“I’m the BEST BLOGGER EVER! Really! My blogs are so wonderful and entertaining and smart. Because  why? Because I am so smart. And SUCH a great writer! Did I mention that?!? Really really really great. Dickens Great. Shakespeare Great. Heck, even Louis L’Amour Great. So, Great! Let’s face it—  I’m Great!”

Sound demented? Try this:

“I’m the BEST LAWYER EVER! Really! I’m so great. I win so many trials it would make your head spin. If you hire me I am going to do such an amazing and brilliant job in court that people will weep. Seriously! Trust ME! People say I’m arrogant. Whatever. WHATEVER! I am what I am and they are all jealous. And stupid. Really, really stupid.”

Like that? I don’t. So why is it that someone who talks like that is leading the so called “race” for President right now? It really makes me wonder. But I think Donald Trump is succeeding because of two other things he does:

He speaks plain English and he just says what he wants to say.

No fancy schmancy. It works.

The reason I am writing about this has nothing to do with politics. I try to avoid that like the plague. It has to do with how to talk to people in a way that works. Lawyers use words and talk to people for a living. No matter what kind of law we practice we have to speak or write clearly and make sure people understand what we are saying. Unfortunately too many lawyers lose their point in a sea of complicated words nobody can understand.

I watched Trump give a speech in Iowa the other night. It was fascinating. He just talked. He did not pontificate or use big fancy words. He just said stuff. And you know what? People listened. Why? Because he made it easy for them. In the interests of political neutrality, I can say that Bernie Sanders does the exact same thing, which is why so many people are also coming to see him talk.

I knew a used car salesman once (no, this is not the beginning of a “walked into a bar joke”.) He liked to say that he did not really sell cars. Instead he just made it easy for people to buy them. He had a point. Trump makes it easy for people to understand him. That’s his trick: “K.I.S.S.”  [Keep it Simple Stupid.]

The thing is that most politicians speak like robots. They are trained to say certain things certain ways using certain words. The whole thing is so scripted and unnatural. Unless they are really good at it, it comes across as fake and insincere.

Lawyers have the same problem. We have a set list of words to say and ways to say them. It even infects non-lawyers who work with us regularly, like cops. Police officers are notorious for using buzzwords. Instead of “I got out of my car” it becomes “I exited my vehicle.” My best come-back to that during trials is sometimes: “So by exited your vehicle do you mean you got out of your car?” It’s a fair question and thus can’t really be considered too sarcastic or critical. But it shows that they are reading a script, which can be helpful if I am arguing their credibility to the jury. You just aren’t as credible when you are reading a script.

Which is why politicians reading scripts from Teleprompters sound so scripted. Because they are literally reading scripts! I’ve seen lawyers do it too. I saw a real live lawyer in a death penalty case get up and read his closing word for word off of a legal paid to the jury, never looking up. They were falling asleep by Page Two. His client went down.

Instead of reading scripts lawyers should watch Donald or Bernie (take your pick; this is an apolitical piece.) Lawyers might learn something from watching these two, like how to talk to an audience. Whether you are talking to a jury or your own client, plain English is the best way to communicate… er, I mean, talk. They are your audience. Try talking to them instead of at them. Maybe then they will listen.

Mohamed Arrested

“Can you say Racial Profiling? Strike that. Can you say Blatant Racism??” This was my original thought for an intro to a post about what happened to that high school kid in Texas, Ahmed Mohamed, who was arrested for possessing a clock. Actually, it was worse than that. It looked as if he was arrested because his name was Mohamed.

Or so it seemed. Now it’s not so clear what was really going on here. That is very typical in my work; criminal cases are so often not as simple as they seem at first, especially when everyone rushes to judgment. My job is to dig down into the facts to unravel what really happened. We criminal lawyers find ourselves going down the rabbit hole of analysis, curious about what we might find there. Mohamed’s situation provides a perfect way to illustrate this.

This all began when the kid brought something to school to show to his engineering teacher. Although he explained that it was a homemade clock, his teacher told him it was nice but that he shouldn’t show it around, apparently thinking it might appear suspicious to an untrained eye.

Next, the alarm went off in English class. The English teacher, who probably was not up to speed on technology, became concerned that it looked like a bomb. Before long the principal had detained Mohamed with the help of some police officers. Once detained, Mohamed was searched and told to write a statement or be expelled. Ultimately, the boy was arrested and suspended for three days from school. If this were a criminal case, right away we have lots of issues that make lawyers like me very curious.

Was the search legal? Was it legal to coerce him to make a statement? Was the arrest legal, based on valid probable cause? If any of these actions were arguably illegal, could evidence be suppressed? What evidence? (The legality of the suspension is another issue, but not one that would be central to most criminal cases.)

Next you have to be curious about the motives of the police. Were they indeed being racist? If so, does that make their actions illegal? Lots of people, from Mark Zuckerberg to President Obama apparently thought so. Suddenly Mohamed was famous, being invited to the White House and offered college scholarships, which also makes me curious.

At this point it appeared that the police had probably acted illegally, arresting Ahmed Mohamed because of his name, coupled with the fact that this all occurred right after the anniversary of 911. Which is when you need to drill down further, because typically nothing is at is first appears in this world.

A central problem with the initial analysis is the “rush to judgment”, both by the police and by those who criticized them. In many criminal cases we see how the desire of the police to make an arrest quickly and “solve” the case causes them to make mistakes. O.J. Simpson’s lawyers argued this extensively in his murder trial, but it has been argued by criminal lawyers forever. Probably because it is a real ongoing problem. The invitation to the White House? Not something we see so much.

This is when the more methodical drilling down began. Enter the tech nerds, stage right, a naturally curious group. Here in Seattle, we are very familiar with techies. They fill every coffee shop on every corner. In Ballard, they practically own the place.  They do not strike me as a bunch of racists. If they were, they would have a lot of trouble working in a business where half of their colleagues have brown skin and funny names. But they are curious about technology. So, when they started weighing in about the homemade clock, I got curious.

The techies were almost unanimous in their opinion that the clock was a fake. They said that it looked like Mohamed had simply removed the inner workings of a real clock and put it in some sort of pencil case to make it look like he had made it himself. Or perhaps to make it look like a bomb? They looked at things like the circuit board, which is commercially available and did not appear to be homemade. Me? I have no clue. I’d need an expert to help me sort it out, something else that is common in criminal cases.

Next came the rampant speculation about what Mohamed was up to, faking this clock that looked like a bomb. This ranged from those who thought he was probably trying to create a problem, seeking the limelight; to those who thought maybe he was just a 14 year old kid cutting some corners to impress his teacher.

Then it got curiouser. And curiouser. Turns out Mohamed’s dad, Mohamed El Hassan Mohamed, is not some random anonymous immigrant. In fact, he is famous. He ran for President of Sudan. Twice. He also volunteered to be the lawyer for the Koran in the infamous case where that nut job minister from Florida wanted to put the Muslim holy book on “trial”, whatever that means. This is Mohamed’s father and role model. It has to make you curious about what was really going on here. This is especially true when you consider that Ahmed made comments to the effect that he was delighted with the media coverage he was receiving because he was looking to get noticed in the first place and had succeeded beyond his wildest dreams.

So, what is my point? My point is that not everything is as it seems upon your first impression. The more you dig down the more you may find yourself down a rabbit hole of curious and confusing facts, facts that have to be carefully analyzed, calmly and objectively, in the cold light of day.

Which is why this odd little story is so useful to demonstrate what criminal lawyers like me do every day:

We take something that looks simple at first, and we look again.

Once we do, we often start finding new and different ways to look at that initial information. Ultimately, we may need to bring all of this information, or evidence, into a courtroom to be examined in the light of day, without the hysteria and knee jerk reactions that cause confusion. If done correctly, we hope that justice will prevail.

What would be justice here? I have no idea. I would need to talk to the witnesses and find out much more than is available online. But one thing is clear: nothing is as simple as it first appears.






The Public Defender

Well, here I go again. Saying nice things. I know that is practically illegal to do online, but I promise to get more critical soon. Frankly, my main source for topics has previously been mainstream media, but since the only thing they seem capable of talking about right now is Donald Trump, and since I refuse to get into politics, it leaves me kind of high and dry.

So for now, I want to give another big shout out to all public defenders. It may seem odd for a private lawyer, like me, to root for people who are basically in competition with me. However in reality, there are two types of private criminal defense lawyers: those who criticize public defenders and those who know better. I am firmly in the latter group.

I know that public defenders are typically some of the smartest lawyers in the room whenever I walk into court. They work hard, know the players and are on top of the latest developments in the law. Yet, they are taken for granted, or worse, maligned as being “Public Pretenders”. My favorite is when clients say, “I didn’t have a lawyer when I was in court—I had a public defender.”

There are two slightly negative (but true) things I say about public defenders when asked by potential clients. After I talk about how knowledgeable and competent they are I tell people that, first, they are indeed overworked and, second, you cannot pick your individual lawyer the way you can when you hire one. You get whoever is assigned to your case. And, to be absolutely fair, there are good PD’s and not so good PD’s, just like cops or judges or prosecutors or barbers. You get the lawyer you are assigned to, which can be a problem in some cases.

But in most cases, you can be very confident that your PD is a great lawyer. It’s just that they don’t have enough time to spend with you.

Recent news stories about public defense shed a great deal of light on this problem. The National Association of Criminal Defense Lawyers, of which I am a proud member, released a detailed report last week regarding problems with public defense. Simply put, they highlighted the lack of funding for public defenders and the improper control judges have over them. I could not agree more.

As a prior long time public defender, and former President of the Washington Defender Association, I was personally involved in submitting funding requests as well as drafting and approving national caseload standards for PD’s. It was always a struggle to figure out how much we dared to ask for, knowing that whatever we requested, we would get less.

Focusing on the NACDL report, the issue of judicial involvement is especially troubling to me. Imagine that you were charged with a major federal crime and couldn’t afford the $100K or so that those typically cost to defend. Would you be comfortable having the same judge who is ruling to have you held in jail and denying all of your pre-trial motions decide how much to pay your lawyer to defend you? Put it another way, would it be OK if your favorite football team had its roster picked and salaries decided by biased refs who all come from the same town as your opponents? While you are playing in their hometown?

John Oliver did a great piece recently about these problems (as usual, Oliver uses a lot of profanity in his work so be warned.) He points out several glaring problems with the system, including the ridiculous approach of jailing low-level offenders for what are really financial crimes, like not paying for traffic tickets and having your license suspended as a result. People without money are unable to pay the fee required to apply for a public defender and are forced to do without a lawyer as they languish in jail. It costs way more to house them in jail than they are costing the system by not paying their fines. Where is the logic in that? Are we really so interested in creating debtors prisons in this day and age?  I am reminded of Ebenezer Scrooge demanding to know if workhouses and debtor prisons in Victorian England were still up and running. Old Ebenezer would be delighted to live in our day and age.

But the main problem with public defense is public defense. Garbage men are way more useful in the public’s view. They take garbage away. PD’s put it back. That is how most people see it. But try to imagine how you would feel if it was your life at stake. As Oliver points out, the fact that PD’s are being forced to beg for money from private charitable contributions can not be a good thing. What if the garbage men needed private donors to stay employed? We would have a serious rat problem.

This is the issue. People charged with crimes are not rats. Not unless they snitch off other defendants that is (sorry, a little criminal lawyer humor there.) People are people, and the fact that there are more of us sitting in American prisons and jails than are incarcerated anywhere else in the world, per capita, should be alarming to everyone. When those people are not provided with legal representation that is properly funded, it becomes a crisis.

We do have a crisis in our criminal justice system. So long as people are being locked up in droves, many convicted of minor property crimes, without being given access to lawyers who have the time and resources required to protect their constitutional rights, America can not honestly claim to be the Land of the Free; and until people have the courage to stand up and fight against this biased unfair system, we also have to think twice before claiming to be the Home of the Brave.

Dog and Bird








That has to be one of the World’s most Ironic Quotes Ever. It came from Rodney King, who was in the middle of two of the most notorious violent episodes in the 90’s. First, his own videotaped beating at the hands of some of LAPD’s finest. Second, the riots caused when those same cops were acquitted of that beating and South Central Los Angeles erupted in violence.

But who better to ask the question? Why CAN’T we all just get along?

I ask that question in the context of blogging and online comments. I guess I am officially a blogger in some people’s minds at this point. Who knew? But here I am, writing and drawing fire from strangers and indirectly contributing to the negativity online just by blogging. So I guess for me to ask why people can’t just get along is a bit ironic too.

When I first got into this whole blogging thing I made some rules for myself. I hated the way most lawyers were using blogging to simply advertise their services, mindlessly repeating key words to improve the chances that potential clients would find them on line by making themselves look good to the Google algorithms. I vowed instead to try to write about issues I actually cared about, where I might be able to shed some light based on my experiences as a criminal lawyer.

So I did.

But a funny thing happened while trying to share my views and provide some insight for people who did not know first hand, as I do, what it is like to work in the criminal justice system every day.  I got slammed. Slammed by angry people who apparently found it cathartic to express their own views in hostile rude ways. I am told they are called trolls. Some of the most vehement negativity came when I tried to say that lawyers are not all bad. Again, ironic.

So, I made another vow to myself, which I would like to share here: I vowed to take the high road. My hope was that by refusing to play along, I might show people that there was another approach that could work better and foster open communication. I vowed to avoid reacting with anger and venom to input with which I disagreed.

When people commented in what might be considered negative or even nasty ways, I refused to follow their lead. Instead I went to great lengths to understand their points of view and respond respectfully.

And guess what happened? It was like magic. People who began with snarky vitriol morphed into polite intelligent reasonable debaters. They disagreed, but invariably they began calling me “Sir” or telling me that they really did not hate all lawyers, despite what they had said earlier. And guess what happened then? We had a meaningful discussion about the actual issues, not about whether my mother had a questionable occupation.

It works. Try it. Old lawyers like me like to demonstrate this principal to younger attorneys. We ask them to hold up one hand, palm facing out. Then we push our own hand against theirs. Every time they automatically push back. “See?” we say. “When you push the other side pushes back  If you shook that hand instead, what would happen?”

Don’t get me wrong; I can be the most annoying push-back kind of guy imaginable, especially in court when I feel that my client is getting a raw deal.  And no doubt on this blog I am going to be snarky and sarcastic and borderline rude at times. I mean, I am what I am.

That said, my goal is to do my best to keep it civilized. A little sarcasm does not have to come in the form of a nasty rude personal attack. There are ways to disagree without crossing that line.

We see bad examples everywhere. Even Justices on the Supreme Court; just look at Scalia and his personal attacks on his fellow Justices, saying that he would rather hide his head in a bag before writing an opinion like one with which he disagreed. Really? From a sitting U.S. Supreme Court Justice? That just doesn’t sound very “high road” to me. Well, “high” maybe… (See?  You can be a bit snarky to make a point, without going too overboard. There’s a balance. Plus, I am sure Scalia will never read this, so it is hardly personal.)

Scalia’s behavior may be why the trolls feel free to go so crazy, especially when they are working in relative anonymity. I mean, Scalia was writing that in an official published Supreme Court opinion. No wonder some nameless person sitting in their recliner at home feels free to spew.

So we have to lead by example, which is what I am going to try my best to do. My goal is to encourage meaningful discussions about our justice system from different viewpoints. From this point forward, I promise to do my best not to sink as low as Scalia – another very ironic statement. He is supposed to be at the top, not the bottom of the barrel. But until we show that reasonable debate is the best way to actually open a meaningful dialogue about important issues, we will all need to think about hiding our heads in bags. At least Scalia has that much right.

Lincoln the Lawyer

I know, right? It’s a take on an old lawyer joke. That oughtta attract some troll traffic. But I just can’t help it. All of the online negativity in general, and that directed at lawyers specifically, is beginning to get to me. I’ll have more on the general negativity later, but for now let’s look at the lawyer stuff.

If you have followed these posts you will have noticed that I dropped out of sight for a while, since July 8th to be precise, which was when one of my last posts was buffered to hit the airwaves… precisely as my cardiac surgeon was busy cracking my chest wide open so he could stop my heart, hand my life functions off to a machine and hack away at my innards. You think I was about to make any surgeon jokes right about then? No way. My life was in his hands, literally.

Then why is it that everyone takes such glee in ridiculing, criticizing, and mocking lawyers? People put their lives in the hands of their lawyers. In reality most lawyers deserve the ridicule about as much as my excellent surgeon would have… not at all. Of course there are good lawyers and bad lawyers, just as there are good surgeons and bad surgeons… or butchers, or bakers, or candlestick makers.

One thing my ‘near death experience’ taught me was to appreciate what we have. Even if that includes lawyers. See? Even I can’t resist telling a lawyer joke, like the ones Shakespeare used to tell in his plays, like: “First thing we do let’s kill all the lawyers.” 

Except Shakespeare didn’t actually intend that to be a joke. What Shakespeare meant was that by killing all the lawyers law and order would be destroyed, and the bad guys would be able to take over the government. Law and order was considered to be a good thing, something lawyers helped protect.

Which we do. Every day. We live to do that. Like it or not.

When I was lying there in my hospital bed, after surgery, happy to just be alive, I made the mistake of checking some comments to my latest blog on Facebook. There were some typically brilliant observations from non-lawyers on there. Cavemen-troll grunt sounds like: “F U Mo Fo!”  Wow. That guy would never deserve to be made fun of. But the most common cutting comment was along the lines of “There goes another greedy lawyer, out to cheat people out of their money.”

With respect to the claim that lawyers are greedy, it’s true that we like to be paid for working. Most people do. Lawyers, like most people, have bills to pay. It’s hard to do that working entirely for free. That said, I strongly doubt that there is another profession that does as much free volunteer work as lawyers do, with the possible exception of doctors like my brilliant surgeon, Mark Hill at Virginia Mason (who one of the nurses told me took on charity cases). Bar Associations even have official programs that recognize lawyers who perform substantial free legal work by placing them on an “Honor Roll” and handing out annual awards. I strongly doubt that many other professions place such a strong emphasis on working for free.

What about ethics? People have NO idea. Over the past thirty-three years of practicing law, I can honestly say that scarcely a week has gone by when I have not carefully reviewed some sort of ethical quandary, usually by discussing it with other concerned lawyers in my office. We have a huge set of complicated ethical rules. If we make a mistake we can have our licenses to practice revoked. Again, can you imagine other professions with those sorts of detailed guidelines?

Take realtors for example. No offense, but in my experience they will say just about anything to make a sale. At which point, by the way, they stand to make thousands of dollars for doing just a few short hours of work. I don’t mean to pick on realtors. Ever look at what bankers do to make a buck? How they play with people’s money and never seem to be held accountable for whatever happens with it? Or financial planners? They make money even when they lose all of yours.

Don’t get me wrong. I know that these things can be said of lawyers too. But when is the last time you heard a funny realtor or financial planner joke? This is my point.

Lawyers simply do not deserve all of the “neggy treatment” they get. It’s not just that it’s unfair; it’s not accurate. Lawyers, on the whole, are some of the most conscientious, trustworthy, dedicated, hardworking, morally correct people on the planet. I can’t tell you how many nights I have laid awake, staring at the ceiling, unable to sleep because I was so worried about making sure I was taking care of my clients. And money had nothing to do with it, even if I was being paid. It was simply because I wanted to make sure that I lived up to what my clients needed and expected from me. It is not something we lawyers take lightly, believe me.

I know this because some (most actually) of my best friends are lawyers; it comes with the territory. We go through intense schooling together, work together, fight together and hang out together. And I can’t tell you how many times I have heard them talk about how worried they were about their clients, or doing a good job in court, or obsessing over a potential ethical issue. It’s what dominates every minute of our lives.

I know not everyone will believe this. But, trust me, it’s true. Get it? Trust me? I’m a lawyer so that must be a joke. But it’s no joke. We take our jobs, and the welfare of our clients, very seriously. Deadly seriously, even if we don’t do open heart surgery.

So the next time you need help from a lawyer, remember that. Chances are extremely high that you will have a dedicated, competent, hard-working professional in your corner. It’s what we do.


Protest Police

I’ve had it. For some reason that video, the one with the idiot cop screaming about blowing a hole in the poor guy’s head, got to me. No, the victim wasn’t black. And no, he was not actually shot and killed. But maybe that’s the issue. There was nothing else going on with this one other than the fact that the cop was a complete jerk.

Which, unfortunately, is simply too often the case. Of course this is the part where I am supposed to point out how wonderful most cops are and how this is just one bad apple. But, I am sick of saying that. Why? Because it is total politically correct nonsense that we are basically forced to say and I refuse to keep playing that game. It is a lie. We are forced to say that because we don’t want to alienate people or lose potential clients by simply speaking the truth. Not to mention that there really are plenty of nice decent police officers; but why is it whenever I meet one, they seem like such a breath of fresh air? Such an anomaly? Oh, yeah, I remember now. It is because they are the EXCEPTION, not the rule. Take my word for it. I know.

How do I know? Because I have been dealing with this problem for decades. It is much like the mandatory minimum sentence issue I addressed last time. For decades I have been trying to tell people about the problem with cops running wild and I have never been able to get anyone to listen to me. Everyone is just so blind and biased that they refuse to see the truth. But I have been seeing the truth since my first day as a criminal defense attorney, and the truth is that the way too many of the cops out there are corrupt, lying, biased, power tripping jerks. Sorry officers, but you know it’s true.

There, I said it. Just as I have tried to say it a million times. In court, for example, when I KNOW a cop is up there on the witness stand, lying a blue streak, but the judge acts as if I am some sort of commie pinko for daring to question that wonderful officer’s integrity. Never mind that every shred of evidence points that way, other than the fact that the guy all dressed up in his pretty uniform with no place to go is up there smiling and acting charming. That seems to be enough to fool most judges, and I’m sick of it.

Because, you see, I blame the judges. And the prosecutors. And the biased public with their pretty uniform obsession. Jurors tell me all day long how open minded they are going to be, perishing the thought that they would ever possibly take the cop’s side just because they are cops. Then, after they convict my client and I make the mistake of talking to them after the trial, they invariably take me to task for daring to try to make the cop look like a liar. Never mind that they are indeed lying. It becomes my fault for pointing it out.

I was once in the middle of a trial where it was the cop’s word against my client’s. I tried to show that the cop was biased, heaven forbid. I mean, how dare I, right? They look so pretty up there in their nice uniforms. With their Pepsodent smiles and charming nods to the jurors.

I went through the usual litany. “Does it help your career if there is a conviction in this case, especially since you made the arrest?” You would think it might, right? Am I the only one who believes that is possible?

“Objection, Your Honor!” It is like an involuntary prosecutorial knee jerk reaction.


“But your honor, if it would help his career then this officer might have a motive to make sure his testimony helps get a conviction, making him biased as he testifies.” You would think I had just accused him of decapitating babies. It is so impossible for the judge to believe that a cop would ever lie or embellish or exaggerate or not be completely fair and neutral that they refuse to even let me ask the question.

I generally push on, changing the question slightly, along the lines of, “If you go to work tomorrow and there has been a conviction in this case can you imagine that a colleague might congratulate you?” That draws an objection that makes me sound as if I am now accusing the cop of dismembering that dead baby’s body, followed by an even more outraged “Sustained!” It is as if they can do no wrong up there and I am a monster for suggesting otherwise. This happens virtually every time I try to do it.

Which is the problem. The cops come to believe they are above the law because that is what they experience all day long. It is a bit like the problem with every little leaguer getting a trophy, even if they can’t catch a baseball. It is pure blanket bias, with no basis in reality. It is impossible to get the judges to open up their minds enough to accept that it is remotely possible that the cop is lying.  They refuse to let the jury even have the opportunity to consider that and instead prefer to take away my client’s constitutional right to cross examine their accuser, a right that goes all the way back to the Magna Carta, but which magically evaporates when the witness is in uniform. It is pathetic.

In one especially blatant case, after I was shot down on question after question about different reasons the cop might have a motive to skew his testimony against my client, the one he referred to as a “puke” when talking to me out in the hallway, the one he is so obviously biased against, I finally asked, “Officer, are you biased in any way against my client?”


Seriously? That is blatantly wrong. There is a stack of cases a mile high that say I have a constitutional right to ask a witness that question and both the prosecutor and judge know it. But away they go anyway. They got that cop’s back. It makes me sick to my stomach.

(Ironically, in that case I managed to persuade the judge that his ruling was wrong and to tell the jury that it was wrong. Ultimately my client, who had been caught red handed with twelve pounds of illegal drugs in his car, was acquitted, largely because of the way this issue was mishandled, which caused the jury to look more critically at the prosecutor. So, it can backfire sometimes.)

After experiences like this I take a special delight when I see some goober detective wearing a wife beater and cut offs jump out of his pick up and threaten to blow a hole in some poor guy’s head because of a minor traffic violation. An incident that no doubt I would have been scolded for even talking about had it not all been caught on tape.

Thanks to iPhones and dash cams it is all becoming clearer. And clearer. Recently we saw a woman, Sandra Bland, essentially sentenced to death for an illegal lane change because she copped a slight attitude after being pulled over. Then the wife beater threatening to blow a hole in some guy’s head because of a similar traffic violation. Then just last week, the latest. A campus cop has now just been shown executing a guy for driving without a front license plate. You just can’t make this stuff up… unless you are Stephen King, maybe. It’s a horror show.

Which is my point. This is a horror show of our own making. But the tide may be turning – finally. It is no longer just me trying to explain the reality of the way so many police really act in real life; we now have video proof. It is becoming impossible to keep denying it.

The fact is that all of these cases have one thing in common: they all involve cops on a power trip, unable to process the idea that someone might actually not suck up to them and do everything they say. Like kids with trophies unable to understand why everything in their lives does not work out perfectly, they’ve become spoiled by all the preferential treatment.

Which is why I was so delighted to read the new Washington State Supreme Court case, State v E.J.J. It involved an obstructing charge, which I have referred to previously as “Contempt of Cop”. Obstructing is often a way for a cop to arrest someone simply for not doing exactly what they are ordered to do, whether or not that order is legal.

Finally. Our State Supreme Court agrees with me. They are fed up. This case involved the brother of a young woman who was being questioned by the police. He stood inside his house, swearing at the officers and refusing their “Order” to close the door and basically stop talking. In other words, “Contempt of Cop.” The Court initially noted, “this case turns on whether the record suggests that E.J.J. was convicted of obstruction based solely on his words.” Then, after a thorough review of Constitutional Principles, they held that the E.J.J.’s conviction must be reversed and dismissed, stating:

“Where individuals exercise their constitutional rights to criticize how the police are handling a situation, they cannot be concerned about risking a criminal conviction for obstruction. Such a conviction is not permitted under the First Amendment.”

I admit, it’s nice to know that I am no longer alone. No longer the lone voice in the wilderness, being told to stop criticizing cops for misbehaving. The most powerful judges in our state agree with me. I like to think of that as a nice place to start.

Even after all these years.


Before we start, I have a small secret to share. Those of you who regularly follow this blog will have noticed that I sort of disappeared the past few weeks. That’s because I was having open-heart surgery and recovering. Recovery is going OK, but it sort of took the wind out of my sails for a bit. I mean, it’s hard to get too excited about Supreme Court opinions, no matter what they involve, when you are looking at life and death issues up close and personal.

Which is why I’d like to thank John Oliver for helping me to get back in the saddle. His recent piece on Mandatory Minimum Prison Sentences (i.e. “mandos”) hit every mark and has motivated me to chime in.

I’ve been complaining about not only mandatory minimums per se, but also about the impact of predetermined range sentences for decades now. I remember when the “War on Drugs first started and I was a young smart aleck Public Defender in Seattle in the 80’s. I used to enjoy standing at the front of the courtroom during breaks, crowing to the prosecutors (who all thought I was crazy) that I was happy to accept their challenge and fight back against their silly war. I was able to back that up since we went to trial a lot more in those days, largely because the Government had not yet perfected the complete destruction of Due Process eventually wrought by mandos and their ilk. Now going to trial can be an almost impossible choice for Defendants.

I liked to point out then that prosecutors were destroying the criminal justice system by using the sentence grid to force people to plead guilty; they used their power to pick the charges and the resulting automatic sentences, taking away the judges’ power to be judges and decide fair and just sentences. I tried to tell them that these sentences served no purpose since none of my clients had any idea what the sentences were before they committed their crimes. Hence they could not possibly have any deterrent effect. I used to say that they should take out full-page ads in the paper to explain the sentences so people knew what they were. Nobody wanted to listen to me.

So here I was, thirty years later, listening to Mr. Oliver make the exact same points. Déjà vu all over again. Here are some of the most important observations he made:

1. Circumstances Make a Difference

They do. This is why it is important to look at everything that happened in a case before deciding what sentence to impose. This can go both ways. Bad crimes get long sentences and less serious crimes get less. It is not one size fits all sentencing, and it requires a participating judiciary to make it work.

With mandos, one size fits all. Just plug in the drug quantity and maybe one factor, such as there was a firearm somewhere, practically anywhere, and the sentence is MANDATORY, no exceptions. Never mind if the firearm is an antique rifle hanging on the mantle that has not been fired in decades, or that the drugs were rather benign (like pot, which has long been treated the same as heroin or cocaine by the Feds, something hopefully we now all realize is a total joke). Mando is mando.

The judges are not allowed to consider the circumstances; they are forced to sign the sentence on the dotted line, a line created by the prosecutors when they decide the charge. This is the most serious problem.

2. Separation of Powers and The Right to Trial Are Good Ideas

Our Founders were geniuses when it came to creating a new form of government. Too bad that so many are constantly trying to subvert their efforts. They thought it would be a good idea to spread the power of government around evenly between the judiciary, executive and legislative branches to keep things balanced and fair. They were right.

Mandos are wrong because they circumvent this, in more ways than one. First of all, we have situations like the one described by John Oliver where a judge was forced against his better judgment to impose a 55-year sentence on a defendant who sold a small quantity of weed when he also had a gun around. The sentence was the same that an aircraft hijacking terrorist child rapist might have received. Does that seem fair and balanced? The judge had no choice because the prosecutors had decided to proceed with the charges that required a mandatory sentence, forcing him to impose that. In other words, the prosecutors took away the judge’s discretion to be a judge and imposed their own will in its place.

This is, without a doubt, the most horrible consequence of these sentences. They give the prosecutors all of the power to determine what sentences should be imposed. All the prosecutor has to do is figure out what crime to charge and they can tie the judge’s hands when it is time to impose sentences.

But it goes further than that, something touched upon by Oliver when he played the Jimmy Smits clip showing how cops extort cooperation out of people by threatening to charge them with crimes that require a mando. This happens in so many cases every single day it would make most people’s heads spin.

I spend a significant amount of my professional life telling people that if they do not take a plea bargain the prosecutor can simply change the charge and get either a mando or higher sentence range, which can prevent the judge from dishing out a less harsh sentence. In practice this varies a bit depending on whether the case is federal or state. Typically, especially in federal court, we talk to our clients about the risk of going to trial and risking a mando of ten or fifteen years or more, versus pleading guilty to a recommendation of much less than that. It’s not really a fair choice. The right to trial does not mean much when that is the choice.

3. Racial Disparity is A Big Part of the Problem

We all know that drugs impact all races, but, as I have pointed out in other posts the impact of the criminal justice system reaches much more deeply into the African American and Hispanic communities. In reality, it means that the vast majority of my clients looking at mandos are people of color, even though the drugs they sell are frequently consumed by Caucasians. That should speak for itself when it comes to fairness.

4. Criminal Conspiracies: The Best Way To Do Time For Someone Else’s Crime

This was not emphasized by Oliver, but it was touched upon. One Defendant had been a minor player in a larger conspiracy, for which she was sentenced as if she had been the Kingpin. It’s the law, unfortunately. Criminal Conspiracy is the secret due process destroying weapon in the Government’s arsenal when it comes to sending people away on disproportionate sentences. It means that if you carry a bag across the street for someone who is part of a vast criminal enterprise, you can be punished as if you had done everything everyone else in that enterprise ever did, not just for what you did. With that threat on the table most people just give up and take the blame for the crimes committed by other members of the conspiracy, even in cases where they have never met those members or even knew they existed.

What gets lost in this process is due process itself. Jury trials become a luxury or worse, a huge risk, like playing Russian Roulette with three bullets. Lose and all hope is lost. Prosecutors have not only taken away judges’ ability to impose an appropriate sentence but have also taken away the Defendants’ constitutional right to be presumed innocent and go to trial. This is why our own Supreme Court calls this federal system a System of Pleas. 

Simply put, this is wrong. It’s more than wrong, it’s unconstitutional. I’ve been railing against this unfairness for years. Typically I was told, “Well, who cares? They’re all guilty anyway.” I cared. I cared because I had this naïve idea that the best way to determine guilt was to subject the evidence to close scrutiny. Scrutiny by a neutral jury who had the benefit of hearing both sides of the story, not just what the prosecutor thought. Now people are finally getting a clue. It’s about time.

Unfortunately it’s about time served in prison for many of those whose lives were ruined when they fell under the draconian sentences. It is high time we reexamine the people who are currently incarcerated under these sentences and look closely at making new laws abolishing mandos retroactive, so that people serving time for life might have hope. It’s the right thing to do.




I wrote this piece some time ago but never got around to posting it. However, given the fact that so many people were interested in the workings of the Supreme Court when I blogged about that last week, it seemed especially relevant. Lots of people apparently want and need information about the Supreme Court so that they can weigh in on what they think about the work that goes on there.

The fact is that thousands of people read my little old post about the Supreme Court, but only 500 or so of them would ever be able to actually see the Court in action, and they would have had to travel to Washington D.C. and wait in line for days to be able to be there. In today’s world of instant video coverage and tweeting from accident scenes, that just seems wrong. It is at least out of keeping with the times.

I realize that watching the Supreme Court on TV is not exactly a red-hot blog topic. The issue of why the Supreme Court arguments are not broadcast for the public to view may be more boring than cops shooting people or Jihadi terrorists or kids being harassed by creeps in parks, but it is at least as important. More so really.

Why does the highest court in our land continue to refuse to allow cameras into their courtroom? What gives? What makes them so different than the Kardashians and Amish Gangsters and idiots jumping off of houses? Well, strike that. Silly question, I know. But you get my point. You can see just about anything on TV, so why not the most important court in the land?

Seems to me that in a free society we should all get a chance to see our wheels of justice spinning at the ultimate level. Why on earth shouldn’t we? Is it that we are not to be trusted forming our own opinions after we see how the process actually works? What gives them the right to deny us access anyway? We own the building, after all, not them. How come they get to freeze us out?

Ostensibly, one reason has to do with wanting to prevent showboating by the Justices that might occur if they knew they were going to be televised. That argument makes about as much sense as sitting around all day watching the Kardashians parade in front of cameras doing nothing. But we are not talking about watching a bunch of dull D Grade bad actors; we are talking about the court that can potentially profoundly impact our lives. Surely the justices can avoid falling into the Kardashian “look at me” mindlessness vacuum. They actually have jobs and do work. That is what we want to watch, not grandstanding.

We should be able to see them working, which begs the issue: we can already hear them. How could it possibly change things if we can see them too? Are they worried about their hair? Let’s face it. It might actually lead to more citizens having a clue about how our government actually works (or not). People tend to watch TV more than they read convoluted written opinions. At least they would have some clue about how the justices arrive at their conclusions.

Maybe THAT is what they are afraid of. I suspect so. Especially for the ones like Clarence Thomas, who, without cameras in the room, can more easily hide the fact that he has scarcely uttered an intelligent word during oral argument sessions in almost 25 years (if ever). Harder to see that when all we have is audio recordings. The sight of him over there reading his comics, or whatever it is he does, might get some people’s attention. They might think twice before supporting a nominee who would rather be in his office watching Kim and Chloe prance around than doing his job.

As for showboating: Scalia anyone? Heard of him? Look up self promoting egoist in the Dictionary and there’s his photo. It is interesting that in his dissent to Justice Kennedy’s opinion in the recent Gay Marriage case Scalia said, “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag.”

What makes this quote so interesting is that Scalia is already hiding.  He is hiding from the public and their close scrutiny, not of what he writes (or I should say what his clerks write for him to embellish), but rather of how the court actually conducts business. What has he got to hide?

When questioned about this Scalia said he thought only C-Span junkies would want to watch. So? Let them.

Kennedy said that he thought an “insidious dynamic” might be created, in which justices might be “saying something for a sound bite” or ask questions “to grab a headline.” Can he read? For example, some of the Scalia’s quotes about him? Like needing to put a bag over his head if he wrote like Kennedy? Is a comment like that any less likely to create an “insidious dynamic” or “grab a headline” because it was not videotaped? They are already nasty to each other. Video is not going to make it worse.

Scalia attacked Kennedy personally in his dissent on the Gay Marriage case: “The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so. Of course the opinion’s showy profundities are often profoundly incoherent.”

It is difficult to imagine how Scalia could engage in any more grandstanding or cause any more of an insidious dynamic. If I tried to talk like that in a public courtroom the prosecutors would move to hold me in contempt and I’d probably draw a bar complaint. So, having them video taped might in fact help reduce that ugly dynamic. It is hard to see how it could be worse.

Thomas, the one who does not speak or ask questions, said video coverage would compromise his anonymity. It isn’t hard to see why he wants to remain anonymous. He is probably embarrassed of his “work.” Souter, since retired, said that a video camera would have to “roll over my dead body” before it would be allowed. Who cares what he thinks? He quit.

The only people in America who seem to believe that video in the Supreme Court is going to be a bad thing are the same people who are hiding from it, the Justices themselves. The rest of us deserve better. We deserve to see how they work.

So many people who wrote comments on my post about the Supreme Court had misconceptions about how it really works.  That is a post for another day. However, I have to believe that if people could watch the Court at work they might have a better understanding of the process, and if they do, they might not be so upset about it. Or they might be more upset. But, after all, is that not the whole point of free speech? To be free to watch and listen and think and say things freely and to reach our own conclusions, rather than be spoon-fed information from those in power who claim the right to control what gets seen and what is hidden? Especially when the ones hiding so that they can protect themselves from public scrutiny are the same ones who are supposed to be protecting our right to be able to conduct that scrutiny..?

It all seems a bit backwards to me.


I have been following the Confederate Flag issue closely and resisting the temptation to comment. However, I wanted to share a true story that happened to me to put this issue into perspective. But before I do, I also wanted to state my position on this. To me, this whole thing is about War. Period. Don’t get me wrong; I totally understand the debate about whether the flag represents the Glorious Past of the South or whether it symbolizes the Evils of Slavery. I also understand that there are differences of opinion about the War and what caused it. I get that some from the South see it as a rural agrarian culture going up against an Industrialized North, and to some extent I can sympathize with that view.

But, make NO mistake. Sorry, Jonny Reb. I’m a dyed-in-the-blue-wool Yankee. Born and bred. Born in Peoria, Illinois, smack dab in the middle of the “Land of Lincoln”, just like it says on every license plate in my hometown (even if he was in fact born in Kentucky, which used to confuse all of us when I was a kid, since they were the enemy, something I will get to in a minute.) For virtually every school field trip we went to nearby Springfield to see Lincoln’s Tomb and New Salem, the historically reconstructed town Lincoln moved to from Kentucky when he was just 22. Plus, Abe Lincoln was my personal hero; a tall lanky geeky guy who was into reading and school, famously walking barefoot in the snow six miles to get to school and reading his school books at night by the light of the family fire in his little cabin’s hearth. Just like me. (Well, maybe not the barefoot walking and family cabin part… but I did like to read and I was a bit of a geek, unsurprisingly.)

Worse yet, I am a very proud descendant of Connecticut Yankees who came to this country in the 1630’s. They fought the Brits in the Revolutionary War and worked with the spies who are now featured on that TV show “Turn”. They hung out with the likes of Jefferson and Franklin; two of my uncles went to Paris to get help from the French for the War Effort. The portrait of one of them, Jeremiah Platt, now hangs in the Metropolitan Museum of Art in New York City, right next to “Washington Crossing the Delaware”. So, we go back. Way back. Which is why I prefer to see this whole issue as a matter of War, and set aside the political stuff for a minute. I mean, I am not so sure that Jeremiah and his brother, my Great Great Great Great Great Grandfather Ebenezer, another Patriot, didn’t have slaves. I am forced to assume that they probably did.

So, let’s talk War for a minute. Pure and simple. Or not. Which brings me to my story, a very true story.

Several years ago, when I was ‘footloose and fancy free’, I went to stay with a friend who lived in the South. She lived in a rural area, surrounded by farms near a little Southern town. I stayed there for a week with her family. Her parents were very Southern, religious and conservative. I kept quiet when they were talking politics, in part because I had trouble understanding them. They had such strong Southern accents.

One day there was some sort of War Anniversary happening. I forget exactly what it was, however, I do remember how excited the family all were about it. It was a BIG DAY. We all got ready as they chattered excitedly in their thick accents at breakfast about the day’s big events, which featured, first and foremost, a giant reenactment in a little town nearby, where everyone would be dressed to the hilt in real live uniforms – just like those worn in the War.

As we drove towards town the father, a staunch patriot and conservative, talked volubly about the “Great War” and the “Glory of the Cause”. I had some trouble following, not only because of his accent, but also because I did not get what was so great about their cause. I had some issues with it. I mean, they lost, right? They were the bad guys, right? What was he talking about, anyway?!?

But on and on he went. Please remember, I am NOT making this stuff up. I say that because it got worse and worse, the dad nattering on about how bravely and valiantly his side had fought in ‘The War’. “Against US!” I thought. I mean, give me a break. You are celebrating how bravely your guys tried to kill MY people. I was a disgusted, quite frankly. Since when do the bad guy losers get to brag about being valiant and brave and courageous? I know the victors write history. But isn’t that the point of winning? Isn’t that one reason we fight? To win and put down the bad guys? Or, at least, in theory. It can get very confusing when you really look at it.

Which is why I tried to have an open mind. But I just couldn’t. Because just as I was really trying to understand his point of view, no matter how wrong I thought he was, we arrived in that small town with the reenactment gearing up in full swing. And what I saw made me want to puke. Not just out of disgust, but also out of fear.

There they were. The brave and virtuous losers. All dressed up with nowhere to go. Marching around the town square in their uniforms. I remember telling my dad about this later. He was appalled. He was disgusted. He practically came unglued. Because, you see, he had been on the other side. Fighting. His two closest friends had been killed by these guys. No, he was not some freak of nature, living to be 152.  He was born in 1926. He was 19 when he was here in the Army.

For, you see I was in Germany. The South. Where the Nazis came from, like my friend’s dad. His great and glorious boys in uniform were Nazis. And there they were, reliving their glory days. Of course one thing that was nowhere in sight was a swastika, since it is illegal there. Still, it was enough to make me want to barf all over them.

Which is precisely how I feel now, when I hear people glorifying that bunch of treasonous traitors, the Confederate Army.  Buncha criminals, if you ask me. Since when is it glorious and great to commit treason and take up arms against your own country?? Am I missing something here? Do these guys celebrate the Black Panthers or the Symbionese Liberation Army with equal gusto??  What on Earth are they all talking about???  Not to mention… THEY LOST!

Give me a break, Johnny Reb. Get over yourselves. You are bunch of losers. There is nothing glorious about anything you did. You are traitors who committed treason and tried to kill my people, just like the Nazis. And for that reason alone, nothing more required, on behalf of my Yankee ancestors, I hereby DEMAND THAT YOU SURRENDER YOUR FLAG. Like any other good loser.

Only they aren’t good losers, are they? They seem to think they won. Guess what? They lost.

End of story.

Supreme Court Broken2

In a word… uh, NO. I try to avoid blatant political content on this blog, for a huge number of reasons; these range from simple self-serving concerns, such as I don’t want to lose potential clients just because they disagree with me about politics, to more complex factors, as in I have no clue what to think about political issues most of the time.  I’m just too open minded and independent for that.

Frankly, it would be silly to decide which lawyer to hire based on their political views. Bad lawyers come in every possible flavor, and so do good ones. Just look at David Boies and Ted Olson, two of the best lawyers in America, from polar opposite ends of the political spectrum, but also close friends.  As it should be. They argued against each other in the U.S. Supreme Court on the incredibly significant case of Bush v Gore. They have since joined forces to argue in favor of so-called “Gay Rights.” So go figure.

Which brings me to the question about the Supreme Court: Is it broken?

In order to answer that question, let’s look at some history. There is a lot of it, so I’d like to focus on the role that the political appointment of justices has played in the past.

Dwight D. Eisenhower, World War II Hero and Conservative Republican (although today he would probably be viewed as a wild eyed “leftie”— after all, it was he who first coined the term “Military Industrial Complex”) was once asked what his biggest mistake had been as president. He answered that it had been the nominations of Justice Brennan and Chief Justice Earl Warren.

When he had appointed Warren in 1952, Eisenhower said, “He represents the kind of political, economic, and social thinking that I believe we need on the Supreme Court.” Warren went on to author some of the most liberal opinions in history, including  Brown v. Board of Education (1954), which overturned the famous 1896 “separate but equal” ruling in Plessy v. Ferguson with regards to public education.  Sound familiar?

Eisenhower was later quoted as saying that Warren’s appointment was “the biggest damned-fool mistake I ever made.”

Last week saw two major Supreme Court decisions. Well, actually there were three, but normal people have no idea about the third. I’ll get to that third one, don’t worry. It is arguably more significant in many ways than the two famous ones. It is just that it is too complicated for journalists to understand and explain to people.

The first, King v Burwell, upheld Obama’s favorite law, the Affordable Care Act. That decision was authored by Chief Justice Roberts. The second, Obergefell v. Hodges, made Gay Marriage legal in all fifty states. That opinion was authored by Justice Kennedy.

Before I get into these opinions I want to return to the topic I started with and explain my political approach. The only thing I enjoy more than annoying Conservatives is annoying Liberals. I like to talk about ideas, not ideologies. Ideologies, in my humble opinion, are for morons who can’t think for themselves. Instead they mindlessly regurgitate whatever they are spoon-fed from above. They are basically sheep.

I like to be more of a wolf, circling the field, looking for weak positions to attack. Although, really, I much prefer to morph from Wolf to Sheepdog at the last minute, not so that I can corral the sheep, but rather so I can attempt to show them how much fun it is out here in the field, running wild, encouraging them to break free of the flock and come play with me. The few who do usually only get far enough to figure out that the pasture is surrounded by cliffs, at which point they turn tail and run back to disappear again into their group. Occasionally one or two actually make it to the cliffs and fall into the abyss below, the one called “independent thought”. Me? I’d much rather risk falling off a cliff than be stuck jammed in with a bunch of smelly stupid animals. Which brings me back to these two controversial Supreme Court decisions.

I laugh when I hear the Conservatives expressing their outrage at these opinions by calling the justices who wrote them radical liberals. Nothing could be further from the truth.

Kennedy, who wrote the dreaded Gay Marriage opinion, was appointed by the Mythical God of the Right, Ronald Reagan. Ever heard of him? Roberts is one of the most conservative appointments we have ever had. Following years of right wing diatribes by the Uber Conservative former Chief Justice, Rehnquist, it was a sad day for my liberal friends when George W. Bush appointed Roberts to take over as Chief Justice. The same liberal groups who opposed Roberts for Associate Justice declared him even more unfit for the job of Chief. However, the Conservatives were holding a Love Fest over him: “He will be an excellent chief!“enthused then Senate Majority Leader Bill Frist (R-Tenn.)

Roberts wrote Citizens United, for crying out loud, which is arguably the most politically divisive Supreme Court opinion written in decades. Until last week, that is. It is a favorite beacon of First Amendment Freedom for Conservatives and a final Coffin Nail of Democracy for Liberals. (Personally I think it is horrible to see giant money being spent to buy elections… for EITHER SIDE, but I don’t want to get into that here.) Now Conservatives are calling this former Hero of the Right “our national ‘umpire’ … playing for one of the teams,” who “is willing to join the court’s liberals in this linguistic farce.”

I must conclude that very few people understand how our government is supposed to work. Which is really too bad. Because, in spite of all the ups and downs, it is probably the best system ever devised. So, some credit to our Founders for thinking it up is definitely in order.

Our system of Government is based on the idea of Separation of Powers. That was a huge departure back in the 18th  Century, when most countries were still controlled by monarchies. Even those with limited representational governments, like England, did not evenly distribute power. Instead they put all of their eggs in one basket, and still do. In the U.K. the parliamentary system means that the Prime Minister is determined by who wins the majority in Parliament. Not only are their branches of government not separate, they are basically joined at the hip.

In the United States, the idea is that the three branches of government act as checks and balances to one another, each acting independently to ensure that no one branch gets too much power. Early in our history, the judiciary was the weakest of the three branches of government. Chief Justice John Marshall established the principle of judicial review in Marbury v, Madison by declaring an act of Congress unconstitutional. This greatly strengthened the judiciary. Even though the Supreme Court only exercised this power one other time prior to the Civil War (Dred Scott v. Sanford), the establishment of judicial review made the judiciary more of an equal player with the executive and legislative branches.

The judicial appointment process was designed to ensure that the separation of powers doctrine functioned over time. The Framers wanted to balance individual accountability against the risk of tyranny by breaking up the appointment power between the other two branches of government, the Executive and Legislative branches. Hence the Appointments Clause of the U.S. Constitution allows for the President to appoint justices, while Congress, in this case the Senate, provided the balancing check and consent to the President’s choice by confirming or rejecting the nomination.

In practice what this has meant, as described above, is that the Justices don’t always turn out to be what they seem to be at first. Apparently the Framers knew what they were doing, even if biased politicians now complain that they are not getting what they bargained for. The fact that they are not is PRECISELY what the Framers wanted. It keeps things balanced. Duh.

The best example of this occurred last week in the most important case that you will NEVER hear about in Big Media, because it is way to sophisticated for them. Ironically, Justice Scalia, the one who bashed Roberts for his Gay Marriage opinion, came out in favor of making it easier for dangerous criminals to avoid long prison sentences in Johnson v. U.S.  He did this by finding the residual clause of the Armed Career Criminal Act “void for vagueness”.

“Huh?” I hear you saying.  Frankly if you expect me to fully explain that to you you will need to retain my services. Long story short, if a criminal defendant has three or more earlier convictions for a “violent felony,” the Armed Career Criminal Act increases his prison term to a minimum of 15 years and a maximum of life. In declaring the Residual Clause that is used to define violent felonies void, Justice Scalia, a staunch law and order Conservative, ruled that the Government violates the Due Process Clause when it takes away someone’s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.

Anyone catch that on CNN? R U Serious right now? Nobody on their staff, with the possible exception of Jeff Toobin, would have any clue what any of this means.

But I’ll tell you what it means. It means that while the pundits were wasting time going after Roberts and Kennedy for their so called radical left wing views, they totally missed their darling right winger, Scalia, issuing an opinion that makes the Gay Marriage and ACA cases look like parking citations. You can get upset about health insurance or two men holding hands or instead you can worry about dangerous criminals being released from prison early so that they can shoot you. Take your pick.

So, there you have it. The Supreme Court is alive and well and working just as it was always supposed to. If someone tries to tell you differently, ask them to explain Scalia’s opinion in Johnson to you. I wish you “Good Luck With That”.