Once again, let's review "judicial activism."

Ted Cruz is a moron. He released a press statement this week regarding the US Supreme Court's determination that it would not hear any of the cases involving gay marriage and in that press release, he called the Court's determination "judicial activism at its worst."

Please. Please stop. You're making my head hurt. 

Judicial activism actually means something. It has a real, legitimate, actual meaning. And that meaning isn't "I don't agree with them." 

In order for a court to be considered "activist," the court must do something. It must act. Weird, huh? It must make a decision on a case. 

The Supreme Court did exactly the opposite of that. It did nothing. Nothing at all. Not one damn thing. Therefore, it cannot be considered "judicial activism" because the Court won't hear the gay marriage cases. 

Here's how judicial activism looks in real life: 

Minnesota's high court gets it wrong again

I'm a bit late on this, but it's still interesting, so I wanted to touch base on it.  Recently, the Minnesota Supreme Court ruled that the necessity defense does not apply in cases that deal with a person's loss of their driver's license for a DWI. 

It's a case called State v Axelberg and it's a case where the court had a perfectly situated defendant for the necessity defense, but instead of doing justice, the Court did nothing and furthered the injustice of the situation. 

MN Court of Appeals says, "If the police COULD get a warrant, then it's totally fine if they don't."

I am so appalled today by the recent MN Court of Appeals decision regarding Test Refusals that I can't even express it in words.  I'm sure I'll have more to say once I've had time to stop beating my head against my desk, but here's today initial reactions to this wrong, wrong, wrong decision. 

The case is State v. Bernard.  It's a published decision, which means that the lower courts (such as the ones I spend all my time working in) are required to follow the holding in the case.  And what was that holding?  Well, here it is: 

"The state is not constitutionally precluded from criminalizing a suspected drunk driver’s refusal to submit to a chemical test under circumstances in which the requesting officer had grounds to have obtained a constitutionally reasonable nonconsensual chemical test by securing and executing a warrant requiring the driver to submit to testing."

Let's pull out the important pieces of that extremely wordy sentence and break it down. "The state is not constitutionally precluded from criminalizing...refusal to submit...under circumstances in which the requesting officer had grounds to have obtained...a warrant." 

Okay. What does that mean, exactly?

"Free speech" doesn't mean you can be an asshole without repercussions

Let's play a game I like to call "civics lesson."  This is where we discuss things that the general public should have learned in school in civics class, but apparently either forgot it or never learned it. 

Today's game centers around the First Amendment and specifically, the right to freedom of speech.  As you may have heard, some guy on that stupid show "Duck Dynasty" made some assy remarks about black people and gay people. Then he got suspended from the show. 

First of all, I don't care at all about that show or that guy. That show looks stupid as hell to me and I have less than zero interest in watching it.  The only reason I would even mention it in my blog is because it's caused so many people to say "But the TV network is violating his right to free speech by suspending him!" (I'm looking your way, Sarah Palin...)  Which is 1,000,000% wrong.  And it's driving me a little crazy, so I think we should discuss. 

The Brooks Decision--coercion isn't even a real thing

Oh, how the Minnesota Supreme Court disappoints lately with its terrible, terrible, completely inane rulings. Yesterday was no exception. Yesterday they delivered a nonsense, ridiculous opinion that doesn't make any sense w/ already established case law. Because apparently, the Court isn't interested in making sense. 

Yesterday's decision was about a recent US Supreme Court case, Missouri v. McNeely and a couple of Minnesota cases, referred to as Brooks. Prepare yourself, kids, because this is gonna be a lengthy discussion.  I will do my best to not talk like a douchebag lawyer about it, so that everyone can understand how stupid this decision really is--I'm thoughtful like that. 

So, here's the situation: 

Where are we going? And why are we in this handbasket?

SIGH. 

It's like a never-ending onslaught of destroying people's rights lately! Did no one take civics class in high school?? What is wrong with people lately?! Recently, this little piece by Lawrence O'Donnell from MSNBC started circulating on Twitter. And I saw it. And it made my head almost explode. 

Defending the public defenders

This article is probably the most offensive thing I've read about public defenders in a long time. It's so full of ridiculous assertions I barely even know where to begin. Let's review the idiocy put forth in this moronic article, bc I'm angry about it and feel like eviscerating it. 

Time to start playing hide the ball...

I am extremely annoyed with a case I am dealing with currently. I found out today just how differently I have to deal with the prosecutors in my current county from the prosecutors in my old county.

My general approach to lawyering/plea negotiations has been to be as honest & forthright as possible, w/o revealing any client confidences. I expect prosecutors to do that with me so I do that on my side of things. But apparently this general policy is not one that I should continue in this new county, since it's now being used to the detriment of my client, something that has never happened before on any of my cases.

Grumbles about things

Work has been exceedingly frustrating lately. It's making it really hard to feel any real satisfaction or enjoyment @ my job lately. There are a few things all kind of coming together that are making things tough.

The first is the rapid pacing of probation violation hearings recently. Unlike new charges, where a person has to be given bail, on probation cases the person can be held w/o bail until the hrg, which has to be w/in 7 days. This week I have 3 or 4 of those hrgs scheduled which means I am scrambling to try to get things done on the cases in time. It's really difficult to get everything done when it's so fast & so many at the same time.

I am also getting little in the way of offers on cases. This makes it difficult to make any headway on the cases. Most of my clients want to resolve the case but it's hard to get offers out of the prosecution & when I do, the offers aren't even all that good. So clients are just of the mindset that they might as well take their chances @ trial. So that means extra work for me bc of trial prep.

In a non-work related but still frustrating item, I am doing my very first 5k this Saturday w/ CB and I am pretty excited for it, but no one is coming to watch & cheer me on. A couple of my friends said they would try to but couldn't get the day off work. My family isn't coming for whatever reason. So no one will be there w/ me except CB. I am glad she will be there w/ me so @ least I won't be totally alone, but it would be nice to have @ least one or two of my friends or family there, too. I know it's just a dumb 5k but it's my first one & kind of a big deal to me. Really sucks that I won't have anyone to celebrate with me.

Grr, I am a crankypants.

Hopefully this won't crabby mood won't last too long.

Sometimes "justice" doesn't feel very just...

http://m.twincities.com/twincities/db_39829/contentdetail.htm?contentguid=jnn2OvWr
I think this is completely unnecessary. If you don't want to click the link, the nutshell version is that a 4 year old got his hands on an improperly stored and loaded gun and accidentally shot and killed his two year old brother. Now the state has charged the father w/manslaughter and endangering a child, both felonies, because the father didn't store his guns properly (he apparently had a small arsenal of guns in the home).
Yes, I get it: he should have stored the guns in a safe way so the children could not have accessed them. If he had, the child would still be alive. But, I'm sure he already knows that, seeing as how he has lost his son. I'm sure that he is struggling w/ unimaginable grief and pain and, yes, even guilt and regret. He is paying for his bad decisions in the most excruciating way possible, by burying his tiny son. How does charging this man do any good?
He is now looking at two felonies, including prison time, despite never having any previous criminal convictions. He is dealing with the loss of his son, he and his family are reeling from this tragedy, and now he and his family have to deal with the stress and strain of criminal charges.
Why do this? It doesn't bring the child back. Assuming he and his wife are still together, it won't help the victim's family feel closure but will only further tear the family apart if he is sent to prison. I doubt it will "correct" any "criminal" behavior in this guy, since it doesn't appear he has criminal predilections (given his lack of criminal history) but rather lacks judgment skills. And I would guess that he won't ever store his guns in this manner again. So what purpose does charging him serve? Prosecutors have  the power and ability to use discretion in charging cases. Maybe as a defense attorney, I'm missing something that a prosecutor would see that puts a different light on this. But I just don't get why some prosecutorial discretion wasn't used to say, "You know what? He is going to be paying for his decisions for the rest of his life. Criminal charges won't correct, cure, vindicate, or help this situation one bit."
Like I said, maybe I'm not seeing something. But putting aside my "lawyer" hat and viewing this simply as a regular person with a heart, I still don't get it.

Proposed change in the laws

I have a pet peeve about current laws re: restraining orders.  If someone has a  restraining order against you, say your former lover who you still have feelings for, you are barred from any interaction w/ them.  Even if they decide they miss you and so they drop in at your home or give you a call. 

The common scenario I run into is a cranky person who abuses the order by only calling police to report a violation when they aren't getting their way in the relationship. They lie and say they had the order dropped or they lull the other person into a false sense of security that they won't report violations since they want contact.

I have even seen cases where the person with the order was calling the guy, inviting him over, and sleeping with him! But when he biked by and waved to her, THEN she called the police. Dumb!

So here is my proposed change to the law. A restraining order implies that someone doesn't want to interact with the other person. So how about the law include an affirmative defense that they initiated contact and thus nullified the order? That way, people who really need the protection, who don't want any contact, are protected still but the law can't be used as a tool for a disgruntled mate.

Just saying.

I am such a Millenial...

On Friday, I misplaced my check card. I had exactly $9 in cash. My immediate reaction was thinking that I needed to cancel the card. Then, I thought to myself: "Crap. What am I going to do  until I get the replacement card? How will I pay for things? I guess I could use cash...but I only have $9! How am I supposed to get my money out of the bank?!"
Then, gradually, a small nugget of memory emerged from the time capsule of my childhood that is in my brain. Didn't my mom used to go inside the bank all the time? When a "check card" wasn't even a thing and everyone wrote checks...my foggy childhood memory seemed to recall standing in line @ the bank. The concept seems so foreign to me now that I almost didn't believe that it was a real experience I had. But as I though about it more, more memories of this mysterious "inside the bank" came to mind: pens on really long chains; those stretchy elastic barriers that made up the line people had to stand in; an island in the middle where people would stand and fill out little pieces of paper that they would hand to the person behind the counter... These things were real! I just had forgotten these days of yore. So, there HAD to be some way to go inside the bank and get my money.  Problem solved.
I lost my card on Friday. It took me until today to figure this out. Talk about being a product of my generation...

Oh nice...

A recent MN Supreme Court case has held that a defendant's post-arrest, pre-Miranda silence can be used against him in the state's case-in-chief.
Because that makes a lot of sense.

Blah

So lately I've been feeling very blah.  I'm not sure why.  It's not low thyroid meds, since I'm on a new dose and have been for awhile and I'm feeling better overall now.  So it's not that.  I'm not sure what the problem is. 


I've been feeling just kind of bored with everything, I guess.  There's not anything in particular that is wrong.  It's just sort of routine and boring.  I feel like it's my own personal "Groundhog's Day."  Every day seems to bleed into the next one and the next and the next. 


I can't say I'm unhappy necessarily.  I'm just bored.  Everything is fine.  Work has been the best (read: least overwhelming and fewest crying sessions) that it has been pretty much since I started.  Hat is still wonderful as always.  We aren't lacking for anything and we have most of the creature comforts that you'd expect--cable, internet, big ol' TV (thanks again, Dad!), video game systems, functioning cars (with warranties still for extra bonuses), etc, etc.  But, I'm still bored/blah.  


I sort of wonder if the problem is that I'm out of goals.  I've accomplished the major life goals I set for myself when I was younger.  Go to college--check.  Go to law school--check.  Get a good job making decent money/not be on welfare like I was as a child--check.  Get a job as a public defender--check.  Get married to someone awesome--check.  Aaaaand now I'm done...so, I'm supposed to be basking in the gloriousness of my accomplishments.  Instead, I'm constantly thinking, "This is it? Getting up at 5:00 a.m. is not what I'd expected as basking in the gloriousness..."  It's a lot less spectacular than I had expected. 


And being a grown-up is a total rip-off.  It's no where near as awesome as I thought it would be when I was a kid.  Being a grown-up was supposed to be full of no bedtimes, no rules, and having so much fun because I could do whatever I wanted.  None of those things are true.  I do have a bedtime, since I have to get up so early for work.  There are rules, like that I have to wear a suitcoat all the time at work (barf) and I have to have insurance on my car (expensive).  And it's not so much fun because I can't do whatever I want.  I have to do things that I need to do or am supposed to do.  Someone should have told me that being a grown-up is not nearly as sweet and magical as it seemed.  Instead it's full of responsibilities and bills and work and buying toilet paper.  Ugh... 


So, maybe it's that I'm out of goals now and I expected it to be way more chock-full of awesomeness than it is.  Maybe it's that being a grown-up isn't as fun as I thought it would be.  Maybe it's because doing the mundane things, like buying toilet paper and toothpaste and paying bills and getting an oil change, are just that--mundane. 


I'm not sure what the problem is but I wish it would go away.  Part of me feels like telling the other part of my to STFU because nothing is wrong so just be happy w/ that.  But the other part of my is still bored and I can't shake it.  I wish I knew how because I would really like to not be bored anymore.  It sucks.