturday, June 30, 2012

Really long law post I typed on my iPad when I could not sleep

While I don't normally delve into the political realm on this blog because I don't know anything about politics, the interesting developments in the legal (entirely non-political, of course) world this week have spurred me to action. I spent this exciting Friday night reading the health care decision (which has such an unwieldy name it will be interesting to see what future decisions call it: NFIB, Sebelius, Obamacare seems too colloquial for legal writing, but I guess we will see) and the immigration decision, Arizona v. United States. I need to spend some more time with the immigration decision, but I do have some thoughts on the health care decision, although I'm sure you can find better insight throughout the web, or maybe even scrawled on a bathroom stall door. But nevertheless, I'll give you what I got.

As I said above, this is not a political analysis by me, whether that sounds convincing or not. For anyone who has read the opinion, my statement clearly echoes Chief Justice Roberts' statement that he was not making policy judgments but simply applying the law. Despite his best efforts to downplay the political, the prevailing sentiment appears to be that Roberts voted as he did to protect the legitimacy and esteem of the Supreme Court, which, while not a political decision, is still a decision not grounded in the law. The sentiment also appears to be that if Roberts had made a political decision he naturally would have sided with the conservatives, and,  if this sentiment is so pervasive, it seems pointless to attempt to protect the legitimacy of the Court because everyone has already decided that all of the decisions are political. However, in our current metaculture, one can hardly achieve any goal without a harsh spotlight focused on the attempt to achieve it. Thus, Roberts may have ultimately decided that making his decision was more important than why he made it.

Further, Roberts follows the Rehnquist model for being the Chief, and Rehnquist cared deeply about the esteem of the Court. He knew that the Court's power only exists when the other branches of government and the people respect its decisions because the Court has no army to enforce its decisions. But when a Chief begins to place the opinion of the Court before the Opinions of the Court, legitimacy can easily suffer. But, these decisions aren't made in a vacuum. Roberts did not make his decision entirely for any one reason. This country is so polarized that any decision is simultaneous grounds for sainthood and impeachment, so Roberts obviously understood that no decision would improve the view of the Court in everyone's eyes. So why did he decide as he did? Let's consider.

First, it's true that labels often don't matter. Early on in law school you quickly learn that calling a thing X does not make it X. Stating in a contract that the contract is not unconscionable and the interest rate is not usurious, does not make it so. Roberts used this first year maxim to explain why the individual mandate, though enforceable by "penalty," was really a tax. Whether this was persuasive depends on one's point of view, but it is well established that a court should interpret a statute in a way that makes the statute constitutional, if such an interpretation is reasonable. The dissenting Justices called what Roberts did "rewriting" the statute, although it is not as though the statute would now operate differently. Roberts ignored the labels, said the mandate acts as a tax, and construed the statute in a way he believed constitutional. To me, his analysis is defensible and well written. Like Rehnquist often did, Roberts wrote the opinion to be understandable to the layman. He clearly explained the trip from A to B to C; whether people care to ride along is a different issue.

Second, the decision to strike down the Medicaid expansion followed from clear precedent that one also learns early on in law school. The federal government cannot make "Godfather" offers to states when conditioning federal funds. The removal of all Medicare funding from a state is, as Roberts wrote, a gun to the head. South Dakota v. Dole (which is one of those case names with a hidden joke because it is about federal highway funding to states, although welfare funding would be funnier) pretty clearly prohibits the federal government from this kind of coercive conditioning. Thus, Roberts' decision is again defensible and clear. Lots of people will not like it, but it is clear how he gets there.

Also, like the best Rehnquist opinions, this opinion by Roberts seems strange and unexpected until one considers how well it solves the tangle of problems with which the Court was faced. No one really expected the "individual mandate as tax" argument to go anywhere, but Roberts saw how he could use it to uphold the constitutionality of the individual mandate, not expand the Commerce Clause, respect the legislative branch, and improve the perception of the Court. Being a good lawyer is about solving multifaceted problems, and this often means sacrificing intellectual purity for meaningful solutions. And let there be no doubt, Roberts was a great lawyer. While some will want to vilify Roberts for (allegedly) placing results before process, time, not men and women in robes, will be the ultimate judge.

On a different note, there is definitely some weirdness in the opinion that is highly noticeable to anyone who has read more than a few Supreme Court opinions. I do not claim to be the first to present these ideas, but I read the opinion without having read any commentary and some things jumped out at me. (Kat can vouch that I made these comments before reading anything else, although once I looked online these same thoughts were presented better and more clearly, but, nevertheless, I think they are interesting and my audience is captive). I do think Roberts switched sides at the very end. There are some obvious clues that point to this. Most are in the dissent by the conservative Justices. Rather than attacking Roberts' majority opinion, as a dissent normally would, the dissent takes apart the Government's arguments in its brief. Although the conservatives never miss an opportunity to flay the government when it wants to expand federal powers, it does not seem right to just ignore the opinion of the Court when it goes the other way. The conservatives' dissent definitely reads like it was the majority opinion at one time. In fact, my theory is that Roberts wrote it originally (although less harshly), he then abandoned it, wrote his own new majority opinion, Scalia came in and harshened up the dissent a bit but did not so revamp it that it actually dealt with the new majority opinion, and because the Justices wanted to leave for vacation, the whole thing went out. This is obviously highly speculative, but what leads me to believe Roberts originally wrote the dissent is that all four of the other conservatives signed it together -- it has no single drafter. This is relatively unusual. To me, if the Justices left the conference with Roberts already with the liberals, Scalia would have written the dissent. It seems more likely that they left the conference with Roberts with the conservatives and Roberts, as the Chief, gave the opinion to himself. My conjecture will take awhile to prove. We can hope Roberts will release his papers after he retires or dies and we can figure out what happened as June 2012 came to a close.

While I'm not a huge fan of the conflict and animus that is attendant with politics today, I do like it when there is a big Supreme Court case because it gets people interested in the Court and interested in the law. Maybe some people will even read Roberts' opinion and find they enjoy it. I certainly did. Because regardless of one's opinion of the Supreme Court or the national perception of the Court, the Justices, like judges across this country, have to give their reasons for their decisions. They cannot rely on dogma or morals or "common sense" or polling; they have to "show their work" and that is real justice.

(If any of this is interesting or made sense, it is largely in part to Professor Toni Massaro's Constitutional Law II class at the University of Arizona.  Professor Massaro shows students how to analyze Supreme Court decisions to a depth that goes beyond the holding and actually considers all of the factors that could play a role.  The parts that are boring or just plain wrong are, of course, mine.)

Saturday, April 28, 2012

Birthiversary: A Tradition Unlike Any Other

Birthiversary landed on a Saturday this year, which is exciting. I received some nice gifts, including some sweet Nike golf balls and some nice golf tees - the wooden kind, not the kind you wear. I played last weekend on the venerable Antelope Hills south course, and for about four holes in a row I played almost competently. This, of course, has led me to want to play more, which will only end in tears and a lighter wallet. But those four holes were glorious! I made three pars and a bogey (thus you can gauge my ability because I consider that great play). I even had a 20-foot eagle putt at one point. Of course, I commenced to three-putt for a par, but I'm more of a ballstriker than a putter anyway. Anyway, the nine holes of the south course remind me a lot of the Friend Country Club, where I spent many happy days as a youth, so it's fun to play there. I'll be sure to keep my blog readers apprised of the rise and inevitable fall of my golfing ability.

Thanks to everyone who sent gifts or cards for Birthiversary. However, I felt it necessary to post a picture of one of the cards I received because it was somewhat disturbing. Normally, grandmothers like their grandchildren, but this card from my mother evinces some frightening thoughts about Ada.
No Ada! That seems almost like a threat. Anyway, I will have to talk to her about her attitude toward Ada during our upcoming visit, assuming we still decide to go!

Another reason that Birthiversary is exciting this year is that it coincides with the beginning of the NBA Playoffs. Just about every series is worth watching, but I think the Heat-Knicks series should be great, OKC-Dallas, Lakers-Nuggets, and Clippers-Grizzlies should all be interesting. While I won't get to see all of the games, I will catch what I can. Although I was thinking we were heading for a Heat-Thunder finals, I think Heat-Spurs might be more likely. I think the Spurs know this is probably their last chance, and the Heat have no other option but a title. That would set up a delicious battle. However, let's not get ahead of ourselves. Let's enjoy the fact that JaVale McGee will be playing playoff games. There's a possibility that Kobe will pump fake JaVale so hard that he flies into the stands or off the backboard. The only downside is that JaVale and Ron-Ron cannot have a crazy-off at some point during the series. As you can see, there are a lot of subplots. If you want to keep up with the playoffs without actually watching, check out The Basketball Jones for the daily live vidcast at 10:30 a.m. Eastern or watch it recorded later. Sometimes I watch live before I go to work, but I always watch recorded at lunch if I miss it. It is great to live so close to work so I can come home each day for lunch and see my family watch the Basketball Jones. My family is there, too, and I think Ada likes it. She definitely likes the music.

Speaking of Ada liking music, excellent Youtube clip here of Ada and I dancing. If Ada were the heroine of a Scandinavian novel, she would be The Girl Who Stood Next to the Speaker. She loves to turn on the stereo and dance to whatever CD comes up. In general, she is a pretty confident and outgoing kid. She always sits right next to the reader at Storytime, and she does not seem to have too much fear. I know I'm not like that now, and I don't think I was like that then. However, it is good to have some confidence. I hope that can continue.

Ada is a great addition to the family, and I could not be happier with my two ladies. However, on Birthiversary, I want to thank Kat for all that she has done for me for the last five years (and before that, too) and all that she continues to do. She has allowed me to achieve so many things that I wanted, like going to law school and becoming a lawyer (and don't I know that is going to hurt at the divorce trial!), and she has done it all with a good nature and a fine spirit. She is definitely the best thing in my life, and I thank her each day (even if I forget to actually say it). So, for all of the days in the next 365 where I'll forget, I'll say: Thank you, Kat, and I love you!

Saturday, March 10, 2012

Da da da da da

The title of this post is what Ada has been saying repeatedly over the past few days. However because she says it so often, whether I am around or not, I don't think it refers to me. I think it is either a sound she likes or she is actually a Russian spy. But it's fun to hear her talking. It's also fun to see her climbing around, learning things, and being a little more patient with her parents, specifically her dad.

Ada and I went to swimming class this morning, and she did an excellent job. She is very adventurous and was even trying to dive into the water when I would have her sit up on the wall. I did not let her actually dive in, which might have affected how excited she was about doing that, but we will get to that soon. She is a good sport, and does not complain too much when I forget to keep her above water.

Other than Ada learning new things and trying things for the first time, not a whole lot is going on. I am learning new things and trying things for the first time, but discussion if those matters would be deathly boring for the reader. I like my job, though, and so it does not really matter if Nyone else would be interested.

The city basketball league ended this week and our team finished first. It was a fun league, and we had a fun team to play on. We are already talking about keeping the team together for the summer league.

Not much else to report, so I'll end it there. In the words of Paul F. Tompkins, "Don't get drunk and fight each other."

Saturday, February 11, 2012

100th Post

As the title indicates, this is my 100th post on the Tucsonic Boom. Considering that I have lived in both Phoenix and Prescott since I left Tucson, I guess this is not surprising. I've been trying to come up with a new name for the blog, but since it's already here I've just stuck with it.

Kat and Ada are in North Carolina, so I am here at home on dog duty. It's pretty calm, but I do miss Ada's brand of chaos. Even though she is not here, I present this photo series that explains a lot about us.

We are pretty similar and enjoy many of the same things. Our favorite pastime is watching NBA highlights, as we are doing here.

We both regularly have awkward moments. Also, we are often too intense. This leads to ridiculous facial expressions.

But ultimately, we do like to be together. Ada will even listen to me tell her about my job ...

... for about five minutes, after which she is almost fatally bored and it is time to hang out with Kat. Or sleep. Or crawl around and make sounds.

Ada has become a very good sleeper and likes to do it quite regularly. We actually got rid of her swing (the Ada Swings cam name doesn't really make sense anymore), but we gave it to some person with an infant on the way. Although Ada had many great hours in the swing, it was not sad to see it go. Apparently, I don't have the Rinne gene (I guess it's recessive) that prohibits giving away items related to children or youth. I'll remember the swing, but it's better off with someone who will use it. Ada has grown so big that she would destroy it if she kept using it, so it was time to move on.

Not much else to report. I recently finished reading The Art of Fielding by Chad Harbach. It's an excellent novel and highly recommended for anyone, whether you like baseball or not. I have started 11/22/63, the latest Stephen King book, which is supposed to be quite good.

Ada's not yet reading books (although she eats them regularly!), however, she definitely is interested in popular culture. In this final photo of cuteness, she is already showing her interest by going through our DVD and CD bins and laughing at our terrible sense of taste.

Ugh! Is that a Bright Eyes CD? Are we children? I mean, I am, but what's your excuse?

Saturday, January 21, 2012

Almost Crawling/Still Cute

Ada and I are hanging out together this morning while Kat is at yoga. I get a chance to see what Ada is like when I'm not around. The answer is quite similar to what she's like when I am around. She is very good at playing quietly with her toys and she does not get into too much mischief. She is an excellent sleeper and a pretty adventurous eater.

I realize how boring that prior paragraph was but some people actually think such information is interesting. I will never understand some people.

What is interesting is that Ada is becoming a little bit more person-like. She has not crawled yet because all she wants to do is walk. You have to crawl before you can walk, but I think for her it may be "You can just roll around for a long time until you can walk." I was wondering if she is not crawling because the only two people she gets to hang out with (a real sad state of affairs for her!) never crawl and always walk. I have been trying to demonstrate crawling as an example, but it's not fun and hurts my knees. Ada may have the same opinion, and thus I fully understand her aversion to crawling.

There is not much news other than Ada news, so I don't have much to report. I don't have any funny cases I've run across, but I did like the name of this case: In re TMI Litigation, 199 F.3d 158 (3d Cir. 1999). Although I am still new to being attorney, I've come to quickly realize that all litigation is TMI litigation.

Kat bought a new desk, which we are going to attempt to assemble today. It's not from IKEA, but I think it has even more parts than furniture from IKEA. I will be cursing an Allen Wrench at some point today, that much is clear.

I've been enjoying the photos of Chlomaline. (Although remember, it's important to talk to your doctor before beginning Chlomaline!)

Ada is now hitting my chair, so I guess this means that this particular post is over. Sorry for the Christmas letter quality of this post. My topics for discussion are limited by ethics rules, ennui, and extremely boring information. I do the best I can.

What I'm Reading: The Marriage Plot by Jeffrey Eugenides
What I'm Watching: Downton Abbey Season Two and NFL Football -- two great tastes that taste great together
What I'm Listening To: The Decemberists "The King is Dead"