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Alex Kozinski rules.
Well, unfortunately not in this case -- he got outvoted. But his explanation of why the majority is wrong, and why the case is an object lesson that letting the government have too much power in criminal investigations is a Bad Thing, is just wonderful. The first six or so pages of the dissent, starting at page 23, are an imagined dialogue between the appellant's attorney and the appellant, wherein the attorney tries to explain to his client why he lost, even though the government deliberately deported eight witnesses who would have testified to his innocence. The best portion of the exchange:
Ramirez-Lopez: Isn't the jury supposed to have all the facts?
Lawyer: Not all the facts. Some facts are cumulative, others are hearsay. Some facts are both cumulative and hearsay.
Ramirez-Lopez: Can you say that in plain English?
Lawyer: No.
Kozinski's often funny, but he doesn't usually offer Dave Barry-style opinions. He's a wonderful example of a principled conservative; he doesn't trust the government of which he is a part, and unlike so many of his compatriots, that mistrust doesn't disappear when the police and the prosecutors enter the story. Here's hoping that the decision gets en banc review on the strength of his dissent.
In other news, the first day of the copyright course went well, I think. The difference between a 21-person seminar and a 90-person lecture course is that, in the latter, 20% class participation is a fair number of people. One down, twenty-seven to go. (Still difficult to believe they pay me for this.)
In celebration, I'm going to try to finish a draft of Switch!, which is going to be at least 80 pages. Yipes! Is anyone out there willing to beta read it, with special attention to making it funnier? Pretty please?
Well, unfortunately not in this case -- he got outvoted. But his explanation of why the majority is wrong, and why the case is an object lesson that letting the government have too much power in criminal investigations is a Bad Thing, is just wonderful. The first six or so pages of the dissent, starting at page 23, are an imagined dialogue between the appellant's attorney and the appellant, wherein the attorney tries to explain to his client why he lost, even though the government deliberately deported eight witnesses who would have testified to his innocence. The best portion of the exchange:
Ramirez-Lopez: Isn't the jury supposed to have all the facts?
Lawyer: Not all the facts. Some facts are cumulative, others are hearsay. Some facts are both cumulative and hearsay.
Ramirez-Lopez: Can you say that in plain English?
Lawyer: No.
Kozinski's often funny, but he doesn't usually offer Dave Barry-style opinions. He's a wonderful example of a principled conservative; he doesn't trust the government of which he is a part, and unlike so many of his compatriots, that mistrust doesn't disappear when the police and the prosecutors enter the story. Here's hoping that the decision gets en banc review on the strength of his dissent.
In other news, the first day of the copyright course went well, I think. The difference between a 21-person seminar and a 90-person lecture course is that, in the latter, 20% class participation is a fair number of people. One down, twenty-seven to go. (Still difficult to believe they pay me for this.)
In celebration, I'm going to try to finish a draft of Switch!, which is going to be at least 80 pages. Yipes! Is anyone out there willing to beta read it, with special attention to making it funnier? Pretty please?
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You can send it to shinan76@hotmail.com if you want.
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If you swim with sharks, you're either chum or you're a shark yourself. Lex had no desire to be fish food, and he hadn't been given the choice whether or not to enter the water.
First time these lines struck me -- you know, in the way you get something different out of a story every time (if it's any good, that is). So I love how layered up the piece is, how great the characterization. Convincing. Heartbreaking. Brutal. Yup. Still love it, and it just doesn't get old. Thanks for writing it. Thanks for sharing it.
Devin
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Kozinski
Yes, our court is the one that said a sleeping lawyer isn't necessarily ineffective (he may not have slept through *crucial* points of the trial, dontcha know!), and that just because the DNA found on a rape/murder victim doesn't match the prisoner, that doesn't mean the defendant didn't just murder the woman after someone else raped her earlier in the night (even though all evidence ever presented only pointed to 1 intruder and 1 incident--and the State never even bothered to argue the alternative that the Court came up with).
It was bad enough when we lost every case, watching the Court do Olympic gold-medal level gymnastics to keep defendants in prison with that one dissent. Now we don't even have the dissenter to keep our hopes alive. It was great to see that the hope could still be alive in the 9th Circuit.
I second your hope for an en banc review. Maybe he was able to open some eyes.
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(In a somewhat related story, when I was clerking on the 3rd Circuit, we had a case in which the judge left the bench during final arguments to the jury. There's a point in the transcript where the defense attorney objects to the prosecutor's closing, and then the defense attorney says that the judge isn't there; the prosecutor therefore continues on. Because the 3rd Circuit is not crazy, the panel ruled from the bench that there had to be a retrial: There was no judge, ergo there was no trial. It was pretty funny, unless you were the defendant.)
My experience at the Court converted me from a death penalty supporter to an opponent. I've been part of the process that kills a man, and it doesn't matter whether they deserve to die. We don't deserve to kill them. I only wish there were someone on the Court now with the courage to say "I will no longer tinker with the machinery of death."
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In law school, I clerked at a DA's office in one of the bigger Texas counties. I never thought I was really leaning toward defense or prosecution at that point. In fact, I really didn't want to go the criminal route much. (that's just where my background was, so that's where the career led me--and I'm pretty happy now) Seeing what the police/prosecution get away with really have me a healthy fear of the government.
Not that all police are bad by any means, most that I dealt with were very honest people trying to do their best in an amazingly difficult position. However, seeing the power they wield first hand, and watching how easily that power can be used for dishonest purposes scared me then and continues to scare me to this day.
Now I work in a public defender's office that handles inmate cases exclusively. I took the job because it was the one that I could get after graduation (I was applying mainly to DA's offices, actually). But I've grown to think that I'm doing good work, fighting the system--being a watchdog on those who have power and little restrictions (mostly the prison administration actually) My clients aren't the salt of the earth, by any means, but I still believe that every person deserves a fair trial and equal treatment under the law. I enjoy doing whatever I can to help that happen.
I have one now that I'm ready to file on where the judge presiding over the revocation of probation was the prosecutor at the defendant's original judgment for probation. No one seemed to notice or care, even though it's a clear violation of both the Texas Constitution and the Texas Code of Criminal Procedure.
I have to say that I was never pro-death penalty. And now that I live in the death penalty capitol of America, that opinion isn't very popular, so I generally keep it to myself. I used to say it was because the system is contaminated by problems, especially when comparing the relative economic status of defendants, but my brother actually forced me to get down to the meat of my objection, which boils down to "killing people is wrong, no matter who does it". I haven't been to an actual execution (in the viewing area--not that I'd ever want to be there) but I have been to quite a few from the outside of the prison (including both Karla Faye Tucker and Gary Graham--they shut down the town square for that one) and I have to say it's amazing how much of a circus some can be while others pass by unnoticed.
We were scheduled to have the first execution of the year this evening. I haven't heard if it happened or not (I generally find out the day after in the newspaper). Tomorrow (Wednesday) is the next one. There are 7 executions scheduled this month 2 this week, 2 next week and 3 the week after that. I doubt any of them will get any more than a blurb in our local paper -- and a lot less coverage than that anywhere else.
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shinan
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On a totally unrelated note, I heard a rumor (ahem, Heidi Tandy) that you've joined our law for non-lawyers cabal for Nimbus. If it's indeed true, I wanted to welcome you, and then ask if I could friend you. Oh, and I hear you're presenting in New Jersey on copyright and fanfic, and I wondered if you might send me your materials. Unfortunately, since I am nominally a corporate lawyer, the firm doesn't want to send me to New Jersey to study copyright. Damn limiting firm!
Amy
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I do expect to attend Nimbus, though I'm looking forward to getting more logistical instructions, because I am your basic absentminded professor type. I don't yet have materials for New Jersey; my outdated take on fan fiction is here (http://www.tushnet.com), but I'll develop them further as the time nears.
I'm always glad to make new friends, though right now I'm a bit Smallville-focused. I do book/music reviews and occasional law-type things, as well.