Torture in America

Yesterday, Judge Ruben Castillo in the Northern District of Illinois issued a shocking opinion that details allegations of tactics employed by the City of Chicago police department that clearly meet the definition of torture, putting our lawyered-up, Bush-era CIA "interrogators" to shame.

Joe Miller loses again.

Here is the order. It rejects everything that Mr. Miller argued in trying to set aside his loss to Alaska Senator Lisa Murkowski. Fans of Bryan Garner will note that all the citations are in footnotes. Presumably Judge Richard Posner will not be happy with this citation style. The Gillette Torvik blog has yet to weigh in on the issue. Probably because arguments over proper citation form are inimical to our duty to make sparks fly.

Suggesting judges should be killed is a bad idea.

Thomas Jefferson once wrote, “The tree of liberty must be refreshed from time to time with the blood of patriots & tyrants. It is its natural manure.” However, suggesting three particular “patriots & tyrants” should be killed, posting their pictures, work addresses, and maps to the addresses on the internet will get you 33 months in prison. That is the lesson we learned from Hal Turner’s sentencing today.

Mr. Turner, the subject of a brief post by Mr. Torvik and occasional informant for the FBI, was annoyed with a unanimous decision made by Seventh Circuit Judges Richard Posner, Frank Easterbrook, and William Bauer last year. The decision upheld a (since-overturned) handgun ban in Chicago and some of its suburbs.

In response to the ruling, Mr. Turner wrote a blog post. In the post, Mr. Turner quoted the same Jefferson quote I mentioned. However, according to an ABA Journal post, Mr. Turner then added: “It is time to replenish the tree! Let me be the first to say this plainly: These judges deserve to be killed. Their blood will replenish the tree of liberty. A small price to pay to assure freedom for millions.” The New York Times reports that Mr. Turner also wrote, “If they are allowed to get away with this by surviving, other judges will act the same way.”

In case people did not get Mr. Turner’s point, he went on to refer to the murder of husband and mother of United States District Court Judge Joan LefKow. Mr. Turner wrote, “Apparently, the 7th U.S. Circuit Court didn't get the hint after those killings,” and, “It appears another lesson is needed.”

Mr. Turner was charged and, after two mistrials, convicted of threatening to assault and murder the three judges with intent to retaliate against them for performing their official duties. At his sentencing, Mr. Turner continued to demonstrate a poor grasp of the concept that one catches more flies with honey than vinegar. North Jersey.com reports that while speaking for almost an hour, Mr. Turner claimed that the judge engaged in “legal skulduggery” over the jury instruction as to what constitutes a threat. Mr. Turner, also called the trial a “three-ring circus.” Then, having sufficiently insulted the person imposing the sentence, he asked for probation. While the prosecution asked for a six-year sentence, Judge Donald E. Walter imposed a 33-month sentence. Mr. Turner, unsurprisingly, plans to appeal.

What do you think Mr. Torvik, is 33 months an appropriate sentence for writing threats on a blog? Does it matter that Mr. Turner’s words went unheeded, or at least unacted on, by every American? How intimidated could the three judges have been if none of them requested security as a result of the threats (and did not even testify at the first of the three trials)?

It seems to me that Mr. Turner should have followed the lesson learned by Hunter S. Thompson when he was threatend with prosecution for suggesting that then Vice-President Bush be stomped to death by a crowd of Marquette University students. Instead of threating to kill a public official, just suggest that they be placed naked in a room with an "angry, horny, acid-crazed elk."

Auburn is in the national title game, therefore we can't have a trial in early January.

As the Wall Street Journal's law blog notes, Birmingham, Alabama attorney Michael Mulvaney brought a successful motion in federal court in the Southern District of Alabama to ensure that a case he was litigating would not be tried around the time of the BCS National Championship game. As the post notes, he included pictures of his children wearing Auburn apparel "for manipulative purposes only." In granting the motion, Judge Kristi DuBose included in her order a picture of her daughter also wearing Auburn apparel. No word as to whether Oregon lawyers have filed similar motions.

A deal on judges means winners and losers

The AP reports that Republicans and Democrats in the Senate have made a deal on judicial nominations, "after a monthslong blockade."  As you note, Judge Susan Nelson in Minnesota is a beneficiary of this deal.  Among the sacrificial lambs, however, appears to be Louis J. Butler, in Wisconsin. 

You may recall that Butler was previously appointed to the Wisconsin Supreme Court but failed to retain the seat in one of the most hotly contested (some might say vicious) judicial campaigns in memory.  His nomination to fill a vacancy in the Western District of Wisconsin angered conservatives, who thought a life-tenure judgeship was too rich a consolation prize for someone who'd been rejected by Wisconsin voters.  Their opposition appears to have won the day. 

Marijuana laws take a hit in Montana.

The war on drugs took an interesting turn in Montana this week. According to the Billings Gazette, members of a jury pool in a Missoula County District Court made it clear they would not convict someone for possessing a small amount of marijuana.

AP: "Random Breath Test Yields 43 Pounds of Ecstasy"

That is a lot of Ecstasy to keep in your breath.

It is about time.

The Senate finally confirmed Susan Nelson's appointment to the federal bench.

Metrodome collapses

Here's the story.

UPDATE:

Video here.

Bill Clinton is back in the White House

You may have heard that President Obama and former President Clinton staged an impromptu press conference today, after they spent some time chatting about Obama's recent tax-cut compromise with Republicans.  In short:  the Clinton approves.

Here are some random musings:

1)  I love this picture -- does Clinton look like a kid in a candy store or what?

2)  I can't help thinking of Clinton as kind of like the Randy Quaid character in the National Lampoon Vacation movies.  Especially "Christmas Vacation" -- where he shows up in the RV, and just won't leave.  As you can see in the next picture, Obama eventually had to leave because he, you know, had "a thing":

3)  Obligatory:  HIDE THE INTERNS!!!!

4)  This little behind-the-scenes article about the press conference is very West-Wingy.

Sex by surprise?

I'll confess I haven't been following the manhunt relating to WikiLeaks founder Julian Assange very closely.  I knew that he was wanted for some kind of sex crime in Sweden. And I noticed that he had been arrested in England. But my interest wasn't really piqued until I noticed the headlines and blurbs that seemed to imply that his alleged crime is "sex by surprise."

Sex by surprise‽  Supposedly, the offense had something to do with a broken condom, which somehow constitutes a sex crime in crazy Sweden.

But apparently not.  According to an op-ed by Jessica Valenti in the Washington Post, at least, this "sex by surprise" thing was made up by Assange's lawyer in an attempt to belittle the seriousness of the charges:

Let's get this out of the way: Sweden does not have a "broken condom" law. WikiLeaks founder Julian Assange was not arrested because his contraception failed mid-coitus. Nor is he charged with "sex by surprise."

* * *

The allegations against Assange are rape, sexual molestation and unlawful coercion. He's accused of pinning one woman's arms and using his body weight to hold her down during one alleged assault, and of raping a woman while she was sleeping. In both cases, according to the allegations, Assange did not use a condom. But the controversy seems to center on the fact that both encounters started off consensually. One of his accusers was quoted by the Guardian newspaper in August as saying, "What started out as voluntary sex subsequently developed into an assault." Whether consent was withdrawn because of the lack of a condom is unclear, but also beside the point. In Sweden, it's a crime to continue to have sex after your partner withdraws consent.

So, thankfully, it appears that "sex by surprise" is not necessarily a crime in Sweden or anywhere else.  Merry Christmas, everyone!   

Perfect spelling not required

According to the Juneau Empire, an Alaska state court has rejected Joe Miller's attempt to require that the only votes for Lisa Murkowski which spelled her name perfectly be counted. One would like to believe that this will end this inane recount. Given that Miller, as reported by the AP, initially claimed that Alaska should not count votes that correctly spelled Senator Murkowski's name but did so last name first, I doubt it will.

Indiana attorneys should not beat people up.

One might think that one of the benefits of going to law school would be that law students learn the law and are thus able to avoid breaking it. Not everyone takes full advantage of that benefit. Take, for example, this former Kokomo, Indiana city attorney.

And then there was one.

As of yesterday, the United States had two statewide elections that had not been resolved: the gubernatorial election in Minnesota and a United States Senate election in Alaska. These elections were similar in some ways. Both involve margins small enough to mandate a recount. Both also involve significant percentages of people voting for a candidate who wasn't on the ballot as a Republican or a Democrat (although, Alaska's third candidate is, in fact, a Republican). Both elections also involve fewer ballot challenges than the margin of victory. Where these elections differ is in how the loser is handling the fact that it appears impossible for them to win.

In Minnesota, Republican Tom Emmer conceded defeat today. One reason that this concession occurred today is that, yesterday, the Minnesota Supreme Court issued its written opinion explaining why Mr. Emmer's theory of how one counts voters is, to put it mildly, wrong. Voting precincts do not need to count the signatures on the voting registry to determine if the number of votes equals the number of voters. Precincts can simply compare voting receipts to ballots cast.

The other reason Mr. Emmer conceded is that he couldn't come up with 8,700 challenged ballots for the canvassing board to review. After the canvassing board (which includes two sitting Minnesota Supreme Court justices) chastised Mr. Emmer's legal team (which includes a former Minnesota Supreme Court chief justice) about making frivolous challenges, Mr. Emmer withdrew almost all his challenges. Faced with a mathematical impossibility, Mr. Emmer conceded.

That is not how they do things in Alaska. Up north, Republican Joe Miller is continuing his fight in the election he lost to Lisa Murkowski, the incumbent Republican Senator he beat in the primary. After losing the primary, Senator Murkowski decided to run a write-in campaign and became the second person in 60 years to win a write-in campaign for the Senate.

Mr. Miller's strategy for the recount, one that seems perfectly reasonable given Senator Murkowski's last name, was that only ballots that correctly spelled her name should count. However, as the Los Angeles times notes, this strategy is failing because there were fewer misspellings than Senator Murkowski's margin of victory. Some people would find this an insurmountable problem. Those people are not Joe Miller. As the article notes, part of Mr. Miller's argument is that Ms. Murkowski had an advantage because votes for were counted by hand while votes for Mr. Miller were counted by machine. This is the first time I have ever heard that write-in candidates actually have an advantage in elections. It will be interesting to see if that sort of counter intuitive argument can carry the day.

Probably a mistake?

As part three of our ongoing series on phone calls made by wives of Supreme Court justices, Ginni Thomas has decided that calling Anita Hill was "probably" a mistake. Sadly, the article doesn't mention when this particular insight came to Ms. Thomas.

"I have a life to live."

One of my most vivid memories of our contracts class was our professor joking on one occasion that whenever he signed a car rental agreement he wondered what he was agreeing to in the car rental company's contract. He also joked that he envisioned headlines like "Contracts Professor Doesn't Read Contract" if it turned out that the car rental contract contained some outlandish provision.

He is not alone in not reading the contracts he signs. Josh Blackman reports that two of the country's most famous appellate court judges, Frank Easterbrook and Richard Posner, have fessed up to not reading contracts that they have signed. Judge Easterbrook's quote is particularly memorable. In discussing the RESPA documents he signed as part of his recent home purchase, Judge Easterbrook said "I didn't read one word. I have a life to live." Having recently bored myself silly on these documents as part of refinancing my home, I wish he would have said this a month ago so that I would have had some persuasive authority to rely on when I tried to get out of reading them.

"And, now because he burned his junk, a faceless bureaucrat can see yours."

A case against the new airport security regime.

I have to admit that I don't have a strong emotional reaction against the body scanners, at least not from the "bureaucrats seeing my junk" perspective.  (The thought of bureaucrats seeing my junk just makes me feel sorry for them.)  Also, the reports of the alternative "grope downs" just remind me of the airport security methods I encountered in Amsterdam.  I survived.  Kind of fun, really.

But it does seem highly unlikely that any of this actually makes us any safer.  As Jeffrey Goldberg reports, this kind of airport security amounts to little more than a sham -- just "security theater" designed to make us feel safer while catching only the stupidest of terrorists.  On that basis alone, I oppose increasingly invasive security measures.

Mixed messages

Not too long ago, I noted here the backlash against "Four Loko" -- a malt beverage containing a lot of caffeine.  I lampooned the idea that this combination is particularly pernicious.  But today the Food and Drug Administration of the United States federal government saw fit to intervene in this space, basically banning the malt-beverage-energy-drink category.

As I read through the story of this administrative action in the New York Times online, I couldn't help thinking back to another story I read in the New York Times recently:  a story about coffee-based cocktails.  Although the author of that piece noted the controversy surrounding Four Loko (et al.), there was no sense of the moral panic that for some reason surrounds the spiked energy drinks. 

How to explain this discrepancy?  I'm sticking with that old standby:  hysteria.

"Driver in fatal crash sues victim's parents"

That's the headline of an article in today's Chicago Sun-Times.  I think it's a bit overwrought. 

Here's what happened.  A 14-year-old boy who was riding his bike was struck and killed by a car.  The driver of the car was charged with, and convicted of, manslaughter because he was found to be driving recklessly.  He was sentenced to ten years in prison.

In addition to the criminal case, the parents of the boy sued the driver seeking civil damages for negligence.  In a counter-claim, the driver is alleging that he is not liable because of the parents' contributory negligence--specifically, allowing their son to ride his bike without a helmet on. 

In response to the counter-claim, the mother is quoted as saying, "It drags the pain on.  It's a constant reminder.  Enough is enough.  Can you just leave us alone and serve your time?" 

I sympathize with the mother over her son's very sad death.  But it was she and her husband -- not the driver -- who filed the civil lawsuit.  They cannot get their son back in that lawsuit; all they can get is money.  And supposedly they are seeking only $15,000.  If closure is really what they are after, it can be easily had:  just drop the lawsuit.

An unusual reason to get out of jury duty? Maybe not.

One of the more difficult things for a new lawyer to figure out is jury selection (or at least it was for me). I think most people, i.e., non-lawyers, are aware that certain kinds of bias can automatically get you out of jury duty. This is called a "strike for cause." The way courts and lawyers find out about juror bias is through a process called voir dire. There is also a procedure called a peremptory challenge, but the peremptory challenge isn't relevant to this post.

Cartoonist John Backderf describes his recent experience being struck from a jury pool here (you have to scroll down to the November 1, entry as his blog doesn't seem to allow links to entries by date). According to Mr. Backderf, the questions he was asked and his responses went like this:

The judge started off with questions for each juror. First question: do you know anyone who has been convicted of a crime? Almost ALL the jurors and alternates raised their hands. So he goes down the line for details.

. . .

Then he gets to me.

"I had a friend who killed 17 people."

Stunned silence. All eyes turn. Asst. prosecutor's head snaps up from his notes. Judge stares at me open-mouthed. I tell them who. "Wow," says the judge.

Further questions. What do you do for a living? Your spouse? Do you have strong opinions about the police? When the queries are finished, here is my summary:

Once drew a cartoon of the county prosecutor in a diaper? check.

Married to a local newspaper columnist? check.

Anti-authoritarian paranoid and conspiracy theorist? check.

Gave Jeffrey Dahmer rides home from school? check.

Thank you, Mr. Backderf. You are dismissed

Anyway, Mr Backderf, and others who have mentioned the case, surmise that the reason Mr. Backderf was dismissed from jury duty was because of his friendship with infamous serial killer Jeffrey Dahmer. I am not sure this is correct. Mr. Backderf is in the jury pool for a criminal matter. He doesn't say, and perhaps doesn't know, what type of crime is being tried. He makes a reference to the "Common Pleas Court" which I interpret to mean the Cuyahoga Court of Common Pleas. So it appears the defendant has been charged with a felony.

In any event, given that he tells the court that he once drew a cartoon of county prosecutor wearing a diaper, and that he admits to being anti-authoritarian and a conspiracy theorist, it seems more likely to me that the answers to those two questions are what got Mr. Backderf struck from the jury. It can't be that being friends in high school with someone who later became a serial killer gets one an automatic out from jury duty? It seems more likely that the judge thought the cartoon and difficulties with authority would be enough to strike a member of the jury pool for cause in a criminal matter.

What do you think Mr. Torvik? If you were a judge would you remove friends of serial killers for cause from your jury pools?

Inflammatory stupidity is only a privilege on one's own time.

Michigan Attorney General Mike Cox has fired Andrew Shirvell. A discussion of the very odd blog Mr. Shirvell created is here. As Mr. Torvik noted at the time Mr. Shirvell's antics came to light, Mr. Shirvell couldn't be fired for what he wrote on his blog because that would violate the First Amendment. However, it would appear that Mr. Shirvell was writing his blog when he should have been working for the taxpayers of Michigan. Thus, Mr. Shirvell was not fired for something he said, he was fired for when he said it. As Nigel Tufnel once said, there is a fine line between clever and stupid.

Effective Advocacy Doesn't Require You to be a Jackass.

Jason Brown recently wrote a post for JDs Rising, a blog for new lawyers in Minnesota, setting out why it pays to be courteous. While I don't agree with his contention that being a rebel or an outsider is synonymous with being a jerk, I do agree that there is no reason to be unpleasant to opposing counsel, their staff, or court staff. The last of these three categories cannot be stressed enough. There is no upside to being unpleasant to the court's support staff. Sometimes, that will get you sanctioned.

Judicial Elections are Always a Bad Idea.

Back in August, Mr. Torvik predicted that the three Iowa Supreme Court justices facing retention election would win their respective elections. These retention elections were a big deal because of the Iowa Supreme Court's 7-0 decision finding a right to same sex marriage in the Iowa Constitution. As an aside, pages 17 and 18 of that decision give a brief history of civil rights in Iowa that should make every Iowan, or former Iowan, proud.

In any event, out-of-state special interest groups, such as the National Organization for Marriage, combined with failed Iowa gubernatorial candidate Bob Vander Plaats raised about $700,000 to support a campaign to convince Iowans that the three justices standing for retention election this year should lose. It worked. All three justices lost their retention bid. This is remarkable given that no judge had lost a retention bid in the 48 years that Iowa has had that system.

What The Country Needs is 5,500 More Members of Congress.

Mr. Torvik asks what I think increasing the number of congressional districts from 435 to 6000. I think that is an excellent idea in the sense that more representatives means more direct democracy. That said, I don't think an increase in the number of representatives would have the affect Mr. Magliocca discusses in his post. He writes that increasing the size of the House of Representatives by doubling it would:

This would accomplish the goals of both campaign finance reformers and libertarians. First, the cost of each campaign would go down because House districts would be smaller. Second, special interest groups would find it much more expensive to wield clout within a legislature. They would have to donate twice as much, in effect, even though the demand for money from candidates would be lower. Third, the influence of any single member would be reduced in a larger legislature, due to the higher transaction costs for public action, and would thus make it harder for a member to make a credible promise of a benefit to a donor.

The problem is that his theory is I don't have any idea why it would cost twice as much to wield clout with Congress. If the cost of the elections goes down, the money the needed to fund the election goes down and the amount needed to "wield clout" with a particular candidate goes down. One might respond that the number of congresspeople is increasing so the amount a special interest needs to spend will increase. However, as the supply of congresspeople goes up, one assumes that the price for a congressperson will go down because the demand for any particular congressperson goes down. One might just as easily say that there will be no change in the price for the special interest. As for his suggestion that it would be harder for a member to make a credible promise to the donor, I am under the impression that often the donor is only seeking a vote. The congressperson would still be able to make that promise.

Finally, as for thirty-thousand.org's suggestion that we create four new federal cities to house the additional 5,500 members of congress, I don't think much of that idea. It seems to me that the representatives should just adopt the suggestion former Wisconsin governor Lee Dreyfus made over 30 years ago: they should legislate from their home district. With modern technology, there isn't a need to force all members of congress to one, or four, cities.

We don't want judges to be judicial activists until we want them to be activist judges.

I have been pondering a lawsuit, and the ensuing outrage, that our friend over at Minnesota Environmental Lawyer brought to my attention.

As initially reported in the New York Times, a trial court judge recently ruled that a four-year-old girl accused of running down an elderly woman while racing a bicycle with training wheels on a Manhattan sidewalk two years ago can be sued for negligence.

As Professor Weissbrodt would say, the procedural posture of the issue for decision was that the court was ruling on a motion to dismiss. The undisputed facts are as follows. A four-year-old girl and a five-year-old boy were racing their bicycles, under the supervision of their mother, on the sidewalk of a building on in Manhattan. At some point in the race, they struck an 87-year-old woman, who was walking in front of the building and, according to the complaint, was “seriously and severely injured,” suffering a hip fracture that required surgery. She died three months later of unrelated causes. As an aside, it has been my experiences that once an elderly person breaks hip, things tend to deteriorate rapidly.

In any event, the woman’s estate sued the children and their mothers, claiming they had acted negligently during the accident. The girl’s lawyer moved to dismiss, the boy’s lawyer did not. The girl’s lawyer apparently made three arguments in support of the motion: (1) the girl was not engaged in adult activity at the time of the accident; (2) the girl was under the supervision of her mother at the time; and (3) that the girl was too young to be held liable for negligence. The Court denied the motion. I assume the court did so because New York Civil Practice Law and Rules only require that, “[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.” CPLR § 3013. And that, “[e]very pleading shall consist of plain and concise statements in consecutively numbered paragraphs.” CPLR § 3014; see also Colon v. Bernabe, 2007 U.S. Dist LEXIS 51981, 2007 WL 2068093 [SD N.Y.2007] (finding that “[b]oth the C.P.L.R. and the Federal Rules require only a short and plain statement of the claim showing that the pleader is entitled to relief'); Brown v. Luk, Inc., 1996 U.S. Dist LEXIS 7173, *14, 1996 WL 280831 [ND N.Y.1996] (finding that “the pleading requirements of New York's Civil Practice Law and Rules ... are more lenient than the Federal Rules of Civil Procedure”).

As to the three specific arguments, the Times article doesn’t report as to how the first one was handled and I am unable to find a copy of the order. With respect to the second argument, the court said that a “parent’s presence alone does not give a reasonable child carte blanche to engage in risky behavior such as running across a street.” Moreover, any “reasonably prudent child,” who presumably has been told to look both ways before crossing a street, should know that dashing out without looking is dangerous, with or without a parent there. The crucial factor is whether the parent encourages the risky behavior; if so, the child should not be held accountable. Predictably, given the posture of the motion, there was nothing to suggest that the girl’s mother “had any active role in the alleged incident, only that the mother was ‘supervising,’ a term that is too vague to hold meaning here.” he wrote. Moreover, there was no evidence demonstrating the girl’s “lack of intelligence or maturity” or anything to “indicate that another child of similar age and capacity under the circumstances could not have reasonably appreciated the danger of riding a bicycle into an elderly woman.” Finally, as to the third argument, the court noted that in New York there is a presumption that a child under 4 is too young to be sued. Since the girl was almost five when the accident occurred, the Court noted there was no “bright-line rule” preventing the suit and declined to extend the existing precedent to children past the age of four.

The court’s ruling has caused several people’s head to explode. The New York Daily News said that the judge on the case was an “idiot”, whose ruling was “nutty”, and that he “needs a set of training wheels on his brain.” Jeff Vrabel, a columnist with the Gatehouse News Service, sarcastically says that the judge exercised “the stout-hearted, flame-broiled foresight,” in denying the motion.

Finally, the folks at the lawyersandsettlements.com, whom I presume are lawyers, really do not like the ruling calling it “silly” and implies that the judge is insane by referring to a “brief moment of sanity." The post goes on to offer three reasons why the suit should have been dismissed: (1) a four-year-old “may ‘get’—to some degree—that barreling into someone on a bike may not be a good thing; in fact, may cause harm—but they don’t understand the full extent of their actions and the subsequent harm;” (2) the parents are responsible, not the child; and, this is my favorite, “It’s 2010, not 1928.”

With regard to the third reason, the author writes:

My guess is that since a woman’s life expectancy in the 1920’s was about 56.4 years, a four-year-old would’ve already lived about seven percent of her little life and, therefore, must have been on a some serious maturity trajectory—vs. today, where women have a life expectancy of about 80 years (give or take) and a four-year-old would have logged only five percent of her years thus far. Let’s also add in things like the fact that most women were married off and managing their very own broods by the time they entered their 20’s in the ’20’s. Shall I even bring up child labor laws (or the non-existence of them) in the 1920’s?

Setting aside that the author does not understand that life expectancy was lower in 1928 because of infant mortality not because people who survived infancy died younger, can a lawyer seriously believe that an apparently binding precedent does not apply because a four-year-old in the 1920s was closer to death than a four-year-old in 2010. Does that make any sense?

People make a big deal about judges being “activist” and ignoring precedent. We are told they are bad judges. Indeed, at every Supreme Court confirmation hearing I can recall, the nominee was asked about the importance of following precedent. So what happened in this case? A judge declined to extend a rule of law beyond where it was set eighty years ago (and apparently left undisturbed by the New York legislature during that time), followed the precedent, and got excoriated for it. Sometimes one can’t win for losing.

Yikes

Gallup speculates that there may be an unprecedented Republican rout in the House of Representatives:

[T]his year's 15-point gap in favor of the Republican candidates among likely voters is unprecedented in Gallup polling and could result in the largest Republican margin in House voting in several generations. This means that seat projections have moved into uncharted territory, in which past relationships between the national two-party vote and the number of seats won may not be maintained.

Larry Tribe is the smartest man alive

When Justice Souter retired, Larry Tribe, the famous Harvard law professor, wrote a letter to President Obama (his former student) urging him to nominate Elena Kagan.  The letter has now been leaked to Ed Whelan.  It is a very interesting letter.  One aspect that struck me was Tribe's apparent confidence that he could easily judge the relative intelligence of the front-runners. 

• On Sonia Sotomayor, the eventual nominee:  "Bluntly put, she's not as smart as she thinks she is."
• On Judge Diane Wood:  "More powerful intellectually than Sonia Sotomayor or any of the others mentioned as plausible prospects at the moment with the sole exception of Kagan, who is even smarter."

I guess when you're a professor at Harvard law school you get pretty confident in your ability to separate the brilliant from the merely very smart.  But, boy, what an ego!

Prof. Paulsen on the "separation of church and state"

Michael Stokes Paulsen, our old civil procedure professor, has some thoughts on Christine O'Donnell's comments about the separation of church and state, including:

Ms. O’Donnell’s pithy challenge—“Where in the Constitution is the separation of church and state?”—is actually an excellent shorthand critique of those (like Mr. Coons, perhaps?) who would sloppily translate the First Amendment’s protections of religious liberty into incoherent hostility toward religion. And that is no laughing matter.

Caffeine + Alcohol = MADNESS!

Powers that be are moving to ban beverages like "Four Loko" that combine the alcoholic content of wine with the caffeine content of coffee.  The problem, supposedly, is that the caffeine interferes with that well-known natural effect of alcohol on young adults:  sleepiness.  Worse, the beverages may be "explicitly designed to attract under-age drinkers," what with their "colorful packaging and flavors like watermelon, blue raspberry and lemon-lime."   Consider the case of one student at Ramapo College, who was hospitalized after "drinking three cans of Four Loko and several shots of tequila in just over an hour."  Presumably, were it not for the caffeine in those three cans of Four Loko, the helpless student would simply have fallen asleep before he had the chance to drink those "several shots of Tequila."  These beverages are a menace.

I miss "Crossfire"

Like most people, I've been thinking about Juan Williams.

Perhaps unlike most people, when I think of Juan Williams I think of "Crossfire" (the old CNN debate show).  When I was in high school, I watched that show every day.  I loved watching the sinister Pat Buchanan go up against the earnest Michael Kinsley.  It was in his role as Michael Kinsley's understudy that I first became aware of Juan Williams.  Let's put it this way:  Juan Williams was no Michael Kinsley.

I stopped watching "Crossfire" in about 1995, around the time Buchanan rejoined his Pitchfork Brigade for another run at the presidency.  The show started to change.  Buchanan and Kinsley were gone, and so was the sober black background.  A studio audience was brought in.  Tucker Carlson.  Paul Begala.

This brings me to another man in the news:  Jon Stewart.  Famously, he killed "Crossfire."  He indicted the show for "hurting America" and accused its hosts (Carlson and Begala) of "partisan hackery."  In my view, the charges were shrill and trumped up.  But apparently they touched a nerve.  Just a couple months later, "Crossfire" was cancelled.

What are we left with?  Bill O'Reilly, Glenn Beck; Keith Olbermann, Rachel Maddow.  I am pretty ignorant about these shows.  I just don't watch much cable news.  (It always seems to be focussed on some runaway bride or another.  I don't understand the appeal.)  But it does seem like there's a dearth of true left vs. right debate on the airwaves.  I know O'Reilly has people (like Juan Williams!) on to debate, and I imagine the others do too.  But these are more like ambushes than debates.

So, I miss "Crossfire."  Maybe it's a dead format that wouldn't work today.  Maybe the culture has become too fragmented, too partisan, too cynical, and too idealogical.  I dunno.  I just know I'd watch.  (On YouTube, at least.)

Extreme skepticism

Yesterday a man named Tim Profitt forcefully pressed his foot down on the back, shoulder, or neck of a woman named Lauren Valle, who was already restrained, face-down, by another man.  Here's the video.



Ms. Valle is a MoveOn.org volunteer who was dressed up in Rand Paul gear and a blonde wig outside the venue for a debate between Rand Paul and his opponent, Jack Conway.  Apparently, she intended to confront Paul and present him with an "award" for being friendly to corporations.  When she attempted to do so, the events depicted in the video transpired.

Mr. Profitt was a volunteer with the Rand campaign, but the campaign has now "disassociated itself" with him.  He faces fourth-degree assault charges.  He claims we was just trying to defend Mr. Paul from an unknown assailant.

Jack Conway condemned the men involved in the incident in a strangely macho way:  "physical violence by a man against a woman must never be tolerated."  (Man-on-man violence is apparently tolerable, at least in some circumstances.  And woman-on-woman violence?  That's just hot.  Rrrr-owww!)

Mr. Profitt did not come forward as the "stomper" until late in the day today.  Before he came forward, Ann Alhouse speculated that the entire incident might have been staged:

Are the men in the T-shirts also from Moveon.org? Who were they? There were no arrests and though there was a crowd, no one bothered to have detained these men. Did they just melt back into the night? It's very convenient that these bad actors were wearing labels identifying them.

Hundreds of comments ensued.  Most of them bought into the conspiracy theory that the entire incident was staged.  My own interpretation of the video--and this was before Mr. Proffitt came forward--made me think that this was extremely unlikely.  The men who subdued Ms. Valle did not appear to be acting to me.  Mr. Proffitt's attack seemed so believably impulsive.  And the reaction of the others around--e.g., "no no no no no no no!" when Mr. Proffitt did his thing--seemed authentic.

Moreover, there were easy answers to all of Althouse's questions.  There were no arrests because there was a crowd.  Yes, the men melted back into the night--or at least melted back into the embrace of their compatriots.  And it's not convenient that the men were wearing Rand Paul insignia; it's exactly what you would expect political activists to be wearing at a debate.  

That so many of Althouse's commenters bought into the conspiracy theory is depressing to me.  It's one thing to be skeptical.  I am an avowed skeptic.  But in order to a functioning skeptic you have to be skeptical of your own skepticism.  You have to ask yourself, "Why am I inclined to distrust my own eyes?" If you don't cross-examine yourself with your own biases, you'll become either a cynic or an ideologue.  That's not good.

But this is the depressing part.  It's hard to find evidence of anyone on the Internet who isn't either an ideologue or a cynic.

UPDATE:

More video!

This shows that Ms. Valle rushed Rand Paul's car and tried to shove something at him through his open window. She is pulled away. Then, at about the :55 second mark, she comes around from behind the car to make a second run at the candidate. Presumably this is when she was tackled and treated roughly.

Update on Andrew Shirvell

Chris Armstrong, the object of Michigan Asst. Attorney General Andrew Shirvell's fascination, has withdrawn his petition for a protective order against Shirvell.  According to Armstrong's attorney, "The petition for a personal protection order was dismissed by Chris Armstrong because he received assurance that he will no longer be contacted by Andrew Shirvell."

Is the House of Representatives too small?

This is the question posed today by Gerard N. Magliocca at Balkinization. His primary argument is that increasing the size of the House is the only practical way to limit the influence of money in politics:

Suppose you doubled the size of the House of Representatives, which only requires a statute. This would accomplish the goals of both campaign finance reformers and libertarians. First, the cost of each campaign would go down because House districts would be smaller. Second, special interest groups would find it much more expensive to wield clout within a legislature. They would have to donate twice as much, in effect, even though the demand for money from candidates would be lower. Third, the influence of any single member would be reduced in a larger legislature, due to the higher transaction costs for public action, and would thus make it harder for a member to make a credible promise of a benefit to a donor.

The idea of regulating the House’s person-per-representative ratio has an interesting history. Such a proposal, in fact, was originally the very first article of the Bill of Rights that came out of the First Congress. The purpose of the proposal was to ensure a minimum representation for the common people in the new federal government. As passed by the House in 1789, the proposed amendment read:

"There is widespread recognition, across the political and ideological spectrum, that the United States is over-criminalized, and that over-criminalization poses serious threats to our liberties, our values, and our prosperity. With recognition and examination of this problem, it is now time to move to the next level – developing solutions."

That's from the description of a symposium held last week in D.C. called "Overcriminalization 2.0."  This alleged consensus is news to me, but I guess I'm part of it.

By the way, I'm guessing that "Overcriminalization 1.0" was a bit of a failure.

The Grudge Match.

So now that Wisconsin has won the Hartland Trophy, do we reverse the names of the blog until next year when Iowa avenges the loss inflicted on them by that portly purveyor of perfidy, Brett Bielma?

The wet side of the moon

It's pretty much a full moon tonight.  And the moon has been in the news.  According to NASA, the moon is wetter than the Sahara desert. According to my independent study, the moon is also drier than the Pacific ocean.   So, you know, somewhere in between there.

A modest proposal to end the funding crisis for public defenders

Mr. Gillette has convincingly established that Minnesota's system of public defense for indigents is in crisis.  He points out that neither candidate for governor has so much as acknowledged the problem, much less proposed a solution.  Notably, however, Mr. Gillette does not propose a solution either.  Times are hard.  Money is scarce.  Simply hiring more public defenders is not possible.  What can be done?

I have a solution, and it is virtually free:  fewer crimes.  I don't mean that people should commit fewer crimes (although that would be nice).  I mean that there should be fewer crimes.  With fewer crimes, there will naturally be fewer criminals.  And with fewer criminals, the crisis in public defense will disappear.

There are a lot of stupid crimes on the books.  But I've got a couple of categories in mind.  Let's start with drug crimes.  In particular, the simple possession of drugs--any drug--should be decriminalized, subject only to civil forfeiture of the contraband.  We can wait to decriminalize the production and distribution of drugs, and can pick and choose which drugs we want to do that for.  But for now, we should be arresting and prosecuting only drug dealers--not drug users.  Frankly, I think local, county, and state police authorities should entirely cede the field of drug enforcement to the federal government.  That way, only major operations are worth going after.

(As a side note, here's a depressing factoid about the international drug war.  Last year, 6,600 people died from drug-related violence in Mexico.  For comparison, there were 4,674 civilian deaths from violence in Iraq last year, and the US has lost just 4,500 soldiers in the entire Iraq war.   "The drug war" is not a metaphor.)

Prostitution is another obvious candidate for decriminalization.  From my brief experience as a city prosecutor in Minneapolis, I can confidently say that going after hookers and johns is about the biggest waste of government resources that one could possibly imagine.  Another benefit of decriminalizing both drugs and prostitution is that we'd likely have at least one more federal judge going to work on Monday.

Finally, and most controversially, here's one other idea for a class of crimes we should consider getting rid of:  drunk driving.

More on the Thomas/Hill voicemail.

As you note, Mr. Torvik, the story of Ginni Thomas calling Anita Hill and asking her to apologize for her testimony at Justice Thomas's confirmation hearing is strange. However, it seems to me that Ms. Hill's behavior is a lot less strange.

As memory serves, and Oprah Magazine confirms, Ms. Hill received death threats as a result of her testimony. I suspect that she also received threats of a less drastic nature. One can imagine that, at the time of her testimony, she was told to forward these threats to the FBI. So, twenty-years later, she receives a call from a woman claiming to be Ginni Thomas and asking Ms. Hill to apologize and provide "some full explanation of why you did what you did with my husband.”

Ms. Hill, and I think understandably, found this odd. After reflecting on it, she provided the voicemail to her employer's security department and instructed them to contact the FBI perhaps per a protocol from the days when she was receiving threats. That doesn't seem strange to me.

What does seem strange is how this came to the attention of the New York Times. The article doesn't say. If Ms. Hill brought it to their attention, that would be very strange. But, perhaps it came from some other, less strange, source.

I agree with David Bernstein over at the Volokh Conspiracy, that if Ginni Thomas truly was seeking an apology she should have chosen a better means of communicating that other than a voicemail. That part of the story is very strange.

This renewed interest in the Hill/Thomas controversy doesn't seemed to have done much for Ms. Hill, Justice Thomas, or Ms. Thomas. On the other hand, it has arguably worked out well for other people, and not just bloggers. Lillian McEwen, a woman who dated, and apparently worked with, Justice Thomas in the 1980s, is looking for a publisher for her memoir. Ms. McEwen claims that Justice Thomas was "obsessed" with porn during the time they dated and worked together. This time period coincides with the period when Ms. Hill worked with Justice Thomas. She, as the links indicate, has gotten some free press about her proposed memoir. I suspect a publishing deal will not be far behind.

If one is inclined to believe Ms. Hill, then Ms McEwen's revelations, are more support for Ms. Hill's testimony. Although, I suppose it is support that comes is 19 years late. If one is inclined to believe Justice Thomas, than Ms. McEwen's story is suspect because it comes after such a long delay and is, with all due respect to Ms. McEwen, the only thing that would make her memoir interesting to a publisher.

Given that the voicemail and Ms. McEwen's allegations really just give us an opportunity to relive the days when the Senate testimony took about things like pubic hair on Coke cans and Long Dong Silver, I would have to say that the voicemail has had the opposite of its intended effect.

The Tipping Point: Are We There Yet?

MinnPost.com has two articles about the state of affairs for Minnesota's public defenders. The articles paint a bleak picture. Judge Sharon Hall is quoted as saying that Minnesota courts are "fast becoming the courts of McJustice."

According to MinnPost, Minnesota budgetary woes have led to cutting the number of public defenders. The result is that remaining public defenders now carry twice the caseload recommended by the American Bar Association.

The result of this shortage is twofold. One result is fairly obvious, the other strikes me as very weird. I will start with the weird one.

"[O]ur jobs as political appointees is to protect the president."

That wasn't my understanding.

Justice Thomas's wife leaves Anita Hill a voice mail asking for an apology ...

and Anita Hill calls the police!

These are very strange people.

You're telling me that's in the first amendment?

About a month ago, you posted on the question of whether legislators should consider whether the bills are constitutional before passing them. Your question was prompted by Dalia Lithwick's reflection that the constitutional views of Christine O'Donnel, the Republican candidate Delaware's open United States Senate seat, were fascinating.

Professor Lester Hunt posted on his blog about Ms. Lithwick's thoughts and suggested that "When . . .Ms. O'Donnell talk[s] about 'the Constitution,' they often don't mean the literal word of the law as contained in that piece of parchment."

Professor Hunt apparently hit the nail on the head. As CBS reports, this morning at a debate with Chris Coons, her Democratic opponent, Ms.O'Donnell today challenged him on his statement that the Constitution disallowed the integration of religion into the federal government, asking, "Where in the Constitution is the separation of church and state?"

Unfortunately for Ms. O'Donnell, the debate was held at the Widener School of Law, and her question reportedly "prompted laughs from the studio audience."

The exchange took place when Mr. Coons said he considered intelligent design a religious doctrine that should not be taught in public schools. Mr. Coons said that the First Amendment explicitly calls for the separation of church and state.

Ms. O'Donnell's response to this statement with incredulity. She said "Let me just clarify: You're telling me that the separation of church and state is found in the first amendment?"

Mr. Coons responded by saying "Government shall make no establishment of religion." A slight mangling of the amendment as it says "Congress shall make no law respecting an establishment of religion. " However, I think he got the gist of it correct.

"That's in the First Amendment...?" O'Donnell responded.

The worst part of it is that earlier in the debate, Ms. O'Donnell accused Mr. Coons of constitutional ignorance by telling him "perhaps they didn't teach you Constitutional law at Yale Divinity School."

"Clay ran through holes that looked as if they had been forged by glaciers."

Pete Thamel reports on the University of Wisconsin football team's thrilling victory over The Ohio State University last night.  Next up for the Badgers is a Gillette-Torvik grudge match:  Iowa, with the Heartland Trophy on the line.

But beating #1-ranked Ohio State wasn't even the best news out of Madison yesterday.  At long last, college basketball season has begun.

Disturbing trend: the letter "K"

I can't help noticing that most of folks we've been discussing over the past month have names that start with the letter "K":

1)  Kenneth Kratz -- the "sexting DA";

2)  Steven Koukios -- the lawyer who loved too much;

3)  Chris Kokenis -- the accused tax cheat who kept mum about his "good faith beliefs"; and

4)  Steven Kutzner -- the man who got busted for downloading "Simpsons" porn.

Coincidence?  Hard to believe.  I think it has something -- something -- to do with this.

Man pleads guilty to possession of obscene "Simpsons" porn. Why?

As reported by The Onion's AV Club:

A former middle school teacher in Idaho is facing up to 10 years in prison for downloading Simpsons porn—that is, pornographic cartoons depicting child characters from The Simpsons engaged in sexual acts. After a search warrant led to the discovery of more than 70 such images on his computer, 33-year-old Steven Kutzner immediately resigned and pled guilty at a subsequent hearing.

The prosecution raises serious constitutional issues.  The Supreme Court has held that "virtual child pornography"--e.g., cartoon depiction of child-characters having sex--is protected by the First Amendment because, unlike real child pornography, it doesn't require the actual abuse of actual children to be created.  See Free Speech Coalition v. Ashcroft.  Congress responded by narrowing the statute somewhat.  Now it is a felony to possess:

A rant

On Slate, Dahlia Lithwick reviews Justice Breyer's new book, Active Liberty Making Our Democracy Work.  I found it to be a frustrating review, mainly because Lithwick advances a thesis--that Breyer and Scalia are more similar than you might imagine--that she actively contradicts.  There is also some sloppy, hard-to-understand writing.  The version of the article I read contained two glaring typos (since fixed), making me wonder if I was reading a blog post rather than a published article.  (Fyi, typos are perfectly acceptable in blog posts.)  The article also contains this indecipherable paragraph:

Big money lost by Menards

I recently came across the very interesting case of Sands v. Menard, Inc., which was decided by the Wisconsin Supreme Court in July.  It raises a number of interesting points, and one basic one:  if an in-house lawyer—particularly a corporation’s General Counsel—is fired for a discriminatory reason, can the court order reinstatement as a remedy, thereby forcing the corporation into an attorney-client relationship with an attorney not of its choosing?  In its typical 4-3 split, the Wisconsin Supreme Court said no.

'“I gave up my rental thinking I would have a house,” said Ms. Ducksworth, a 28-year-old catering assistant. “Now I’m sharing a room with my son. What the hell is up with that?”'

The New York Times reports on the latest housing crisis:  the lack of foreclosures.

Justice Alito is a warrior for justice

Some purple prose from CBS Supreme Court reporter Jan Crawford Greenburg describing Justice Alito at oral argument:

He's like a one-justice Delta Force: He's so quiet and low-key while drawing in the lawyers with his questions that he manages to plant several bombs before they even realize he's on the attack.

Then BOOM!

Guns, drugs, and strippers: what could possibly go wrong with that combination?

Last month, Slate.com ran an article about how the number of vacant judgeships on the federal bench was creating a crisis. As an aside, the Slate article missed the real crisis -- that you and I are not on the federal bench. The crisis Slate describes just got a little worse because Georgia lost a judge. As reported by the AP, Senior Judge Jack T. Camp, a 67-year-old who ought to know better, is in a lot of trouble because his adventures with cocaine, guns, and a stripper. Can we agree to call this particular combination of illegal activities a Camp-trick rather than a hat-trick?

Trade Undress

One kind of trademark is "trade dress," which encompasses the design and appearance of a product and its packaging.  Think of the distinctive shape of a Coca-Cola bottle.  On Friday, the Federal Circuit Court of Appeals took up of the issue of whether the "cuffs & collar" uniform of the Chippendales exotic dancers is "inherently distinctive" trade dress under federal law.  It is not.  Some highlights:

The applicant, Chippendales, is in the business of providing adult entertainment services for women. It opened its first strip club in Los Angeles in 1978. In 1979, Chippendales performers began wearing an abbreviated tuxedo—wrist cuffs and a bowtie collar without a shirt—as part of their act. This costume, referred to as the “Cuffs & Collar,” was featured prominently in Chippendales’ advertising and performances over the past several decades. It is set forth below:

I know what you're thinking:  did Chippendales steal Bart Torvik's image for that picture?  This occurred to me as well.  I have no proof and, anyhow, I'm flattered.

Back to the case.  The court found "the Cuffs & Collar mark not inherently distinctive because of the existence of the pervasive Playboy mark, which includes the cuffs and collar together with bunny ears."  Playboy first registered its version of the Cuffs & Collar look in 1964.  Here's a more recent variation:

Pro Boner Publico

Last year, Chicago attorney Steven Koukios was arrested.  As the Chicago Tribune puts it, he "was taken into custody after arriving at a Chicago apartment in April 2009 just moments after police had arrested Shannon Rosillo, 33, for soliciting an undercover police officer. Authorities charged Rosillo with prostitution and Koukios with visiting a 'house of ill fame.'"

As he sat in the back of the squad car with Ms. Rosillo, Koukios stepped up and attempted to make the best of a bad situation:  he offered to represent her free of charge.  And he kept his word.  He appeared in court on Rosillo's behalf, and negotiated a plea agreement for her.  There was just one problem:  he never discussed his potential conflict of interest in the case.  This got him in trouble when, later on the same day that he appeared on Rosillo's behalf he appeared--before the very same judge--on his own behalf to deal with the "house of ill fame" charge against him.

Koukios has agreed to censure from the attorney disciplinary board.  This is just another example how even the best of intentions can get you in trouble.  As Koukios's lawyer put it:

"His only motivation was to help this young lady who was distraught," Ex said. "He did it without charge to her — financial charge."

Hmm.  Was there a non-financial charge?

UPDATE:

I did a little digging, and discovered that this is not the first time Koukios has been censured by the Illinois Attorney Registration and Disciplinary Commission.  He was also censured in 2007 for more mundane, but really more troubling, conduct:  he basically quit on a case.  Without his client's consent, he hired another attorney to work on the case and had that attorney settle that case without the client's consent.  The disciplinary board's decision is here.

Given this prior censure, I'm actually a little surprised that the Commission would agree to settle for just another censure in this case.  And, particularly given the publicity the case is generating--which clearly reflects poorly on the profession--I think the Supreme Court might impose a harsher punishment.

UPDATE 1/19/2011:

Koukios skates by with a censure.

Bold legal innovation in Illinois:

Rules of Evidence!

Welcome to the 20th century, Illinois judiciary.

If you thought patent trolls were a new thing...

check this out.

Is it proper for a legislator to consider the constitutionality of a bill when voting on it?

Dahlia Lithwick thinks not, apparently:

I have been fascinated by Christine O'Donnell's constitutional worldview since her debate with her opponent Chris Coons last week. O'Donnell explained that "when I go to Washington, D.C., the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not it is constitutional." How weird is that, I thought. Isn't it a court's job to determine whether or not something is, in fact, constitutional? And isn't that sort of provided for in, well, the Constitution?

More here.

And now for something completely different...

After so much fun, I thought it would be a good time for a wonky post about how to handle missed deadlines in civil litigation.  Particularly patent litigation.

One of the annoying things about patent litigation is that in many jurisdictions there are local rules that require the exchange of various pleading-like documents that set out the parties' infringement claims and invalidity defenses in great detail.  These are intended to replace the prior practice of exchanging contention interrogatories (though this is still the practice in most jurisdictions).  In my experience, these local rules generally create more problems than they solve, and create much satellite litigation about the timing and adequacy of the required disclosures.  While lawyers fight these issues out, the actual merits of the case sit off to the side.  Waiting.

I was reminded of this while reading an order issued yesterday by Magistrate Judge Jeffery Cole in the United States District Court for the Northern District of Illinois.

I get one more too!

Proof & Hearsay (the Milwaukee Journal-Sentinel's law blog) has a great scoop on Mr. Kratz:  a link to pictures of his sweet $350,000 house.  (Actually, it sold for $335,000, another sign of Mr. Kratz's fading star, I guess.)  Among many other awesome features, the house includes a "champagne parlor":

Looks like a VIP (Very Imprudent Prize) room to me.  One can only imagine the wild monkey-business that went on in there after late-night trips to the morgue.

All this glamour and glory on the salary of a state government employee!

One more and then I'll stop.

I will admit that this is starting to feel like piling on. However, Kenneth Kratz is going out of his way to make me look like a genius.

According to the AP, a third woman has come forward and alleged improper behavior by Mr. Kratz.

The latest allegations are more disturbing than the autopsy date but, arguably, less disturbing than hitting on a domestic abuse victim. Maria Ruskiewicz says that she was prosecuted by Mr. Kratz on a drug charge in 1997. In 2008, after turning her life around, she asked Mr. Kratz for support in seeking a pardon. Ms. Ruskiewicz met with Mr. Kratz and during the meeting, apparently apropos of nothing, he asked her if a boss could have a sexual relationship with a secretary. As an aside, the answer depends on whether the sexual relationship is welcome or unwelcome. A valuable lesson to keep in mind when sending text messages.

In any event, after meeting with Mr. Kratz, Ms. Ruskiewicz sent him a thank you text message. In response, Mr. Kratz began sending her suggestive emails. It is unclear on whether he mentioned he was "the prize." Understandably, Ms. Ruskiewicz was concerned about angering Mr. Kratz, who was critical for her pardon. However, she told him she was not interested and he said he would stop. Chivalry, apparently, is not dead.

All was quiet between the two of them for several months until Mr. Kratz sent her a message asking her to meet in person to discuss "a personal matter." By this time, Ms. Ruskiewicz was in law school and she met with an associate dean to discuss how to handle the situation. They then met with a university lawyer and decided the best course of action was to ignore the message. She also apparently informed an assistant district attorney in Kenosha County, Wisconsin about the text messages while discussing a possible internship. I wonder how that topic came up.

Anyway, I suspect the question now is how many more people have to come forward before this guy realizes that resigning is his best option. My guess, as indicated in the subject line, is one.

Inflammatory stupidity is one of the privileges of being a government employee

I'm not sure whether I can make the sparks fly in response to your post on Andrew Shirvell, the anti-gay (and anti-one-paticular-gay-guy) crusading assistant AG in Michigan.  But I will make two points in his defense:

Who takes a date to an autopsy?

In the early 90s, there was a Milwaukee rock band named "Soda". One of their songs contained the line "Monday morning, is just a kick in the head." I could not help but think of that line today when I read the latest developments concerning disgraced Calumet County District Attorney Kenneth Kratz. Monday is kicking him in the head. It appears that Wisconsin Governor Jim Doyle, a former prosecutor, does not believe that Mr. Kratz is the victim (or the prize) and is moving swiftly to remove him. Apparently, a taxpayer has to make a complaint before the Governor can do anything in the matter.

As the article points out, Mr. Kratz has also decided that he needs a lawyer. You will note that there is no link to the lawyer's web page. That is because, as far as I could determine, he doesn't have one. I am not sure that bodes well for Mr. Kratz.

Anyway, consistent with my prediction of further weirdness from Mr. Kratz, another woman has come forward. The Governor's office apparently received a letter from a second woman who says Kratz tried to use his job to entice her. Now, this woman apparently wasn't a victim of domestic abuse seeking Mr. Kratz's help. Instead, Mr. Kratz went out on date with the woman and gave her confidential details of a high-profile murder investigation. No word on whether this gambit helped win a second date.

While that is creepy, the really creepy part of the story is that Mr. Kratz also thought inviting the woman to an autopsy was a good way to move the relationship along. Like any good lawyer, he made sure that his offer of an autopsy was contingent upon receiving something in return. In this case the woman was supposed to "act his girlfriend and would wear high heels and a skirt." Maybe he felt it would be disrespectful to an autopsy than wearing flats and slacks.

What is it with prosecuting attorneys this week?

While this isn't as bad as Kenneth Kratz, an attorney in the Michigan Attorney General's office is engaged in some deeply weird blogging. Clearly some public officials have too much free time.

Andrew Shirvell, an assistant attorney general in Michigan, has a blog devoted to expressing his contempt of one gay person. I wrote that correctly, it is a blog dedicated to picking on one gay person. That person is University of Michigan Student Assembly president Chris Armstrong. Now, Mr. Shirvell doesn't like gay people, period. Still, the blog is really about one particular gay person. In fact, Mr. Shirvell has written 27 posts about one person. Who has the energy for that? Mr. Kratz or Ieshuh Griifin are going to have to make a lot more news before we come close to topping that figure.

Mr. Shirvell accuses this college student of being a “Nazi-like” recruiter to the “cult of homosexuality.” The analogy sort of breaks down when you consider that Nazi’s did not like homosexuals very much. Maybe less blogging about one gay student and more history study is in order. It certainly couldn't hurt.

The Michigan Rules of Professional Conduct seem to discourage this sort of thing. Rule 6.5(a) says:

A lawyer shall treat with courtesy and respect all persons involved in the legal process. A lawyer shall take particular care to avoid treating such a person discourteously or disrespectfully because of the person’s race, gender, or other protected personal characteristic.

I suppose Mr. Shirvell has two explanations for why he is not violating the rule. One is that sexual orientation is not a “protected personal characteristic.” However, Michigan does prohibit some forms of sexual orientation discrimination. The other may be that Mr. Armstrong is not, as of yet, “involved in the legal process”. But, as the comment to Rule 6.5 notes:

A lawyer must take particular care to avoid words or actions that appear to be improperly based upon a person’s race, gender, or other protected personal characteristic. Legal institutions, and those who serve them, should take leadership roles in assuring equal treatment for all.

It’s probably fair to say that Mr. Shirvell is falling short of that ideal. His blog is certainly based on one protected personal characteristic. I suspect that homosexuals who have been victims of crimes would not want Mr. Shirvell involved in their case.

So what to make of Mr. Shirvell’s hobby? Given that no one likes a bully, it seems like Mr. Shirvell should get a new pastime. Especially since his boss does not like it. Of course, now that his boss is on the record as not liking it, Mr. Shirvell will have a First Amendment retaliation claim if he gets fired or disciplined in the near future. In any event, if he directed some of the energy he devotes to Mr. Armstrong towards model trains, I bet Mr. Shirvell could make something like this. At the very least, it would keep him off the computer.