STILL ON PATROL

Just When You Think You've Seen It All - Wisconsin Says Necrophilia Illegal Because It's Non-Consensual

WARNING:  GROSS-OUT ALERT

The headline reads:  "Wisconsin Court Rules Sex With Dead Body Illegal."  This lawyer asks, "So why is this news?"  The answer?  Wisconsin does not have an anti-necrophilia (sex with the dead) law on the books, so the state Supreme Court used a rape law instead.  Actually, pretty creative, very twisted reasoning, but the end result is a good one to put these guys in the slam. 

Here's part of the story: 

The court waded into the grisly case after lower court judges ruled nothing in state law banned necrophilia. Those decisions prompted public outrage and a push by a state lawmaker to make sex with a corpse a crime.  In Wednesday's 5-2 decision, the high court said Wisconsin law makes sex acts with dead people illegal because they are unable to give consent.

The ruling reinstates the attempted sexual assault charges against twin brothers Nicholas and Alexander Grunke and Dustin Radke, all 22. The charges carry a punishment of up to 10 years in prison.

Justice Patience Roggensack, writing a majority opinion with three other justices, said state law bans sexual intercourse with anyone who does not give consent "whether a victim is dead or alive at the time."  "A reasonably well-informed person would understand the statute to prohibit sexual intercourse with a dead person," she wrote.

Jefren Olsen, an attorney who represented Radke, said the decision was flawed because the law was never intended to punish necrophilia.  "Obviously, the facts are rather notorious and not the easiest to deal with," he said. "I assume that had some impact."

Police say the three men, carrying shovels, a crowbar and a box of condoms, went to a cemetery in southwestern Wisconsin in 2006 to dig up the body of Laura Tennessen, 20, who had been killed the week before in a motorcycle crash.  Nicholas Grunke had seen an obituary photo of her and asked the others for help digging up her corpse so he could have sexual intercourse with it, prosecutors say.  Authorities say the men used shovels to reach her grave but were unable to pry open the vault. They fled when a car drove into the cemetery and were eventually arrested.  The men were charged with attempted third-degree sexual assault and misdemeanor attempted theft charges. The case has been on hold as prosecutors appealed the dismissal of the assault charges.

The really sad bit of information to come from this reporting is that with this decision, Wisconsin becomes one of only 20 states that specifically find, by court decision or statute, necrophilia illegal.  With all the goofy laws on the books, why isn't this one universal?  It's actually a minority position among the United States!  Here's betting that several state legislatures will add an anti-necrophilia law in their next session, after the publicity this case will no doubt receive.

U.S. Supreme Court Upholds Second Amendment

The U.S. Supreme Court continued its handing down of significant rulings this week by announcing today its 5-4 decision in District of Columbia v. Heller, affirming the D.C. Circuit Court of Appeals decision to overturn an absolute ban on handgun ownership enacted by the District of Columbia.  Heller, a licensed and armed security guard by trade, had been turned down in his request to keep a handgun in his home prior to bringing suit.  Heller, interestingly enough, lives in the same Capitol Hill neighborhood in which the Supreme court building is sited.

The law, adopted by the District of Columbia in 1976, banned residents from owning handguns, with the lone exception being if they owned one in the District prior to the law took effect. Shotguns and rifles could have been kept in homes, if they were registered, kept unloaded, and disassembled or equipped with trigger locks.

In doing so, the Supreme Court upheld the Second Amendment as granting the right to gun ownership.  The Second Amendment says "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."   Proponents of the handgun ban had argued that the Second Amendment was limited in its application specifically to state militias.  MSNBC reports that the Court's opinion addresses this issue thusly:   "Writing for the majority, Justice Antonin Scalia said that an individual right to bear arms is supported by "the historical narrative" both before and after the Second Amendment was adopted.  The Constitution does not permit "the absolute prohibition of handguns held and used for self-defense in the home," Scalia said." The five Justices in the majority were, not surprisingly, Court conservatives Scalia, John Roberts, Samuel Alito, Clarence Thomas, and "swing vote" and the author of yesterday's death penalty ruling, Anthony Kennedy.

MSNBC further reports that Justice Stephen Breyer wrote in dissent, "In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas."   But in the majority opinion Justice Scalia says nothing in the decision should "cast doubt on long-standing prohibitions on the possession of firearms by felons or the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings."   At the end of his 64-page opinion, Scalia said the majority is "aware of the problem of handgun violence in this country" and believes the Constitution and the court's decision "leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns."

This strikes me as a good and logical decision in a difficult area.  I am rarely a proponent of outright government bans because they often take the shape of government becoming too intrusive into telling Americans how to live.  In this situation, there is no doubt that gun violence is a problem.  There is also no doubt that the vast majority of handgun owners are non-violent, and if they ever actually fire a handgun it is on a range.  These people are not the problem.  And it must be accepted that for criminals to obtain guns would be little affected by outright bans, such that laws such as D.C.'s would not directly or effectively limit handgun violence in the nation's Capitol, nor would similar bans solve problems elsewhere.

The Court's decision leaves intact the ability of states to regulate gun ownership.  There should be little complaint with regulation that involves training and licensure, or background checks for a purchaser.  In fact, now that I've learned how easy it is to get a carry-and-conceal permit in Kentucky, I would not oppose toughening up those requirements.  For example, the shooting proficiency test is from about ten feet with a man-sized target.  My friend Bill with whom I took the class shot a smiley face on his target.   

I would not oppose certain regulations meant to tighten or close the gun show and county-fair-trunk-lid-sales loopholes.  I would not oppose better rules for home storage of guns where children are in the household, nor criminal penalties for negligent adults in this regard.  Although this will get me in trouble with the NRA, I would not oppose substantially more strict regulation of assault weapons and the kits to render them capable of full automatic operation.  And, I would not oppose enhancement of criminal sentencing for crimes committed with the use of a gun.

That said, I applaud the Court's preservation of one of the fundamental rights granted to all Americans.  There are hundreds of stories of people who have protected themselves, or family or friends, by reason of gun ownership.  I would suggest that these stories may at least balance, if not outweigh, those of gun tragedies.  In our violent society, Police cannot be everywhere, and there is an unfortunate, albeit real, need for personal security.  Any freedom carries certain risks that a free society must accept to remain free, even while imposing well-thought and equitable regulation of those freedoms to minimize their risks.

U.S. Supreme Court Declares Execution Unconstitutional for Child Rapists

In a 5-4 decision, the U.S. Supreme Court has ruled in the case of Kennedy v. Louisiana that the death penalty is unconstitutional for the rape of a child below the age of 12.  Patrick Kennedy, 43, had been convicted of raping his 8-year old stepdaughter in her own bedroom, inflicting severe internal injuries and bleeding, requiring multiple surgeries to repair, not to mention the obvious extreme emotional trauma from which the child may never recover.  Under a Louisiana statute, he was senteced to execution.  The appeal challenged the constitutionality of execution as punishment for child rape.

Previous Supreme Court decisions held that the death penalty could not be meted out for the crime of rape.  Those decisions, however, were in cases of the rape of adult women.  The Louisiana Legislature drew the distinction between those rulings and cases of child rape below the age of 12  when it passed the law in question.

Writing for the majority (Kenedy, Souter, Ginsburg, Breyer, Stevens), Justice Anthony Kennedy said: 

Petitioner’s crime was one that cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted on his victim or to convey the revulsion society, and the jury that represents it, sought to express by sentencing petitioner to death.

... Based both on consensus and our own independent judgment, our holding is that a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth Amendments.

... The evidence of a national consensus with respect to the death penalty for child rapists, as with respect to juveniles, mentally retarded offenders, and vicarious felony murderers, shows divided opinion but, on balance, an opinion against it. Thirty-seven jurisdictions—36 States plus the Federal Government—have the death penalty. As mentioned above, only six of those jurisdictions authorize the death penalty for rape of a child. Though our review of national consensus is not confined to tallying the number of States with applicable death penalty legislation, it is of significance that, in 45 jurisdictions, petitioner could not be executed for child rape of any kind.

... punishment by death may not result in more deterrence or more effective enforcement. In addition, by in effect making the punishment for child rape and murder equivalent, a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim. Assuming the offender behaves in a rational way, as one must to justify the penalty on grounds of deterrence, the penalty in some respects gives less protection, not more, to the victim, who is often the sole witness to the crime.

...Each of these propositions, standing alone, might not establish the unconstitutionality of the death penalty for the crime of child rape. Taken in sum, however, they demonstrate the serious negative consequences of making child rape a capital offense. These considerations lead us to conclude, in our independent judgment, that the death penalty is not a proportional punishment for the rape of a child.  (My emphasis).

The minority (Roberts, Scalia, Thomas, Alito) dissent was authored by Justice Samuel Alito and included: 

In summary, the Court holds that the Eighth Amendment categorically rules out the death penalty in even the most extreme cases of child rape even though: (1) This holding is not supported by the original meaning of the Eighth Amendment; (2) neither Coker nor any other prior precedent commands this result; (3) there are no reliable “objective indicia” of a “national consensus” in support of the Court’s position; (4) sustaining the constitutionality of the state law before us would not “extend” or “expand” the death penalty; (5) this Court has previously rejected the proposition that the Eighth Amendment is a one-way ratchet that prohibits legislatures from adopting new capital punishment statutes to meet new problems; (6) the worst child rapists exhibit the epitome of moral depravity; and (7) child rape inflicts grievous injury on victims and on society in general. (My emphasis).

The party attacking the constitutionality of a state statute bears the “heavy burden” of establishing that the law is unconstitutional. That burden has not been discharged here, and I would therefore affirm the decision of the Louisiana Supreme Court.

Although this decision is not surprising to this blogger, it is disappointing.  As Justice Alito points out in the dissent, those who would rape a young child "exhibit the epitome of moral depravity."  The pretzel logic employed by Justice Kennedy of assuming that a child rapist would behave rationally and think about the death penalty in deciding whether to kill his victim simply ignores the obvious lack of rationality in the act itself. 

As I have always understood the rationale behind the death penalty, it is less for deterrence than it is for removal of those from society deemed to be so morally deficient and depraved that execution is seen as an appropriate penalty.  This is why a murderer must be shown to have not only killed, but to have done so under exacerbating circumstances to render the crime particularly foul and offensive, such as killing a peace officer.  Although it is an impossible task to attempt to "rank" crimes on a scale of moral depravity, surely rape of a child under the age of 12 must be near the head of that list.

The Court's tally of states that favored executions of child rapists is misleading.  While only 6 had passed such laws prior to the decision, several other states, such as Missouri, have been awaiting the Court's decision before enacting similar laws.  Had the court given the green light, there can be little doubt that more of those states that have death penalty laws would have proceeded with passage of child rapist death poenalty laws.

As a Christian it can be difficult to reconcile the death penalty with the commandment "Thou Shalt not Kill" and other teachings providing that it is not for man to judge but that God will mete out the final punishment at the Day of Judgment.  But we also read of a God in the Old Testament who spoke of "an eye for an eye."  And, when reading the entire contextual passage most cited for the "judge not lest ye be judged" principle, we see that God is not saying we should not judge, but that we should be careful how we judge lest the same standards are applied to us:   "Do not judge, or you too will be judged.  For in the same way you judge others, you will be judged, and with the measure you use, it will be measured to you.  Why do you look at the speck of sawdust in your brother's eye and pay no attention to the plank in your own eye?"   Matthew 7: 1-3.  Are child rapists such as Patrick Kennedy the "plank in our own eye" we should remove? 

To be honest, I do not have the answer insofar as reconciling execution by the government with Christian principles.  It is troubling, and not an easy point to resolve.  Speaking as an attorney, however, once a state legislature decides, in its collective "wisdom", that an act such as the rape of a child younger than twelve is an act so morally depraved that it believes the perpetrator should be permanently removed from society by execution, it is indeed a heavy burden for anyone to argue for its unconstitutionality.  Under the facts of this case, I must respectfully disagree with Justice Kennedy, and agree with Justice Alito that the burden has not been met.

No Surprises There - California Declares That "Marriage" Must Apply to Same-Sex Couples

We're no longer surprised at any Court decisions that come from the California judiciary.  Since I graduated from law school lo, those many years ago, one of the quickest ways to denigrate any legal authority cited by opposition has been to point out, "it's a California case."  The rest is understood - the state's courts are nationally known for liberal, judicial activism which often bucks national trends, and are often known for wacky, off-base reasoning.

Today, as expected, California found unconstitutional (under the state constitution) any laws that did not extend the term "marriage" to same-sex unions. I will admit to not reading the entire 172-page opinion and am fairly certain that I shall never be so in the throes of insomnia that I would do so.  I have, however, read the excerpt provided for us by Greg Griffith at Stand Firm, which seems to convey the essence of their thinking.

One interesting conundrum in this decision is he inconsistent manner in which they treat the existence of California "domestic partnership" laws.  On one hand, the Court seems to brag at how progressive California is by having enacted these laws, which "afford the couple virtually all of the same substantive legal benefits and privileges, and impose upon the couple virtually all of the same legal obligations and duties."  Later, however, in setting forth their reasoning for declaring any limitation on the use of the term "marriage" to describe a committed relationship, the Court found it to be discriminatory that same-sex couples could only use the term "domestic partners" as opposed to marriage.  Huh?  Didn't you just say the two were virtually the same thing?

The dissent points out that California voters passed Proposition 22, which limited the use of the term "marriage" to one-man, one-woman relationships, only 8 years ago, and that the Court was simply overriding the will of the people on this issue.  Do we see any parallels here?  Of course we do.  The liberal agenda always trumps everyone and everything.  Liberals are, of course, much smarter than the great unwashed masses, and are therefore entitled to tell the rest of us how to live and what to think.  So long as the liberal, GLBT agenda is at stake, then form will always triumph over substance, and the goals of the few will override the will of the many.

Kentucky Court Rules Public Funding for Private Pharmacy School Unconstitutional

Proving, in a timely fashion, my statement in an earlier post that serious stuff does get done in Kentucky courtrooms, Franklin Circuit Judge Roger Crittenden ruled today that the legislation passed by the 2006 Kentucky Legislature to provide $12 million in funding for University of the Cumberlands, a private, Southern Baptist college in Williamsburg, KY, to build and operate a pharmacy school, was unconstitutional under Sections 5 and 189 of the Kentucky Constitution.

This bill was controversial enough when passed, with many saying it flatly ignored existing precedent on the constitutionality of such legislation.  To anyone who has followed the State Senate career of  Senate President David Williams (right) and Republican Majority Leader Dan Kelly, for them to ignore the rules to do something they want is no news whatsoever. 

An even greater controversy erupted shortly after passage of this law, when the University of the Cumberlands kicked out a student, Jason Johnson, for stating publicly that he is gay on a web site.  A cacophany of pro-gay and liberal action groups arose demanding that this funding be withdrawn unless Cumberlands reversed its position.  The college refused and the Legislature refused to revisit the issue, and the tumult eventually died down.

Kentucky's Constitution is much more specific than the so-called "separation of church and state" language in the U.S. Constitution.  Section 5 states: "No preference shall ever be given by law to any religious sect, society or denomination nor to any particular creed, mode of worship or system of ecclesiastical polity."  Section 189 states:  "No portion of any fund or tax now existing, or that may hereafter be raised or levied for educational purposes, shall be appropriated to, or used by, or in aid of any church, sectarian, or denominational school."

There will be little surprise that this law was declared unconstitutional, nor will there be much surprise when the Notice of Appeal is filed to continue the debate.  Most political pundits understood when the law was passed its primary, and blatant, purpose was to try to bring $12 million to Senate President Williams' home district, as opposed to enhancing an existing Top-20 PharmD program at the University of Kentucky, or funding a new one at any one of several state-run community colleges which could have accomodated the new school in population areas more conducive to attracting students.  These political overtones as well as Cumberlands' anti-gay stance, will no doubt continue to be the main public focus in this time where Kentucky is struggling to find funding for clearly public programs, particularly in education.  Any one of several University presidents would love to get their hands on that $12 million right now.

Practicing Law in Kentucky - Coming to Court Dressed as Elvis, and Punching Your Lawyer

  OK, to the rest of the world, I know Kentucky is starting to look like a real circus in her courtrooms.  Being a member in good standing in the Kentucky Bar Association, let me state that yes, I am red-faced over all of this, and no, it's not always that way in Court here.  "Night Court" we're not, but I will have to admit that we have our share of, shall we say, "unique" personalities.

You've probably seen the video on the news or in the internet of the criminal defendant punching out his own Legal Aid attorney in a Scott County, Kentucky, courtroom.  He had been caught after rappelling through the roof of a local K-Mart and steaking $55,000 worth of jewelry (which is one heck of a lot of K-Mart jewelry!), but was complaining that his attorney was not seeking a continuance vigorously enough to allow time to prepare his defense.  I live in Scott County so you can bet it'll be a while before I hear the end of that one from my colleagues around the state.

Today's  news includes the story of a criminal defendant in Jessamine County, which is about two counties south of Scott County, who showed up in Court for a pretrial conference both dressed as Elvis,  and drunk to the tune of a blood alcohol over .16, i.e., over twice the legal limit for intoxication.  He is now serving three days for contempt of court while the prosecutor tries to figure out just how many different laws have been violated so additional charges can be brought.  (Actually I recently read an accident report from a barge accident at a coal terminal on the Ohio River, in which one of the listed witnesses is "Elvis Presley".  So, I now have proof that he is alive and working on the river near Huntington, WV, not working as a greeter at a Wisconsin Wal-Mart.)

There are a world of great (and not-so-great) stories from Kentucky courts over my 25+ years in the practice.  I'm saving most of them for a book someday, but my favorite involves a homeless alcoholic who should have received frequent-flyer points, he was so often in the Fayette County (Lexington) court system.  When the weather would get bad, this gentleman would get drunk to get his "three hots and a cot" on the County.  After his public intoxication and fighting convictions reached a total somewhere north of seventy, one of our local judges decided to try a different tactic.

This gentleman was brought before the judge, the charges were read, and he was asked how he would plead.  He started into his usual apologetic, "oh, your honor, I've been bad" speech and entered a guilty plea, and agreed to sentencing immediately.  The judge gestured to the court stenographer to turn off the tape recording, the gave his most stern glare to the Defendant.  He intoned, "By the power granted me by the Commonwealth of Kentucky, I hereby sentence you to die in the electric chair at 6:00 a.m. in the morning.  We're just not going to tolerate your behavior any more.  Be thinking about your favorite preacher, your favorite meal, and your favorite hymn.  Bailiff, get him out of  here!"

Everyone else in the courtroom was biting lips, tongues and fingers to keep from laughing out loud, but this Defendant bought the whole thing.  He fell to his knees and was dragged back to the holding cell behind the courtroom.  For the remainder of that day's criminal docket, anyone in the courtroom could hear him banging on the wall and shouting, "Judge, I need to talk to you.  I ain't been THAT bad.  You cain't kill me..."

At the end of the docket, the Defendant was brought back before the Judge.  He made his plea that he hadn't been THAT bad, and the Judge held up his hand for silence.  He said, "I'm not a harsh man.  I will give you one more chance.  I will commute your sentence to time served, so long as you promise me to get out of town and never be seen in this courthouse again."  The Defendant promised, and the Judge struck his gavel and said, "So ordered."

The Defendant turned and ran from the courtroom, nearly knocking over several people on his way  out.  The story goes that he boarded a bus that afternoon, and was gone from Lexington for over six months.  That is, until someone told him he could not have gotten the death penalty for public intoxication.

No, it's not always this much fun, but the few good ones we get will last us a lifetime of story-telling.

Death Penalty Protocols Under Scrutiny

The United States Supreme Court accepted a very significant case this week in agreeing to review the appeal of Ralph Baze and Thomas Clyde Bowling, two convicted murderers and death-row inmates from Kentucky.  The appeal involves the growing question of whether lethal injection protocols in use in the United States constitute "cruel and unusual punishment" by inadequately anesthetizing the subject before using a drug to stop the heart.

As a preliminary point, I do not intend to discuss the morality or legality of the death penalty itself.  Suffice it to say that in the cases of Baze and Bowling, the Supreme Court has chosen two inmates who are unquestionably among the lowest forms of human flotsam, such that any emotional or moral issues associated with these two will be at a minimum.  Baze ambushed and executed two police officers, shooting each of them three times in the back with an assault rifle and one of them once in the head as he lay on the ground. Bowling murdered a young husband  and wife and shot their two-year old son as they arrived to open their independent dry-cleaning business.  Few in this world would have missed either had Kentucky completed their execution.

The question at hand is the protocol.  Typically, the protocol involves injection via intravenous line first of sodium thiopental to render the inmate unconcious.  Next, a paralytic, either pancuronium or tubocurarine, is injected to induce paralysis of all muscles except the heart.  Third, potassium chloride is injected to stop the heart and induce death.  These protocols were introduced beginning in the late 19th century as a more "humane" form of execution than hanging, firing squad, or the electric chair, and are now the primary form of execution used in the United States.

The issue at hand involves whether sufficient anesthesia is created in the first-stage drug injection.  Opponents of the legal injection protocols argue that with insufficient anesthesia followed by a paralytic, the inmate suffers extreme pain upon introduction of the third drug but has been left unable to respond to it by the second drug, thus lying still and in extreme pain while the heart is being stopped.  Some opponents also argue that less scientific research has gone into this protocol than that for euthanizing animals, and question why a single massive dose of a barbituate, such as is used in animals, would not be preferable.  Another objection is the non-participation of trained medical personnel in the procedure, which in some cases has resulted in mechanical difficulties with such things as I.V. placement.

Proponents argue that these objections are theoretical and unproven, that sufficient anesthesia is induced by the protocol, and that the procedures as set forth are humane, anecdotal stories of difficulties notwithstanding.  Some proponents of the death penalty also argue, outside the courtrooms, "who cares?" if execution hurts - these killers didn't give their victims any such courtesy.  I have heard this statement a lot this week about Baze and Bowling in particular.

What I don't understand in this controversy is why law enforcement and prison officials don't completely circumvent this whole argument by simply re-working their protocol.  Perhaps there is some legal nuance I have missed - is there some reason the protocol cannot be changed once the sentence is rendered?  Is the way a criminal defendant would be executed part of the consideration in their sentencing?   I don't know and perhaps a more astute commenter can answer that question. 

But if there is not such an impediment, why defend a protocol which might have problems when it would be much simpler to rectify the problem by adjusting the dosage of anesthetic upward, changing the anesthetic to a more effective medication, or coming up with a better protocol altogether?  After all, this form of lethal injection is now over 100 years old, and surely more sophisticated and less potentially painful methods of execution are available within the realm of medical science. 

One problem is that medical groups such as the AMA have declared participation of physicians in protocol research or actually administering the lethal drugs would be unethical.  Nevertheless, if we are going to continue executing certain criminals in our society and if we are going to continue the proscription against "cruel and unusual" punishment, I am certain that somewhere in our massive scientific community lies the expertise to create an acceptable method of doing so.

The "Fairness Doctrine" is Anything But

The former FCC "fairness doctrine" was a regulation that required "equal time," i.e., a fair opportunity for both sides of a position to be presented over the same airwaves.  This rule was priginally imposed in the early days of television, when there was fear that broadcasters would overly influence public opinion by selectively using the airwaves to push their political point of view. 

As communication technology advanced, however, it became clear that this rule was not only unnecessary, but as Chief Justice Warren Burger said in Miami Herald v. Tornillo, "Government-enforced right of access inescapably dampens the vigor and limits the variety of public debate."  This changed point of view was reflected by the FCC repealing the "fairness doctrine" in 1987, and thereafter repealing two corollary rules providing air time for responses to personal attacks and to political endorsements in 2000.

With the rise of conservative talk radio hosts such as Rush Limbaugh, Shawn Hannity, et al., and their influence gained through growing popularity, there have been some recent low-grade rumblings about reinstating some form of the "fairness doctrine," which would require these talk shows to present opposing viewpoints in equal amounts of air time.  These proposals are not only ludicrous and offensive to the Constitutional principles of free speech under which we are supposed to live, but they plainly illustrate the failure of certain political ideologies to appeal to the great majority of the American people. 

Other than the FCC's well-known regulation of what is or is not impermissibly offensive in the public electronic media, any further regulation of content of public broadcasts strieks me as an inappropriate abridgement of First Amendment free speech rights, not to mention a damper of vigorous public debate as stated by Chief Justice Burger.  The power of the marketplace of ideas dictates who will gather more listeners or viewers, which seems to me to be a hallmark of a nation founded in liberty.  Some radio hosts, such as Leland Conway here in Lexington on WLAP-630 AM, go out of their way to bring on people of diverse viewpoints to debate issues with the host, and in doing so have become very successful.  Other radio and TV hosts do not, remain strictly ideological, and are also successful.  If they can do so within the free marketplace, so be it.  Government has no place to intrude in this process.

Although I tend to discount "slippery slope" arguments in most settings, on the issue of the "fairness doctrine" I must wonder, if it is reinstated, how far will it go?  Recent statistics state that some 25% (and growing) Americans get their news and views from the internet, including from a group of well-respected and informed bloggers.  Given the other stats of the poor level of internet penetration in this country (less than 50%), this statistic will probably only grow.  Should we thus require bloggers to reflect both sides of an issue?  Or is the better course to say, "if you want to present an opposite viewpoint, get on Typepad or Blogspot and set up your own blog, and opine to your heart's content."  If and when a blogger truly has something to say, readership will eventually come. 

This is the free marketplace of ideas, and this is the kind of freedom the authors of the Constitution envisioned.  Can you imagine the likes of Benjamin Franklin or Thomas Jefferson with the power of an internet blog.  I suspect "Poor Richard's Bloganac" or "The View From Monticello" would be highly read and influential websites were we so fortunate as to be able to read them.  The so-called "fairness doctrine" is thus anything but, and should be left on the ashheap of history where it belongs.

A Rose By Any Other Name...

The National Chamber of Commerce has recently criticized the American Trial Lawyers Association (ATLA) for changing its name to the American Association for Justice (AAJ), saying that the new name is misleading for the trial lawyers' group.  The Chamber is also critical of various state associations which are following suit and changing their names to use some form of the word "Justice" and remove the "Trial Lawyers" appellation.

A little background is appropriate, and as usual missing from the news coverage.  For years there have been two primary organizations within the segment of the legal profession which does trial work.  The ATLA has been an organization for those who represent plaintiffs in civil court cases.  In fact, the ATLA requires for full membership that attorneys do more than half their work for plaintiffs.  The other side of the fence is the Defense Research Institute (DRI), which, as its name suggests, focuses on issues for the defense of civil cases.  Neither organization pays much, if any, attention to criminal work on either side.

In recent years, the media has very effectively demonized "trial lawyers" as being one of the many societal problems in America, by telling half-baked versions of stories of excessive verdicts such as the so-called McDonald's cup of coffee case.  These stories virtually always blame such excesses of the civil justice system on the lawyers who represent the plaintiffs, leaving out the fact that it is Judges who allow these cases to proceed to trial, and juries made up of a cross-section of citizens who decide on these verdicts.  Nope, it's those evil "trial lawyers" who somehow mesmerized those poor jurors to cough up millions of dollars of Ray Kroc's money.

This demonization has reached all of us who do work in the courtrooms.  I am primarily a civil court defense attorney, meaning I represent the companies and individuals who are being sued by the ATLA guys.  But, by definition I am a "trial lawyer" or "litigator."  So I have found myself being put on the defensive more and more by people who have swallowed the media bias against "trial lawyers" without truly thinking about why they have formed these opinions.

Are there bad apples amongst those of us at the Bar?  Absolutely.  In Kentucky we presently are following a case of three "trial lawyers" who greedily took over twice the agreed fees in a prescription drug class-action case.  These three have been sued in civil court and were recently ordered to disgorge some $42 million in excessive fees plus 8% interest dating to 2001.  There are further claims for money damages to be decided, plus federal fraud charges pending.  No matter the outcome, though, they have given our profession a black eye.

That said, however, there are hundreds more "trial lawyers" who do good honest work vigorously representing their clients in civil court cases every day.  I cannot and do not blame them for wanting to move away from what has become a pejorative label by removing the "trial lawyers" name from the association's title.  Certainly there are dozens of organizations in America who do not act in a manner consistent with their title - many churches, for example - and the Chamber of Commerce isn't after them.

Good Work by the N.C. Bar

Although many would say the case was a slam-dunk, and it probably was, the North Carolina Bar Association did good work last Saturday in voting to disbar Durham District Attorney Mike Nifong for his gross misconduct in the Duke lacrosse team alleged rape case.  The fear I had was that there would be some strong verbiage but weak punishment doled out, which would have exacerbated the black eye Nifong has already given the legal profession.  Instead, the N.C. Bar stood tough and put the proverbial steak on our black eye by disbarring Nifong.  Prosecutors around the country should be applauding this ruling.

Too many attorneys throughout time, and most particularly in today's litigious society, put the competitive desire to win, whether it be a conviction or a civil judgment, ahead of ethical constraints and the overriding need to "do the right thing."   Nifong clearly saw this case as an opportunity to curry favor with the African-American voters of Durham and win re-election, and in so doing he made many compounding bad choices.

Prosecutors in particular wield a lot of power, and have concurrent high ethical standards to which they must be held.  Prosecutorial misconduct such as that perpetrated by Nifong, and as chronicled in John Grisham's An Innocent Man, can ruin lives in so many ways that there needs to be a strong counter-balance of public responsibility when those lines are crossed.

So, while in some ways I feel for Nifong as being a victim of his own competitive excesses, at the same time his severe punishment was a necessary step to warn other prosecutors, and all attorneys, of the dangers of stepping over that ethical line.

Another Sad Lawsuit...

The Associated Press reported today that the father of deceased St. Louis Cardinals pitcher Josh Hancock has filed suit over his death in a traffic accident April 29.  Yes, this is the same Josh Hancock who was intoxicated over twice the legal limit, who had marijuana in the car (although no public statement has  been made about whether he had used any), and was talking to a woman about meeting him at another bar when he slammed into the back of a tow truck, without braking, which had its emergency lights on while helping a stalled vehicle.

Two of the named defendants are Mike Shannon's Restaurant and its manager, under a dram shop claim for allegedly continuing to serve Hancock and letting him leave after he was intoxicated.  Dram shop liability is recognized in most states, and places a responsibility on a bar owner to recognize when a patron has "had enough" and cut him off.  I understand the nature of the claim against the restaurant.  Maybe a few more such claims would stop over-serving, regardless of whether the customer is a celebrity or not.

The other named defendants are the tow truck driver and the driver of the stalled vehicle.  The latter individual, according to police reports, had his car stall after being side-swiped by another vehicle some minutes before the Hancock crash.  The tow truck driver stopped to assist.  The lawsuit blames both of them for not getting the stalled car out of the highway quickly enough.

On one hand, I understand a family's grief and the need to find someone, anyone, to blame for the death of a vibrant young man in tragic fashion.  Regardless of the deceased's errors in bringing about his own death, it must be abidingly difficult to accept that instead of lashing out at someone else.  On that same hand, I also understand that attorneys have an ethical duty to represent their clients zealously and pursue any and all legitimate legal rights their clients direct them to act upon.

But on the other hand, well, come on - the tow truck driver and the driver of a stalled car who was himself hit moments before?  I can maybe even see suing the tow truck driver if he didn't follow the prescribed procedures for a mid-interstate highway pick-up, but that's pretty thin - the guy was trying to help another motorist in trouble.  He was a "Good Samaritan" in the classic sense of the name.  Some states have laws which protect "Good Samaritans", but those often only apply to harm done to the people they try to rescue, so I don't know if this "Good Samaritan" has any statutory defenses in Missouri.

The attorney says there may be others added to the suit, and the AP speculated that he may name the St. Louis Cardinals for not being better "keepers" of their adult professional baseball players.  If he's going to go this far, why not name the cell phone company whose network Mr. Hancock was using to make a call, and heck, go for it and name the woman he was chatting up and inviting to another bar when the call was "abruptly ended" as one news report described it?  Aren't they all equally culpable for this young man's death?  After all, had the woman been with him all night, he wouldn't have had to call  her?  Right?

All of us in the legal profession struggle all the time with the black eyes dealt us by other colleagues in their quest for the "big hit" in litigation.  In Kentucky we are faced with three attorneys who took fees far in excess of what they were entitled to in Fen-Phen litigation, and who now face paying some of the millions back and maybe losing their licenses.  99% of the lawyers in this country do a good job and never find their way onto the news for this kind of activity, but that blessed 1% keep right on making lawyers look very, very bad.

I hope Josh Hancock's family finds peace some day from his tragic death and its aftermath.  Maybe contributing to the efforts of MADD, or joining the campaign against cell-phone usage while driving might be a good idea.  Or maybe speaking to the dozens of young professional athletes who throw away their careers, if not their lives, every years on booze, drugs, and criminal activity might bring some positive change.  The Cincinnati Bengals a couple hundred miles east on I-64 could use your insight.  Lawsuits, however, and the hurt they visit on other people, some of whom are probably pretty innocent themselves, may bring you money, but peace is most often not something you will find at the bottom of a jury verdict or settlement agreement.

Contemplating the Death Penalty

The lead story on CNN.com much of the afternoon has been an interview with a Tennessee inmate who discusses his fears of his upcoming planned execution by lethal injection, the fourth time he has been scheduled for such procedure.  http://www.cnn.com/2007/US/05/02/lethal.injection/index.html 

I have very mixed feelings about this whole subject.  I do support the death penalty in theory, not so much as a deterrent, an argument in favor in which I have little faith or belief, but based upon the simple notion that I believe a civilized society should have the option to rid itself of certain individuals who meet well-defined standards of egregious conduct.  Some will surely argue that this position is neither "civilized" nor Christian and I will certainly see that they have a point.  It's just how I see it.

The problem with the death penalty is not so much the theory, but the application.  Anecdotal evidence of cases of prosecutorial misconduct and appellate apathy such as the one most graphically set forth in John Grisham's An Innocent Man have disturbed me greatly in having complete faith in the integrity of the criminal justice system.  While I think the prosecutors and appeals court judges in my geographic area do a good job, that belief is based on knowing the individuals and observing their work.  I cannot vouch for other areas of the country.  The Duke lacrosse rape case brings another terrible instance of prosecutorial misconduct to mind - if those young men had not been sons of families with the money to fight, where might they have been when faced with such charges?

Beyond prosecutorial questions is the "cruel and unusual punishment" question.  At the threshold, I do not think this Constitutional provision means the death penalty should not exist, nor that execution has to be painless.  If we assume that the conviction has been properly obtained, then certainly the victims of the convicted murderer were not given the choice of a painless death.  On the other hand, though, execution should not be prolonged or tortuous to the criminal, either.  Cases of electric chair executions taking prolonged or multiple jolts of electricity are what prompted the move to lethal injection in the first place, yet we are now not sure injection is much better.

Current injection protocols in most states involve use of an anesthetic agent, followed by a paralytic, then potassium chloride to stop the heart.  The third drug can cause extreme pain if the subject is not properly anesthetized.  The problem is that many now believe that the amount of anesthesia used is inadequate, and the paralytic prevents any communication, so that the prisoner ls left to suffer in silent pain as his heart stops.  What has recently caught my attention is the statement that most execution protocols have been so little researched that they are less scientifically-based than the protocols used for euthanizing animals.

I'm all in favor of the principle "if something's worth doing, it's worth doing right."  This is clearly applicable in the case of the death penalty.  According to CNN.com, Tennessee's protocols, now being revised, still retained provisions relevant to the electric chair, such as fire extinguishers, even after lethal injection became the chosen method.  This is a bureaucratic failure at its worst and cannot be tolerated.  Each and every state which has the death penalty on its books owes it to itself and its citizens to make a close examination of execution protocols if it intends to continue to provide this level of punishment for egregious crimes.