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 insure 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”.


Please tell me I’m not the only one. I feel a bit guilty. A lot guilty to be honest. I mean, I know these guys are monsters. Especially Richard Matt, the one who killed and disemboweled an old man. David Sweat, also a convicted murderer, ain’t no sweetheart either. But I couldn’t help but get a little excited about the news when I saw the headline: PRISON BREAK FROM MAXIMUM SECURITY!

Three of my all time favorite movies are “The Great Escape”, “Escape from Alcatraz” and “The Shawshank Redemption”, a favorite TV series, “Prison Break” (at least for the first two seasons). Who can’t remember cheering for Steve McQueen as he gunned his motorcycle, gathering speed to jump that long barbed wire fence as he attempted to make his getaway from the Nazi POW camp, Krauts looking on, powerless to stop him, only to crash and be brought back once again to sit in the “Cooler” and toss his ball on the wall. Ah, prison life is the life for me. To escape from of course.

But I know it’s not just me. Just look at the language being used in the initial reports:

“A daring weekend escape from a New York state maximum-security penitentiary”

“The escape of two prisoners from a maximum-security prison has all the makings of a hit movie plot – a seemingly impossible escape, insider help and few concrete leads on the escaped prisoners’ current whereabouts.” 

And as the details started pouring in it just kept getting better:

The convicted killers escaped sometime after they were last seen at bed check Friday night. In their place, the pair left decoys to trick guards into thinking they were asleep in their bunks — and a yellow sticky note with a smiley face on it. It read, “Have a Nice Day!”

Close up of the note left on pipe that Richard Matt and David Sweat used to escape Clinton Correctional in New York.



“In a prison-break likely to draw comparisons to the film The Shawshank Redemption, two convicted murderers have escaped from a maximum-security facility in upstate New York by cutting through steel walls, shimmying through a steam pipe and emerging from a manhole on the outside.”

Detailed descriptions and photographs of their actual escape route are all over the airwaves, complete with diagrams of their plan. This looks more like Escape from Alcatraz than Shawshank Redemption, to me. 

To make it even more dramatic, according to reports, the pair apparently spent a month roaming around the ancient prison catwalks alone at night, the guards oblivious, until they could find a way out of there. Just like “Escape from Alcatraz”.

I mean you just can’t make this stuff up. Oh wait, that’s backwards. Theoretically you can only make this stuff up. Because it’s not real. Only this time it is.

I immediately said, “inside job” to my law partner the second that I heard they had used power tools. Not something normally lying around your average maximum security prison cell, even if they were “Honors Inmates”, a fact which merits its own separate post.

One interesting thing for me personally is that the prison is just outside Plattsburg, named for some of my ancestors centuries ago, their old stomping grounds. Funny how I keep seeing connections with my family and places in the news recently, like Fergusson, Missouri.

But my personal connection goes a lot deeper than that. I have spent time in jails and prisons from the little Black Hole of Calcutta excuse for a jail in Saipan, in Micronesia, to a dirt floor cell in the boonies of Morocco, to the largest, scariest prison in Europe, the one with “H Block”, where they held all the IRA guys, Wormwood Scrubsin London. Not to mention every jail or holding facility in Western Washington.

No, I haven’t been in that much trouble. I’ve been in these places working, meeting with clients. Well, except for that place in Morocco, where we were briefly detained for the crime of “hiking in the mountains.” We had to bribe our way out of that one. Which brings us back to how these guys escaped: someone working on the inside was dirty.

You learn a thing or two about prison security when you regularly go into and out of this many lock ups. Simply put, it’s not what it seems. I remember the public’s shock and outrage when Richard Speck, the infamous nurse murderer, was featured in a video showing him snorting cocaine, having sex and bragging about his fun times in prison. He summed it up, “If they only knew how much fun I was having in here, they would turn me loose.”

I was personally outraged because I distinctly remember being afraid to go to Cubs games in Chicago when I was a kid because we were so afraid that this guy would escape and kill us. He had traumatized the entire State of Illinois with his crimes. But I was not surprised when I heard his claims. That’s because I know how it really works. 

When I worked in London, back in the 80’s, I went to “The Scrubs” about every other day. With my raggy red hair and beat up Harris Tweed, the “Screws” gave me a close look over whenever I came and went, especially with half the IRA locked up inside. Our clients were all in “Max” so it took about a seven giant locked gate trip inside before I got to where I needed to be. But somehow one of my clients was caught with a kilo of Black Afghani Hashish, deep inside the cell block, dealing to the other inmates. Where and how did he get it?

Simple. A corrupt guard looking for a little supplement to his paycheck. As I drilled down on that case, I discovered something. There is an entire world inside, a completely hidden culture of favors and bribes and money flowing in from the outside to make life a little more bearable for the customers. Because that is how many guards see these guys. Literally a captive audience who have a high demand for some of their “favorite things”. Like weed and coke and access to cell phones, as in this case, to plan their escape.

So I wasn’t surprised one bit when they identified a prison worker who was helping the bad guys escape. I have no idea who she is, but I know she is probably the type who is easily conned, like some of the prison officials in that show Prison Break. I’ll bet she is lonely and has low self-esteem and suddenly these rather larger than life figures were showing an interest in her… she was only too happy to help, until she apparently had second thoughts about helping them drive away and left them stranded.

You may be wondering what my point is by now. To be honest, I don’t really have one, for once. I am just sharing my experience here. Because it is really fascinating to know that there is an entire world that most people know nothing about that I have first-hand experience with.

I will never forget my all time favorite experience along these lines. I was deep in the bowels of the Old Bailey, in London, the crucible of our modern criminal justice system. The dungeon is just that, a dungeon. You half expect to see Iron Maidens lining the walls or a “Rack” set up and ready to go. Instead you got smoke filled rooms and barristers running around in their wigs and gowns, prepping their clients for court.

We were late for our hearing after spending too much time with a particularly difficult client. He was scheduled to appear in the main courtroom, the one where famous folks from Oscar Wilde to the Yorkshire Ripper had once appeared. At the last second the guard grabbed my arm.

“This way,” he winked, pointing to a tiny doorway leading to some ancient stone steps beyond. As I approached, my client and trusty barrister behind me, (I was a “Solicitor’s Representative”, but that’s another story) I looked up the long, stone stairs into the gloom, a small light shining down from above. It was just enough light to make out the deep grooves, worn into the stone by centuries of shuffling prisoners, dragging their tired bodies up the narrow stairway. I couldn’t help feeling that poor Oscar’s ghost was right there with me, slowly ascending to emerge into the light.

When we reached the top the door opened, and suddenly I was blinded by the light, inside the cavernous Courtroom One, standing smack dab in the middle of the floor, surrounded on all sides by spectators looking down from the balcony at me, wondering if I was the Defendant, no doubt. For I was in the “Dock”, the little cage where Defendants are held during the proceedings, not allowed to be within speaking distance of their lawyers. I felt trapped. And scared.

But fortunately, a smiling guard brandished his ancient set of fancy keys and opened the gate, eyeing my client carefully to make sure he didn’t try to bolt. I was free. Maybe that is where I got this fascination with prison escapes…

Probably not. It was more Steve McQueen and Clint Eastwood, to be honest, but it does help me understand what was going on in New York. Now I just hope they catch these guys, before they can do any more damage. I mean, they aren’t in a movie at all.

Too bad the Media is so easily confused about that.

Rahim's Alleged Weapon

Although it is never a happy event when someone is gunned down, at first I was almost pleased when I heard the news about the Boston Police ‘taking out’ what appeared to be a dangerous terrorist about to commit some heinous violent crime. But then I did some research. And, as usual, once I had a chance to investigate and actually think about the available evidence, I was confused, which makes me curious about what other people think.

There it was all over CNN.  Dangerous ISIS terrorist pulls giant knife on Boston Police, who were innocently just trying to talk to him, before they are forced to gun him down in self defense!  Wow. Finally. A righteous example of police protecting the public.

Or not, as the case may be.

According to initial reports, Usaama Rahim was shot while waving a large military style knife at them in a threatening manner. Apparently he had been under FBI surveillance for some time on suspicion of terrorist activity, although at first it was not clear exactly what all that entailed. There were some strange details in the initial report; such as the fact that an arrest warrant detailing the terrorist threat evidence had been filed Wednesday afternoon. Rahim was shot Tuesday morning and died shortly thereafter. It appears he was dead before the arrest warrant was filed. Odd.

I believe this affidavit must have been prepared in relation to a second suspect, and not for the dead Rahim, in which case the focus would not have been primarily on Rahim. The fact that the media did not clarify that adds to the confusion, since an important point here is that apparently the police had neither a warrant nor probable cause to arrest Rahim when they approached him. It is very unclear at this point and needs to be investigated further, like many of the conclusions being issued so quickly about this matter. At least that is the approach any decent criminal lawyer, whether prosecution or defense, would take.

There was a video of the shooting, which authorities have been showing to Muslim community leaders in Boston to refute Rahim’s family’s claim that he was shot in the back while talking on his cell phone. It apparently shows that he was not shot in the back. However, the jury is still out on that. The reviews from those Muslim leaders were mixed. According to the New York Times: 

“A group of Muslim leaders who also saw the video later issued a statement that said the video was taken far from the site of the episode and did not clearly show everything that occurred. “It does not appear he was shot in the back,” the statement said, countering the family’s assertion. “No weapons could be identified in the video; neither a knife nor a gun.””

This video needs to be made public as soon as that is appropriate given the ongoing investigation.

Still. Here we had what seemed to be a “lone wolf” ISIS terrorist, intent on beheading police officers, according to the media.

Who could blame them for acting in self defense?

The reports also said that he was planning to behead Pamela Geller, the person who organized the “Draw Mohammed” event in Texas that resulted in a definite terrorist attack, during which the two gunmen were killed after a security officer was shot.

People may disagree about what they think of Ms. Geller. Some see her as a First Amendment Hero, protecting the right of free speech. Others see her as a dangerous antagonist or worse, an anti-Muslim bigot. My main thought about her is that she was either aware that she was creating a strong possibility of innocent people being violently attacked in Texas, in which case I sure hope she warned the poor local police officers who were risking their lives to protect her, or that she did not realize she was exposing the guys who were almost killed to violence, in which case she would be totally irresponsible (I’m just glad I wasn’t working security that day.)

However, any reasonable person would have to agree that beheading her is a completely immoral and unjustifiable illegal violent act. It’s called First Degree Murder in most jurisdictions.

Then, while doing my research about this case, I came across a piece written by Glenn Greenwald, that perennial thorn in the side of his more mainstream counterparts. Greenwald, you may recall, is the reporter who helped Edward Snowden “out” the NSA. Again, think what you will about him, he is a very thorough reporter. Like me, he thinks things before jumping on every bandwagon that passes by.

Greenwald was taking a different approach to the story, as usual. First, instead of branding Rahim as a dangerous ISIS Terrorist he was calling him a “Black Muslim”. That gave me pause. One of my very best friends is a Muslim. And he is a very Conservative Republican who hates terrorists as much as anyone. Some of the most significant icons in modern American culture, such as Kareem Abdul Jabbar and Muhammad Ali are Black Muslims. So when I read that term, it made me feel automatically less biased than when I read “ISIS Terrorist!”, which makes me afraid. Very afraid. Especially where knives and beheadings are mentioned in the same paragraph.

Greenwald claimed that the original Boston Globe report had erroneously reported that Rahim had a machete (rather than a military knife), which may sound more menacing to some. However, being me, I researched Greenwald’s research in order to try to be fair and balanced, and discovered that the Globe article apparently said “military knife” not machete. They may have edited that piece online, but I only have time for a certain amount of research. I have another job, after all.

Greenwald went on to say other things that stood out from the mainstream reporting. He said that they were reporting completely unsubstantiated information provided by the same police agency who had shot Rahim. He criticized one of the original reporters on this story, Cheryl Fiandaca, who he said was biased because she had previously been the “official spokesman for the Boston Police Department.”

If nothing else, he makes an interesting point. He also pointed out that she is the ex-wife of former Boston Police Commissioner Bill Bratton, although my own wife would quickly take him to task for that one. She hates it when people pigeonhole the wife because of who she is (or was) married to. And she is a world-class divorce lawyer, so he wouldn’t want to mess with her. (I should know. We’ve been married almost thirty years.)

More fairly, perhaps, he pointed out that Fiandaca was failing to identify her sources. Given their public positions with the Boston Police Department perhaps that is a valid observation. He goes on to point out that many sensationalist conclusions from Big Media followed Fiandaca’s lead, with NBC News reporting that in essence Rahim’s shooting had thwarted a dangerous sleeper cell about to attack America, with basically zero evidence to back that up. He concludes that all we really know is that another black man is gunned down moments after police first approach him, under circumstances that originated with neither probable cause to arrest nor an imminent threat of harm prior to that contact. The whole thing is uncertain.

Which is my entire point. The fact is that there are precious little facts currently available. Even the video which is purported to clearly justify the shooting is said to be “grainy” and that in the video it is very hard to see any details.

What I would like to see is the video, to begin with.

Then perhaps, eventually once it is safe to do so, the evidence supporting the claims of the terrorist threat. I have no idea what happened. I have not seen a thing. Which is why I am saying we need to be careful before drawing conclusions in these difficult and disturbing situations, something I try to do every day while protecting people’s rights and making sure that they are not tried and convicted without evidence that is both credible and reliable and that has been tested in the crucible of an American courtroom. Something that, apparently, the media does not appreciate. At least that is how it sometimes appears.



Most of us do not want a police state where government officials or police can simply stop you and ask you for your “papers” for no reason.  Yet there is also that righteous indignation about those who “get off” “scot-free” because of “technicalities.” Consider this tension in the context of vehicle stops for minor technicalities. On one hand, no one wants to be stopped on their way to work for failing to follow a perfect vector down the road. On the other hand, we do not want our spouses, children, and friends to be put in danger on the roadway.

Years ago Division One of the Court of Appeals issued what became a somewhat controversial opinion in State v. Prado. You can read more about Prado here or review the opinion in full here. In short, the case concerned a driver who drove across an eight-inch white line by two tire widths while exiting the freeway. The driver was stopped for violating RCW 46.61.140(1) which requires vehicles to be driven “as nearly as practicable entirely within a single lane…” After the stop the driver was charged with DUI. The Court of Appeals ultimately held that the stop was unlawful. It reasoned that the language “as nearly as practicable” does not impose strict liability for minor incursions over lane lines. Ultimately, all evidence following the stop was suppressed. As a result of this “technicality” the charge of driving under the influence against the driver was dismissed.

Prosecutors interpreted Prado as a narrow ruling. The prosecution would argue that minor distinctions would render Prado inapplicable. For example, there is the argument that Prado does not apply to cases that concern more than one incursion over a lane line. Or the argument that even one incursion that is more than two tire widths renders Prado inapplicable. Defense attorneys on the other hand would argue that the Prado holding was broad and not limited to its facts based on language contained in the opinion itself as well as persuasive authority the Prado court relied on. Both sides of the argument would oftentimes pose challenges for Judges who have a duty to apply the law correctly, but also want justice to be served. After all, it might be difficult for any judge to let someone off “scot free” who turned out to be sloppy drunk behind the wheel or in fact committed some other crime. But it can happen. In some cases the law might require it.

Recently, on April 6, 2015, Division One of the Court of Appeals provided more clarification concerning Prado. In State v. Jones, an Anacortes police officer noticed the vehicle she was following passed over the fog line by approximately an inch three times. Each time the vehicle corrected its position with a slow drift. The officer pulled the vehicle over as a result of these observations. The driver was sober, but the police observed a rifle. The driver turned out to be a convicted felon. Accordingly, he was charged with unlawful possession of a firearm.

The driver argued he was subject to an illegal stop under Prado. The state predictably argued that Prado concerned an extremely brief transgression distinct from three incursions. The trial court denied the driver’s motion to suppress based on this argument. On appeal, the court of appeals held the stop was unlawful and reversed. The court explained that the Prado decision did not depend on the fact the driver crossed the lane line once. It clarified that a totality of circumstances analysis applies. Factors such as the presence of other traffic and the danger posed to others should be considered.

But the Jones opinion left open some issues that trial courts will likely continue to wrestle with. In Jones, the prosecution did not produce any evidence that suggested the officer’s training and experience enabled her to suspect driving under the influence. The officer did not testify that she suspected the driver was impaired. The opinion seems to suggest that training and experience in identifying impaired drivers should be considered in evaluating the totality of the circumstances and might tip the scales against granting a motion to suppress. There are a variety of good arguments that defense lawyers can make in response to such a position. However, trial courts will likely continue to wrestle with Prado and its new progeny regardless of the recent clarification. There is no bright line rule in this area.

Next time you are driving, pay attention to the vehicle in front of you as well as your own position on the road. Do you always remain strictly between the lines? Should officers be able to pull you over for one, two, or three incursions over the fog line? Should officers be able to stop anyone for no reason at all? Do you believe that laws (e.g. Prado and Jones) are immoral or wrong because they may require someone who was actually committing a crime to get off scot-free? Post to Facebook and tell us what you think.



When I first heard the news that there was a verdict in Cleveland Police Officer Michael Brelo’s shooting case I was pleased. I thought it would give me a great opportunity to demonstrate what I had been talking about in prior posts regarding these types of cases: Let the Jury Decide, Let the Jury Decide, Let the Jury Decide. Except this case was not decided by a Jury. It was decided by a Judge. Ugh.

A judge trial, more properly called a ‘bench trial’, is rare. Very rare. As in, you almost never seriously consider it in criminal cases. In divorces, at least in Washington State, you are stuck with them. I guess that is because there is no Constitutional Right to a jury trial in those cases, no presumption of innocence, no proof beyond a reasonable doubt. Just two angry former lovers fighting over toasters and pet dogs and who gets to (or in some cases, has to) take the kids over holiday weekends. [Sorry Mimi and SDS, but you know it’s true. As I always say I’d rather handle a rape or murder case any day than a divorce. Much less nasty.]

But perhaps the real reason that divorces don’t get juries is that there is too much emotion involved, too much smoke and not enough flame, thus making it likely that jurors might get “confused by the facts” as my dad used to say. Which is also the only real reason that you would ever want to “waive jury” in a criminal case. Well, that, and maybe also knowing that your judge had a particular bias, like they don’t like prostitutes and the complaining witness (i.e. “victim”) is a prostitute, or perhaps a bias in favor of the police, which is extremely common in the judiciary, especially since most of them are former prosecutors. Sad but true. Check it out if you don’t believe me.

Here, however, try as I might, I was unable to find any inherent bias with Judge John O’Donnell. Nevertheless, I figured that we could still use this case to demonstrate some basic legal concepts:  Jury vs Bench Trials, Felony Murder, Excessive Use of Force and Proximate Cause.

Jury vs Bench (Judge) Trials

As I’ve said, you only waive jury if you are worried that the jurors’ emotions may overrule their reasoning ability due to “bad facts,” or you are playing to judicial bias. While the second reason may be morally repugnant that is irrelevant in my view, as your first duty is to your client. So long as you are not violating any ethical rules you have no choice. In my opinion, not putting your client first is, in and of itself, unethical. I say this in part because nothing I say here is meant to disparage the criminal defense attorneys on this case, who did amazing work and may have taken a daring risk by waiving jury.

The jury is still out on why exactly they did that. I’d love to sit down with them sometime and find out.

Here there is no doubt that they may have simply been concerned that jurors would not be able to get past the fact that there were so many bullets riddling the victims’ car. There were 137 of them, and 49 came from their client. They had a technical defense, that there was a question of proximate cause of death and that the use of force was reasonable. It is easy to see that the jurors might have had trouble getting their heads around those arguments given all the bullet holes.

But as horrible as it sounds, the fact is that Officer Brelo may have been blasting away at two corpses.

If that was the case (i.e. if the prosecution couldn’t prove that it was not the case beyond a reasonable doubt) then I can see why the defense attorneys might want to have a “neutral and detached magistrate” decide their client’s fate. On the other hand they may have thought he was biased in favor of the police or racist and they were playing that darn “Race Card” or maybe he was running for re-election in a pro-cop jurisdiction. I don’t know. Whatever their reason, apparently they made the right choice for their client, regardless of how I feel about it personally.

One thing is for certain: if their client had been a black man accused of plugging a couple of police officers a couple of dozen times as he stood on the hood of their patrol car the jury would NEVER have been waived. That would have been malpractice. If that sounds like a double standard, fair enough, but it is a double standard based at least in part on legal principles. In this case, the felony murder rule (or I should say, lack thereof in this case).

Felony Murder Rule

The felony murder rule states that whenever a person is involved in committing certain felonies, or an accomplice is, and someone is killed during the commission of that felony, then murder is imputed to all of the felons, whether or not they had an intent to kill. The classic example would be a bank guard being shot when the gun a robber was pointing at them accidentally discharged. No intent to kill, but since it was a robbery, felony murder is charged.

The root of this rule is that committing violent felony crimes is inherently dangerous so if someone gets killed it is not surprising. A sort of strict liability analysis.

Here, if the cops were trying to steal drugs from the victims, then the rule would apply. But instead they were chasing down suspects who had fled from them and during the chase they heard what was described as gunfire, arguably aimed at them. So, they were within their rights to shoot.  At least that is the argument. The issue of whether or not their use of force was excessive is another question.

Excessive Use of Force

This is a very difficult question with no clear-cut answer. It is subjective and depends on the jurisdiction. The ‘heat of the moment’ factor is sometimes part of the analysis in the media, although it shouldn’t be since it implies that if your adrenaline is flowing then it is OK to shoot someone. It is not.

Here the argument is that there was a valid legal basis for Brelo to shoot the victims as he had a reasonable good faith belief that they were armed and dangerous, based on inaccurate but reasonably believable reports that the car backfiring was actually shots being fired at the police. Having heard both sounds myself I agree that they sound very similar. Therefore it is not unreasonable to confuse the sounds and proceed accordingly. At least that is the argument – an argument Judge O’Donnell agreed with.

In his extremely well written and thorough opinion, which reads like a novel, he explains that Brelo had justification for shooting, but that the primary basis for his not guilty verdict was lack of causation. In other words, the prosecution did not prove that he was not shooting at corpses, to be blunt. You can’t murder a corpse.

Proximate Cause

You’d be amazed how often this comes up. We all learned the term in Torts class in law school, studying that brilliant jurist Justice Cardozo’s opinions about scales falling on people and ships coming loose from their moorings. (Yes, IL’s, I know he was actually writing about foreseeability and only issued the injunction in Erie Canal, but I am using some poetic license here. :) ) Causation is also critical in many criminal cases.

A common example is in vehicular homicide cases, where it is unclear that the fact someone was driving drunk actually caused a fatal accident because some other intervening proximate cause may have caused the accident or the death.

A classic case would be a drunk driver hitting a person who had just jumped off of a highway bridge, colliding with them mid-air on their way down to the ground while attempting suicide.

Don’t laugh; it happens. More than you can imagine. The question becomes why did the person die? Suicide or drunk driving? (In Washington this rule is extremely convoluted but I am not going to get into that here.) I would argue that even a sober person would have struck and killed the jumper, and thus the intoxication did not cause the death.

In this case it is a matter of which bullet killed the victims, since there were about a million cops all shooting at once, not to mention that they might have been dead before Brelo did his bizarre Rambo act and jumped on the hood of their car, blasting away. So a very hyper technical defense really, and a good reason not to let a jury decide the case.

Which brings us back to where we began. I was not happy that this was a judge verdict. It would have been so much better for me if it had not been. I could have written about juries and fairness instead of judges and possible unfairness. But that, as always, is not the point. The point is that, like it or not, what we really have here is a very well written judicial analysis and great criminal defense lawyers doing great work. For their client, not me. Or anyone else, for that matter.

Black Cards

I had not planned on talking more about this issue but after being asked some really interesting questions I couldn’t stop thinking about it. It gets so complicated. The best question was whether it is EVER possible to “play the race card”? Of course it is. The problem is that for every time someone “plays the race card” you have twenty people accusing them of playing the race card without justification. Which is the entire problem. Quite frankly, I personally believe that most people who accuse someone of playing the race card are probably racist at some level, if not overtly, then subconsciously. At the very least, they do not have a very nuanced worldview.

However, since playing the race card has come to mean falsely accusing someone of being a racist, then saying someone is “playing the race card” when they are calling an actual racist a racist is to falsely accuse someone of falsely accusing someone of being racist. Everything turns into this crazy fuzzy pretzel logic where you have people falsely accusing people of falsely accusing people of things, which ties in nicely with my experience practicing criminal law, since that is the world I live in every day. False accusations. Or not, as the case may be.

Playing the race card did not always mean simply falsely accusing someone of being a racist. This goes to another question that was asked, about the use of the word “thug” when describing Richard Sherman, and the origins of that word, which is where this whole race card issue suddenly appeared on this blog. Although thug may have originally meant “white gangster” when it was used back in the 1940’s, words and phrases evolve and change meaning over time. Otherwise we would all be running around grunting like cave men (not just the trolls.) More on that in a bit.

As for “race card”, I remember exactly when I first heard someone use the term, who said it, and why. It was Robert Shapiro, one of O.J. Simpson’s so called criminal defense attorneys. “So called” because anyone who talks out of school about his representation like that should be disbarred in my opinion. Confidentiality anyone? It was just plain wrong for him to go public with his opinions about the defense work he was personally involved in, regardless of his reasons, so long as no one was violating ethical rules or committing a crime like perjury or fraud, in which case he would have been ethically obligated to talk. But here he was just calling out strategies. Wrong.

Shapiro took issue with the way Johnnie Cochran was using race to try to win the case. (Full disclosure: Shortly after the trial, Cochran’s law firm contracted with me to be their “Dream Team” representative in the State of Washington. Although I no longer work with them, I still carry around my business card with my name under his firm logo. It makes an interesting conversation piece.)


Funny thing though. Shapiro was partially saying it was wrong to call out Detective Mark Fuhrman, a lead investigator on the case for the LAPD, for using the N word in conversation. I guess Shapiro was cool with the main dude who was trying to kill his client lying under oath at trial when he testified that he never used that word.

But what Shapiro was really calling them out for was using race at all to their advantage. Like Cochran’s famous purple suit, or appealing directly to black jurors or having venue changed to downtown LA to avoid an all white jury (with which the DA agreed, by the way). I disagree. I think they were doing something I like to call “Good Work Representing their Client Zealously”, something Shapiro apparently doesn’t know much about. I think Shapiro was just jealous that Cochran stole the limelight and won the case.

White people all know about playing the race card. They tell jokes about it. Like seeing a young African American driver cutting off everyone on the highway, careening wildly around, endangering every living soul out there. They say stuff like “Bet if he gets pulled over he will say, ‘Is it because I’m black?!?’” And everyone laughs hysterically. Do not tell me that you have never heard something like that, white people. I know you have. And that is the problem. This is not a laughing matter. Especially if you are black. Which brings me full circle back to where this entire discussion began, at least on this blog, with Richard Sherman and the use of the word ‘thug’ to describe him after his little tantrum following the Seahawks NFC Championship game against the ‘Forty Whiners’ back in 2014.

The commenter on my blog thought it was ignorant for me to say that using the word ‘thug’ to describe Sherman was code for the N word. The commenter said that in the 40’s ‘thug’ meant white gangster. I pointed out that words change over time and the current use of the word thug derives from a Tupac song that came out half a century after the 40’s called “Thug Life” and that now it is used to describe disaffected black youth… not to mention that calling Sherman a gangster was no better than calling him the N word, possibly worse. I resisted pointing out that not understanding basic etymology is in and of itself pretty ignorant.

And ignorance is really the issue here. Ignorance about race and racism and what it is like to be the other person. Which is where I will leave it. Our society has a problem, not a new problem but a problem nevertheless. We have become so divided and stratified and politically segregated that no one even tries to understand anyone else. I see it every day in my work. My job is to try to explain to righteous prosecutors and biased judges and naïve jurors how things might be seen differently by two different people, no matter how minor or major the disagreement might be.

It might be just a simple misunderstanding. Two people walking down the street might look at each other, one person thinking, “Why is that guy glaring at me? What is his problem? What a goober!” And the other person might be thinking “Gosh, that guy looks just like my Uncle.” See? If they had taken the time to try to understand each other they might have discovered that they were distant relatives.

Because we are all distant relatives, no matter what our differences are. We are all human beings. It is about time we put down the pat phrases and cute comments and cutting criticisms and spend five minutes trying to understand one another. IS that such a huge chore? And even if it is, isn’t it worth the work? Or would you all rather just run around all day and hate each other?

So, white people, next time someone says someone is a racist, before screaming “race card” try to see their point of view, if only for a second. Pretend you are the other person and try to see how they feel. And, African Americans or Hispanics or Native Americans or Asian Americans, when someone is giving you a hard time, before you automatically assume they are racist (hard I know, since so many people are) try to see why they are saying bad things. Maybe it really is your bad driving or whatever. Easy for me to say, I know. I’m white. Which is why I know that I have to be very careful before I jump to conclusions about anyone based on their race. I mean, just because I am white it does not make me a racist. And just because someone isn’t it does not mean that they are falsely playing the race card. Especially when they are not.


Since I am relatively new to this whole blogging thing I am still learning. I have a lot to learn. For example, until recently I thought trolls were only something you found in scary fairy tales. But I am getting lots of random nasty comments from sad people with nothing to do all day other than spew venom online. I don’t have time for that type of thing. I am way too busy working my tail off trying to help people solve their legal problems, being a good father and husband, shopping for groceries and cooking and cleaning and everything else it takes to lead a productive successful life. And, occasionally, having a little fun doing this stuff. But spew at people I don’t know? Why on earth would I ever want to do that? I have a life. So, I don’t.

That said… heh heh… although they are called trolls I think they should be called Neanderthals. Cave men. That’s because they must be living in caves to think some of the things they think. And to have time to do what they do. I mean, I have a view to keep me occupied.

In particular these cave dwellers like to say things like: “Way to play the Race Card!” Hmm. I always have to scratch my head when I hear people talk about the “Race Card”. I am not sure what they mean. Do they mean that I notice people are different races? Notice that sometimes people of one race don’t like people of another race? Notice that sometimes that causes problems for our society? Or is it just that I refuse to pretend that race is not an issue in modern America? Because, believe you me, racism is alive and well in America today. And if you don’t see that you must be living in a cave.

You may well ask what does this have to do with criminal law? And, if you are a cave dweller that might be understandable. You probably don’t get out much. But if you did, or if you had a TV or internet access, you would see gazillions of examples of it every day. You could even read my blogs where I have talked about it in specific cases, like Baltimore or Richard Sherman.

Why are things this way? I don’t know. As usual. I see the way things are, but I don’t automatically know why things are the way they are.

But it bothers me.

A good friend of mine, Jeff Robinson, whom I have mentioned before, is an expert on this issue. That’s because he is black. And, like Obama, he is a Harvard Lawyer. Jeff can’t help the fact that he didn’t go to Stanford Law, so I will let that go. Still, he is a fantastic lawyer and keen observer of the world around him. He likes to say that he has no idea what white people talk about when they get together because he has never been and never will be in a room full of white people. After all, if he is in the room, there’s a black guy there. So not a room full of white people. Simplistic maybe, but it makes his point.

He also talks about times, which I have also mentioned before, when he was at Harvard and driving through areas of Boston late at night with some classmates when the white driver was pulled over for something. Since it is Harvard he was often the only black guy in the car. More than once the cops pulled Jeff out of the car to frisk him and shake him down a bit, wondering what a black guy like him was doing with respectable people like these. And trust me, Jeff is one of the classiest most intelligent and eminently respectable people I know. I respect the heck out of him. And so does the ACLU, which just appointed him to head up their Center for Justice, headquartered back in New York. I am so happy for that, but a bit sad that I won’t be seeing him around to get some needed insight on the occasional case we may have shared (like a major international smuggling conspiracy we once worked on). He’s a gem.

I know I may be rambling so let me try to explain this in a way that you can understand, especially if you are busy getting ready to sketch some pretty line drawings of antelope on your cave walls. I was picking a jury once in Island County. My client was Mexican. I had NO intention of making a big deal about that. However, our defense was mistaken identity. They had the wrong Mexican in other words.

In most cases, during jury selection, I try to find out how inherently biased prospective jurors might be against any criminal defendant by asking this question:  “When you first walked in here and heard what the charges were and looked over at me and my client, what did you think?” I ask that no matter what my client looks like. It is not about that. It is an attempt to get them to answer honestly and say what they were really thinking. Which is generally, “I thought he was guilty.” Or “I was wondering how a nice guy like you could represent a scumbag like that.” Or even one time, when I had an especially presentable client, “I thought you were the client and your client was your lawyer.” Ouch, that stung. But I was able to use that one to help dig into the need to presume people innocent and not make snap judgments since they can be wrong. Very wrong.

In this case I had a Mexican accused of, among about a million other things, what most people would call Armed Robbery (actually Robbery First Degree with Firearm Enhancement).

One man put his hand up and said, “I was thinking that he looked exactly like a thug who robbed me at knifepoint when I was walking through Mexico City one night.” OOPS.  Now I’ve got a problem, I thought. Although I had been determined not to play the “race card”, whatever that is, now I had no choice. So we began talking about it. About how they might feel if they were sitting in a courtroom in Mexico City, falsely accused of a crime they did not commit, facing a jury composed entirely of Mexicans, and one of the jurors said that they looked just like some Gringo that had robbed them when they were visiting their cousin in Chicago last year. Would they be at all concerned about getting a fair trial? (You might ask yourself the same question.)

Just then a woman in the back row put up her hand. “Excuse me,” she said. I hate losing control of the room like that, but hey, I couldn’t exactly ignore her.

“Yes?” I inquired.

“Well, I just want to say that I resent what you are doing up there.”

“Uh… excuse me? Do you mean asking these questions or…?”

She cut me off: “PLAYING THE RACE CARD!” A bunch of the other jurors nodded their heads in agreement and murmured approval at this wise observation. It must have been get out of your cave free day.

I’ll admit it. I pride myself on never letting this happen, but for a moment I was flummoxed. I mean, did she not see what the guy had just said about being robbed by someone who looked just like my client, who was accused of Robbery for crying out loud, and not see how that might be cause for concern? So I asked her that. But try as I might I could not get her, nor most of the rest of them for that matter, to stop repeating that stupid phrase, apparently incapable of seeing what was happening there right in front of their eyes.

So, that experience may have colored (pun intended) my view somewhat. Because whenever I hear someone utter the phrase “Race Card” I remember that woman. Unable to process the obvious problem happening right there in that courtroom, the way my client’s right to a fair trial was being denied by the negative perception of his race, actually being a potential juror responsible for deciding the poor guy’s fate, yet unable to do anything more than repeat a cute phrase that was completely irrelevant to what was actually going on. And that is what I think of the Race Card. It is a meaningless phrase uttered by people who refuse to see what is happening right in front of them, preferring to regurgitate clichés rather than do the hard work involved in making our society fair and accessible to all.

Oh, and trolls, before you all go nuts, I know it was more the Cro Magnon than Neanderthals who lived in caves. I just like the sound of it better.


Well I guess I was wrong about the jury in the Tsarnaev case. Sounding a bit facetious (but not really) I did not expect them to play so willingly into the Tsarnaev brothers’ murderous hands. Nor show such mercy. To some of you doing that may not make much sense (and I would have to assume that most of you would be defense lawyers like me.)  For the rest of you, read on.

Taking that second point first, since it is so much easier to explain, let’s begin with what it really feels like to be locked up in U.S. Federal Detention. I know. I have been there. No, not because I’ve been in trouble. It’s because I have been inside the “Belly of the Beast” visiting clients when there was some minor security breach and the entire facility, lawyers, visitors, and everyone else under the sun, are all “LOCKED DOWN“, and ordered to stay precisely where we were until the dust settled. It’s no fun. Really NO FUN.

When that has happened to me I have been sitting in a cavernous visiting room at the Federal Detention Center at Seatac, where federal prisoners for the Seattle and Tacoma Federal Courts are detained, most of them still presumed innocent and awaiting trial. Compared to what Tsarnaev would be facing with life in prison it is like a Sunday afternoon picnicking in Central Park. The room is not only huge, but as a lawyer I am relatively free to roam around it, chatting with other locked down lawyers, bemoaning our sad temporary fates, as natural sunlight streams through the (granted) slit windows, normally having relatively free access to our computers, able to stretch out a bit in the 5000 or so square feet of open floor space.

The worst time was when I was in there without a computer, with only a few pieces of paper in hand. It was a brief visit to review some last minute paperwork that the US Attorneys’ Office had just emailed to me that I had to get my client to sign that same day. No need for my normal stack of files and laptop since it was merely a matter of read, approve and sign.

But just as I was emerging from my short meeting the alarm sounded. LOCK DOWN! Argh. Poor widdle me. There I was. Stuck for almost the next THREE HOURS!! Can you imagine? Moi? No paper, no pens, no computer. No TV or phone or magazines or books. Not even any other lawyers to chat with since it was 7:30 a.m. and I was the only one inside at the time. Even the guard couldn’t chat as he was busy doing guard type stuff. And, no offence to my client, but we were finished and he was my client, not my best friend.

So, there I sat. And sat. Slowly going mad. Staring at those walls, which were admittedly half a football field apart. Getting claustrophobic. Feeling trapped. Like a rat. Trying to think of word games in my head. It seems confinement, even in a large open space, even for only a few short hours (no matter how long they seemed), was virtually unbearable. I was beginning to wonder how to use one of my ball point pens to dig a hole out of there (just kidding BOP!) when the “all clear” sounded.

I have never been so happy to breathe fresh air in my life as I wandered outside into the crowded parking lot, jets screaming overhead as they landed at Seatac, spewing foul exhaust all over me. I took a deep breath and held it in, Richie Havens suddenly competing with Bob Marley singing songs of freedom in my head.

You think I exaggerate? Try it sometime. Now multiply that by about a million. As in every second of every minute of every hour of every day of every month of every year for THE REST OF YOUR LIFE! The entire time squeezed into a tiny little cell, all alone, no one to talk to, four walls a few feet apart, constantly closing in on you. You think that’s getting off lightly? Think again. After my three hours I was starting to wonder if it might be better to just try to slit my throat with that ballpoint. Not really, but another three years and I might have. Another thirty or fifty or seventy or however long that Tsarnaev kid is gonna live on in Supermax and I for sure would have. And, don’t fret; it’s the Feds, not State Prison. They’ll make sure to keep him alive. The Death Chamber would start to look like the Promised Land if that was my future. I mean, by comparison to a quick exit, life in prison would be real punishment. Misery for eternity. Instead the jury elected to put him out of his misery. Relatively quickly by comparison. Or not, perhaps –which brings us back to the first point.

You see, by sentencing Tsarnaev to Death they have kept his cause alive. And the cause of his older brother, the one who planned it all and dragged his little bro’ along for the ride after filling him with hate and propaganda. To live on beyond either of them. The whole point of this insane murder spree by the Tsarnaevs was to draw attention to their “cause”. Lock up Dzhokhar for life, and trust me, he’s gone. I mean how often do we hear about Robert Kennedy’s killer, what’s his name, or even Charles Manson? Granted, every decade or so Big Media runs around, wringing their collective hands over the possibility that Manson might get paroled, even though we all know there is a snowball’s chance of that ever happening. But since he is famous and there are movies and Roman Polanski to keep reminding us, Manson helps sell aftershave and reverse mortgages. Henry Winkler must love the guy.

And those criminals have been in relatively liberal California prisons. Tsarnaev will be with Ted Kaczynski in Supermax. When is the last time you ever read one of his Unabomber screeds? Not to mention Zakarias Moussaoui, one of the 911 terrorists, who is only serving life in prison, not sentenced to Death. How does that work? He ranted and raved during his entire trial, cursing everyone in court to eternal damnation. And still he lives.

Life inside? Bye bye. Bye bye Jihadist cause. Bye bye notoriety. And above all else, BYE BYE MARTYRDOM. Because that is perhaps the worst aspect of this. This jury, although I totally understand their decision and it would be wrong to disparage them for just doing their jobs as they saw fit, are creating a hero. It was the Government’s mistake, not theirs.

I may be wrong, but as far as I know this will be the first “Jihadist” that our criminal justice system is going to kill. I am not including the drone strikes and helicopter raids to take out the Bin Laden types. I mean, from the Jihadi perspective, a slow, deliberate, VERY PUBLIC, mission by the United States Government to murder one of “their own”.  Trust me.  They are gonna be ululating in the streets over this one. And of that prediction I am supremely confident. It is not if, but when.

And, therein lies the problem. We are blowing this up. The appeals and idiot pundit coverage and constant reminders of this heinous crime will live on and on and on, even after we kill this kid. We just made him a superstar in the eyes of the entire radical whatever-you-want-to-call-it world. (I don’t like to say Muslim since the vast majority of them totally reject this madness.)

Perhaps the aspect of this that bothers me the most involves the parents of that poor innocent little boy, Martin Richard, who was right there in front of the bomb that Tsarnaev placed on the street that day.  His parents stated in a compelling plea to the Government that they did not want the death penalty for Tsarnaev. That should have been given at least as much weight as the Government’s ongoing (and totally understandable) argument that the murder of the little boy justified the Death Penalty. And this is where I just might have a solution.

Years ago it occurred to me that the best way to fix this whole death penalty mess would be to get the Government out of the business. Instead why not create a defense to murder that would allow family members to get into a ring with the bad guys and beat them slowly to death? I mean if anyone had hurt my kids growing up I would have given my right arm for a chance to do that. Why not let the relatives do the dirty work? Let them kill the guy. It would make more sense. And even the radicals would be able to accept that perhaps.

I make that suggestion (sort of) as I began this. Facetiously. But only partially. If that idea makes you recoil in horror at the thought of creating a gruesome scenario where people are murdering other people with government approval, think again. Because that is precisely what we are doing when we sentence someone to death. Except the Government, with no personal investment really, is doing the deed. How can that possibly be more morally correct? Ask yourself that.



[Or….  Enough About Police Brutality Already; Let’s Talk about Something Really Controversial:  Parenting!]

Free Range Chicken is a good thing right? We all know that the more “free” things are the better they are. To eat, at least. Even Eric Holder is in on the being free movement, proclaiming his new-found freedom now that Loretta Lynch is finally the Attorney General. But seriously, what gives? It is just so ironic that some of the same people who insist on having all things roam free and be devoid of giant corporate controls are the same folks who shudder to think about the idea that actual people, children no less, might be better off that way too.

I’m not talking necessarily about the Nanny State, although that is part of the issue now that they are getting involved in this. I am talking about Nanny Parents. The ones who drive their kids everywhere, scheduling them out to the max, never allowing them a spare moment to think or do anything for themselves, making sure that they are protected from the world, unable to find out anything for themselves. And thus unable to learn and grow and develop in the same way that most of us did; following mindlessly along from Soccer practice to cello lessons to college prep classes. All when they are five. It’s ridiculous.

When I was a kid we got to roam freely. Nobody had ever heard of free range anything, unless it was where the deer and the antelope roamed. Good grief. When I was three I would head out of the house first thing in the morning, with our without my ancient sisters, aged 8 and 11, practically grown ups and almost out on their own by then.  We ran in a pack, just like kids all over the world. Go to Bali. They are roaming freely. And they are smiling. And laughing. And playing.

I went to an exhibit about Leonardo da Vinci several years ago, at the Seattle Art Museum. They had a display all about how Leonardo had become Leonardo. It was fascinating; he didn’t sit at a desk and study how to become a genius. No. He ran wild in the woods, observing nature and the physics of running water first hand, and in so doing he gained an understanding and appreciation for the physical world that led to everything from invention of the first helicopter to painting the slyly smiling Mona Lisa.

The issue has come to national attention in the form of a Nanny State case and a viral video. The case was about a Silver Spring, Maryland couple, Danielle and Alexander Meitiv, who had the audacity to allow their kids, a six year old daughter accompanied by her ten year old brother, to actually walk home from school alone together. Heaven forbid. But, they were wrong to be so trusting, because on the way home the kids were actually abducted and held prisoner for hours. By the POLICE.

You see some concerned citizen apparently called 911 at the horrific sight of children walking down a street minding their own business… without a helicopter parent on hand. I wonder how Leo would have processed that? Not sure he had that in mind when he invented the first chopper.

But, as always in legal matters, there are two sides to this issue: on the side of the Meitivs we have a growing national movement called Free Range Kids, led by another concerned parent, Lenore Skenazy, who believes that we have all become so overprotective we are denying our kids the sort of upbringing most of us had, the kind I had. Last Saturday she spearheaded a child abuse event called, Leave Your Kids at the Park Day.

All of this wild irresponsible abandonment led one YouTube dude to lead the bull by the horns and go out and abduct him some kids his own self. What a guy! He proceeded to randomly cruise parks to pretend to abduct young children. I guess he wants to establish “Go To the Park and Scare the Crap Out of Kids Day!”

But this is where it gets confusing.  You see he was successful at abducting the kids he tempted with tales of puppies waiting for them to go pet if they would only come with him. Fortunately he had the common sense to check in with their parents first to get permission to pull this prank. Otherwise he would be sitting in jail looking for my number right now.

Of course after listening to him on NPR, I was thinking he’d better make that phone call lickety split. That’s because he was saying some incredibly stupid things, like “There were only three of them that I attempted to “abduct” and those are the three you see in the video. In between filming some scenes, groups of kids would actually run up to me to pet the puppy. I wanted to try the experiment on those kids, but I didn’t see their parents around, so I didn’t do it because I didn’t want to get in trouble. But I could have easily abducted even more.” YouTube Dude, Please Note:  That statement constitutes probable cause to arrest you for attempted Kidnapping. You have a right to remain silent. And a right not to be so creepy.

He also revealed some very sloppy research, admitting that his claim that “700 kids are abducted a day” was based on a two second Google search and that the actual number is way lower. But, of course, that doesn’t stop some Mainstream Media outlets from blasting it all over the place.

Still, he has a point. A very disturbing point. These kids were extremely gullible and naïve.

Lenore Skenazy, the Free Range Mom, was quick to weigh in, talking about how he is scaring parents into forcing their kids to hide inside and never be free to just “go outside and play”. Like Leonardo did. Back when rapists and murderers roamed freely.  She also argues that crime rates are down. Much lower than they were when we were ALL free range kids. So, where’s the fire?

To be honest, the whole thing baffles me. I just don’t know what to think. I admit we were overprotective parents ourselves, and I worry that our kids, while successful and independent fine young adults, thankfully – might lean on us more than we did on our parents. But I am not sure that is a bad thing. As always I am confused.

Which is why I invite you to comment on this post. Maybe we can work this one out together. At least the cops didn’t shoot anyone this time.

Seahawks at Redskins 10/6/14

Huh?  Let me explain.

I love Richard Sherman. He’s a kind of a hero to me.

I’m standing in the Oak Harbor Walmart, the only place to buy Seahawks t-shirts on Whidbey Island. There are three choices: Marshawn Lynch, The Beast, that Caterpillar bulldozer of strength, calling my name. Russell Wilson, Mr. Perfect, and who can argue with that? And then there’s Sherman. The loud-mouthed Stanford guy who speaks his mind and speaks the truth as he sees it and consequences be damned… especially when they take the form of racist idiots who just don’t get that a kid from Compton might actually be smart enough to graduate from the best University in the World, and even manage to earn his Masters Degree while still playing college ball. My kinda guy. I grab a #25 and head for the check out stand.

‘Sherm’ was universally reviled when he dared to show some emotion after playing a key role in Seattle’s huge victory in the NFC Championship over San Francisco a year ago, when he deflected a last second potentially game winning pass, before the Seahawks went on to trounce Denver 43-8 in the Superbowl.

But unfortunately, during the two weeks leading up to that shellacking, Big Media was falling all over itself attacking Sherman for daring to act like a … uh… football player, following that playoff game against the 9’ers. The main word used to describe Sherman back then was “thug”, a term he saw as a thinly veiled synonym for the “N Word”.

Which of course led the pundits to make matters worse by seizing on his unfair characterization of their fair and balanced critique of his arrogant audacity.

And there he was again before this year’s Superbowl, being arrogant… and correct… as usual. Saying that everyone does not know what he knows: that the Patriots’ Tom Brady is not the choir boy he is made out to be, not necessarily deserving of his media-darling status; that maybe there is a less acceptable side to him that you only see when you are out there on the field together.

How dare he? What or Who does he think he is? Some kind of Superstar?? Oh wait. He IS. Nevermind that he was speaking respectfully and intelligently and calmly, stating what he sincerely believed was true. Apparently the authors of the recently released NFL report that details how Brady cheated to help him win this year’s AFC play off game to get into the Superbowl agree with Sherman. It’s just that Sherman isn’t a pretty boy like Brady, married to his cover girl supermodel. No, Richard has dreadlocks and Compton swagger. Clearly a threat to all those athlete wanna be’s out there in the media.

In the extremely thorough and very scientific report prepared by one of the top law firms in the country (which you can read for yourself online), the authors concluded that, “based on an analysis of the substantial and credible evidence” available to them (pg.126), that Brady’s claim that he did not know about the deflated balls was “not plausible and contradicted by other evidence” (pg 129). Significantly, they pointed out that their available evidence was limited because of “Brady’s refusal to provide us with his own emails, text messages and phone records on relevant topics, in response to our narrowly tailored requests” (page 130). That’s right. I lawyered up on this a bit. I take this kind of cheating very seriously.

So what is bothering me so much? It’s this: Sherman is a fantastic football player. He is also an excellent student of the game, intelligent, articulate and informed. But he is still treated like some sort of pariah by most of the Sports reporters, at least like a class clown that they can make fun of.

But that’s just wrong. He deserves our respect, not our condescension. Which brings me to where we are today: now the pundits are falling all over themselves to say that “Deflate-gate” is nothing but a bunch of hot air.  That it made no difference because the Patriots blew out the Colts in that play off game after the deflated balls were properly inflated at half time. To me that is like saying it is OK to point a gun at someone for no reason, so long as you don’t actually shoot it. It’s not about the point spread, stupid. It’s about the cheating and lying.

Anticipating a possible 6-8 game suspension, they are even saying how unfair it all is. How the NFL Commissioner Roger Godell took so much longer to go after Ray Rice for domestic violence. It does not seem to dawn on them that Brady’s conduct was not some off field alleged criminal activity, where the presumption of innocence and the notion of proof beyond a reasonable doubt apply. It was part and parcel of Brady’s attempt to rig a game! Even Pete Rose, that Major League Public Enemy Number One of Baseball, was just gambling – not rigging games.

In a masterpiece of unbelievably clueless and biased reporting in the New York Daily News, Gary Myers said the following: “Brady and Peyton Manning together have been the faces of the league for more than a decade, and this is not at all like Goodell having to suspend miscreants such as Rice, Adrian Peterson and Greg Hardy for various degrees of domestic violence. This is Brady, a four-time Super Bowl champion, three-time Super Bowl MVP, husband to the world’s most famous supermodel and, at least to this point, everything Goodell wanted representing the NFL shield.”

WOW. Thanks for making my point for me, Gare. Good grief. Can that guy even look at himself in the mirror after pronouncing claptrap edicts like that? I give up. Except I refuse to. I am compelled to call it like I see it. Like Sherman. And never give up. Like the Seahawks. Because you see, they can talk all they want. We will be ready for them this year.

See you next February 7th, everybody!

Oh, and just think: the Colts, the ones Brady cheated against to help him get into the Superbowl, used to be from… get ready for it… Baltimore. Can you imagine?