31 January 2010

The Last Mile:
Handcomputers Post-iPad

As anyone who has been reading my blawg for a while knows, I have been keen on the idea of a workable tablet which could be carried to court instead of files. This is particularly of interest because both the Clerk of our Circuit Court and my boss are trying to get us to the point that paper isn't needed in the courthouse. This works wonderfully for the storage of closed files, but is more difficult for ongoing case files. Laptops can somewhat fill the gap, but to use the laptops you get stuck at the desk and have to type notes. You really need a tablet which you can carry with you so that you can pop up .pdf's and documents in a case file, take written notes when you are standing at the bench or podium, and use it to read your notes for openings and closings while you are standing in front of the jury.

So, I am really looking forward to a real working tablet. To this point, I have been most impressed with the enTourage eDGe which has a goofy name and is still too heavy and bulky at 3+ pounds (seems light until you carry it in replacement for a paper tablet), but has much more functionality than anything else I've seen.

Now Apple joins the race. I've been looking forward to this for a while because Apple usually tries to be innovative when it develops a new product. Of course, I also carry prejudices with me which caused me to expect the Apple tablet to be too expensive and too locked in to Apple programs (i.e. iTunes). Comes now the Apple "iPad."

It's an unfortunate name, which has led to a lot of jokes, most in the vein of the one which Mad TV did years before Apple ever thought of this tablet.

There was an initial flush of Apple fanboys talking about how wonderful this device is. Here's the uber-maven of tech Leo Laporte gushing about the device (bracketed by Tekzilla).

Then came the almost immediate and large backlash pointing out all the flaws of the device. This one by Molly Wood, via the Buzz Report, has a number of them (and is funner to listen to than most).

The Good: At a price of $499 with 16GB of memory, it sets the price point for everybody else. With it at this price, it becomes very hard for ereaders to justify their current pricing. In particular, I hope it drives down the price of items like the Sony Reader Daily Edition ($399) and the QUE proReader ($799). The proReader in particular seems badly overpriced at 8GB, even though it is impressive if all you want is a reader.

The Bad: All they did was make a big iPod touch. It will probably be a good way to read the internet and could be a good way to watch video if it supported flash (supposedly to be fixed sometime in the future by support for h264 in new HTML). It could at least have been a new type of communication device if it had a camera and microphone and did vid-phone between devices. No stylus either so that a person can write down a quick note and save it (or, continuing the new type of communication device theme, it could have allowed writing notes and sending them to another person with a tablet).

AAAaarrrrggggg!!!! I'm not sure what Apple thought it was doing when it put this product together. It doesn't look like it will work well for much of anything. Primarily, it seems to be interested in pushing against ereaders instead of actually becoming a working hand computer. It's sad, but the last company to do that really well is probably still Palm. I'm still waiting for the somebody to get it right.

[ADDITION] The coolness offensive has begun:


28 January 2010

Obama Calls Out The Supreme Court to Their Face

The following video has been spreading around the internet because, if you watch closely, you can see Justice Alito muttering "Not True" as the President calls the Supreme Court out in the State of the Union Address. However, watch it closely and you'll also see Justice Ginsberg's head snap up into a death stare as the President begins his call out. The only Justice that seemed totally unaffected by the political rabble rousing was the Chief Justice, who almost looks like he's smirking.

25 January 2010

New Street Law

Netflix has gotten it into it's computer algorithm that I'm a fan of BBC shows. After having it pop up in suggestions several times, I finally decided to try "New Street Law", a show about barristers in Manchester, England.

It's fascinating. The ongoing story is that of two law chambers (roughly analogous to US law firms). One chambers is dominated by a barrister determined to be a champion of the little guys; it struggles just to keep its doors open from day to day. The other chambers is well established and dominated by a respected barrister who is in the twilight of his career. The twist is that the barrister in the first chambers used to be in the elder barrister's chambers; he left and the elder barrister has never forgiven him. Since these two chambers share the same building, appear to be the only ones in Manchester and constantly face each other in court, this provides the background for every single case.

However, the truly interesting part is watching how the system operates. I'd realized that the British system had solicitors and barristers, but I hadn't realized that the barristers are totally dependent upon the grace of the solicitors to receive cases. It appears that if no solicitor will give a barrister a case (apparently called a brief in British parlance), the barrister is going to starve. There also doesn't appear to be permanently employed set of prosecutors so that cases are sent out to private chambers. It's also strange to see the differences in procedure. I can't imagine trying a case for the defense with the client sitting off to the back behind a glass wall. It's really interesting to watch the trial ongoing and see things go by as a matter of course which would have lawyers here in the States screaming at the top of their lungs (usually because of the lack of our constitutional amendments). Hearing a judge say that she will weigh the defendant's refusal to speak against him is really different. AND, I really want American courts to provide locker rooms in the courthouse for attorneys like British ones do (at least on this show).

Prior to watching this, I had thought that TNT's Raising the Bar was the best representation of defendants. Now I think that New Street Law is. Some clients are innocent, some are unrepentant (and still expect to win), some refuse to cooperate, some women try to use there sexuality to get out of things, and some clients are manipulative as a snake charmer.

Of course, part of the reason that I like this show is that I'm not able to pick it apart as I sit through it like I do American lawyer dramas. Perhaps an actual British barrister sits through this show pointing out errors every 3 minutes. Still, I thought it was great.

I checked and this show only ran for two seasons. If you've got Netflix and a device which will stream to your TV (I use a Roku), you can stream the first season (8 episodes), but you'll have to get the second season mailed to you. If you haven't figured it out yet, I heartily recommend you find some time and watch New Street Law.

18 January 2010

Around the World & Near to Home

1) Wonderful, a brand new way to make meth.

2) The much vaunted "can't arrest a naked person defense."

3) The Board of Governors of the Kentucky Bar Association has voted to disbar Melbourne Mills Jr. I know this doesn't mean much to those of you who didn't grow up in Kentucky, but it's the only lawyer's name that stuck with me from my youth. I think the reason was that he did a bunch of commercials (was he the guy that shot a raybeam from his hand at a dinosaur?).

4) On his way out the door, Governor Kaine agrees to let a murderer go back to Germany causing a ruckus over whether the murderer could get the parole there that he can't get here.

17 January 2010

Kentucky's Constitutionally Mandated Oath of Office:
Attorney General

Okay, it starts out with the normal boring oath that is given everywhere, but listen until the end, because apparently Kentucky has a serious ongoing problem with duels?!?

11 January 2010

Uses, Failures & Effects

The theory behind probation (and parole, although that's rare in Virginia anymore) is that it is agreement between the government and the defendant. The government forgoes a certain amount of punishment and the defendant agrees to forswear all his evil ways. Of course, the carrot comes with an explicit stick: "Screw this up and we'll throw you back in." Typically, a defendant will receive a sentence of something like "5 years with 4 years 10 months suspended, the suspended time to remain suspended for a period of 5 years with 2 years of supervised probation." At any time within the 5 years that the time is suspended the court could impose some or all of it for failing to abide by conditions the court has imposed (new convictions, failing to remain on good behavior, etc.). Realistically, while the suspended time could be imposed at any time, it is unlikely to be imposed unless the defendant is still on probation to have someone to report him to the court.

Defendants almost never concern themselves with the amount of time or conditions which attach to probation. They have myopic vision which zeros in on how much time they are actually getting for their conviction, ignoring all else. Despite their attorneys' advice to the contrary, I'm fairly certain that the vast majority of felony defendants would agree to 10 years of probation rather than spend a month in jail and a year of probation.

The purpose of probation is fairly straight forward. Of the four purported reasons for a judicial criminal sentence - rehabilitation, quarantine (keeping the defendant from further harming the community), deterring others from offending, and simple punishment - probation falls almost exclusively in the rehabilitation. It's society's attempt to put someone back on the street and keep them on the straight and narrow.

The reality is somewhat different. Pretty much everyone in the courtroom, except perhaps the defendant himself, expects to see many (probably most) of the defendants back in the courtroom during their probation. This is based upon common experience repeated over and over and over again. Certainly, not all people put on probation violate it (and God bless those who don't), but the experiential bias which comes from being in the courtroom every day wouldn't lead judges, defense attorneys, or prosecutors to bet on it.

In some courthouses this can lead to a "we'll get him later" attitude which leads to sentences that are low because prosecutors and judges think they'll have another go at this guy a year or so down the line when the offender is back before the court in a probation violation hearing. In that hearing the level of proof is lower and the rules of evidence are far easier (basically, the hearing proceeds with all sorts of hearsay reported by the probation officer). It is extremely rare that a defendant is found not to have violated his probation and most probation hearings are primarily about what the punishment for the violation will be. You'll even hear defense attorneys trying to take advantage of this attitude in plea negotiations: "C'mon Mary, this is John Smith. You can give him a short sentence. You know you'll get it on the backside."

The flaw in probation is that offenders and society at large don't associate punishment meted out under the probation system with the original offense. They see it as punishment for the probation violation. Thus, incarceration which proceeds from a probation violation only serves the purpose of quarantining of the defendant. The fact that punishment is occurring means that rehabilitation has failed. Community deterrence doesn't occur because the punishment is divorced from the crime (although, assuming the offender hangs around with others on probation it will at least serve as a lesson to them). Simple punishment for the initial crime went by the wayside in the initial sentencing; the punishment in a probation violation hearing is for the failure of the offender to reform himself. Still, the offender ends up incarcerated.

Herein lies the philosophical fork in the road. If someone believes that there is a class of persons who are going to break the law no matter what is done, then the goal is to get these individuals off the streets for the longest period of time possible and the "We'll get him later" method make the most sense. It allows offenders to be removed from society in a far easier manner than a full blown felony trial with its constitutional protections and high level of proof. It also provides a safety valve because those very few who have the fortitude to fly straight and actually make it through probation without violating don't get an unnecessary period of incarceration (a benefit to both them and the taxpayer). On the other hand, if someone believes that individuals, and through them society as a whole, can be taught and learn through their errors then delaying punishment for the initial crime and putting people in prison later for probation violations which they don't associate with their original offense is counter productive. If the first felony larceny offense only gets someone a 3 year suspended sentence and a year of probation (a fairly typical sentence), no one learns not to commit larceny. At best, they learn to live by the rules of probation. This does not shape society away from those acts which we have deemed serious enough to make criminal.

10 January 2010

CES: Tools, eReaders, & Dual Screens

Anybody who follows any tech news knows that this last week was the Consumer Electronics Show. It's a yearly get together of almost all of the electronics companies where they show off all that's new and interesting. The big things this year have been 3D TV's, eReaders, and tablet computers. I could care less about 3D TV's, which I hope die a quick death (unless someone figures out holographics). However, eReaders and tablet computers are heading somewhere that I see as being extremely useful.

The best of the eReaders seems to be the QUE proReader. Here's a video in which engadget examines the proReader:

The proReader appears to be the thinest, lightest most capable new eReader out there. At 8.5 X 11", it is larger than the Sony Reader Daily Edition at 7" and maybe smaller than the Amazon Kindle DX at 9.7" (measured diagonally). Effectively, I think the sizes will probably all be adequate for viewing .pdf's or .doc's stored as part of a case file. The proReader seems to have the same flaw as the DX, in that the reported capabilities does not include the ability to add SD memory cards. As well, both the proReader and the Sony RDE do not have the Kindle's ability to access the web pages via the internet (limiting the access to downloading books and magazines). The proReader, at 8gb, has more memory than the DX, at 4gb, and far more than the Sony RDE, at 1.6gb. There does not seem to be the ability for freehand note taking in either the proReader or the DX that the Sony RDE claims to have (a vital need if this is going to become business useful). It's becoming more and more foreseeable that in the near future the cutting edge attorney won't be going to court with the four files for that day's cases, but with an ereader that has the files for all his cases in it.

However, the tech's not there yet. One innovation which I think would be a boon would be the folding dual screen. MSI was showing off a very early version of this sort of device. Here's engadget's video:

Obviously, that device is still flawed and I suspect that it would be too heavy to carry and have too little battery power for long use because it's still trying to be a full on computer. Still, imagine having a document displayed on one side and taking written notes on the other side which could be saved to the same case file. It'd be a great way to work on another case while waiting a couple hours for the case you are in court for to be called. As well, it would allow you to take notes straight into your file in the courtroom and easily store them forever.

Personally, I'm looking for a very light, very thin, fold-open device which used e-ink on both sides, both to save on eye strain and extend the battery to a couple days. Wifi and/or telephonic internet connection would be good, so that files and messages could be sent back and forth between the office and so legal web resources could be accessed. We're not there yet. If I had to buy a device at this moment, I'd get the Sony RDE because it allows SD cards to be exchanged and freehand notes.

Of course, now we all wait to see what the Apple most wonderfulest superslate tablet computer which every tech site on the web is already drooling over, even though it shan't be even possibly announced until the end of this month. Newton 2?

ADDENDUM - I was just watching TWIT and they pointed out the enTourage eDGe, which is pretty close to what I want. Here's Cnet's first look video:

They say that the ereader is on the slow side and the computer isn't exactly the fastest in the world. I could live with that, but I still need it to be very thin, very light, and have 2 days worth of battery power once charged. I doubt they'll be able to do this unless both sides use e-ink. Still, this is the closest to what I've been looking for.

BTW: Apparently, the proReader does allow freehand. You just have to provide your own stylus (or write with your finger like you did in kindergarten).

06 January 2010

Should criminal law be revised every hundred years?

The Legislature's Duty:

In proportion to the importance of the criminal law, ought also to be the care and attention of the legislature in properly forming and enforcing it. It should be founded upon principles that are permanent, uniform, and universal ; and always conformable to the dictates of truth and justice, the feelings of humanity, and the indelible rights of mankind : though it sometimes (provided there be no transgression of these eternal boundaries) may modified, narrowed, or enlarged, according to the local or occasional necessities of the state which it is meant to govern. And yet, either from a want of attention to these principles in the first concoction of the laws, and adopting in their stead the impetuous dictates of avarice, ambition, and revenge ; from retaining the discordant political regulations, which successive conquerors or factions have established, in the various revolutions of government ; from giving a lasting efficacy to sanctions that were intended to be temporary, and made (as lord Bacon expresses it) merely upon the spur of the occasion ; or from, lastly, too hastily employing such means as are greatly disproportionate to their end, in order to check the progress of some very prevalent offence ; from, or from all, of these causes it hath happened, that the criminal law is in every country of Europe more rude and imperfect than the civil.

. . .

[E]ven here [in Great Britain] we shall occasionally find room to remark some particulars, that seem to want revision and amendment. These have chiefly arisen from too scrupulous an adherence to some rules of the ancient common law, when the reasons have ceased upon which those rules were founded ; from not repealing such of the old penal laws as are either obsolete or absurd ; and from too little care attention in framing and passing new ones. The enacting of penalties, to which a whole nation shall be subject, ought not to be left as matter of indifference to the passions or interests of a few, who upon temporary motives may prefer or support such a bill; but be calmly and maturely considered by persons, who know what proditions the law has already made to remedy the mischief complained of, who can from experience foresee the probable consequences of those which are now proofed, and who will judge without passion or prejudice how adequate they are to the evil. It never usual in the house of peers even to read a private bill, which may affect the property of an individual, without first referring it to some of the learned judges, and hearing their report thereon. And surely equal precaution is necessary, when laws are to be established, which may affect the property, liberty, and perhaps even lives, of thousands. Had such a reference taken place, it is impossible that in the eighteenth century it could ever have been made a capital crime, to break down (however maliciously) the mound of a fishpond, whereby any fish shall escape ; or cut down a cherry tree in an orchard. Were even a committee appointed but once in an hundred years to revise the criminal law, it could not have continued to this hour a felony without benefit of clergy, to be seen for one month in the company of persons who call themselves, or are called, Egyptians.

It is true, that these outrageous penalties, being seldom or never inflicted, are hardly known to be law by the public : but that rather aggravates the mischief, by laying a snare for the unwary. Yet they cannot but occur to the observation of any one, who hath undertaken the task of examining the great outlines of the English law, and tracing them up to their principles : and it is the duty of such a one to hint them with decency to those, whose abilities and stations enable them to apply the remedy.

04 January 2010

The Northern Virginia Federal Congressional Penitentiary

Norm & Scott have suggested that for legislators to serve they should have to spend 6 months in prison so that they know what's happening to people subject to the laws they pass. Somehow, I just don't see it working out that way . . .
------------- -------------- ---------------

Warden: Nancy Pelosi
76 Lyndon Baines Johnson Road
Alexandria, Virginia 22306

Security Level: Ultra-Low

Assignment Criteria: Election to Congress or conviction of graft while a sitting federal legislator.

Special Programs: Golf rehabilitation program. Cute Aide withdrawal therapy.

Incarceration Program: Inmates are housed two to a room and are locked down from midnight until 6 a.m. There is only one phone per room and calls are limited to 3 hours per day and may not be received except between the hours of 9 a.m. and 10 p.m. Inmates must supervise cleanup of the tennis courts, gym, and golf course between 9-11 a.m. daily.

Punishment of misbehavior: Institutional sanctions are punished by solitary confinement in a room with no honor bar, no premium cable, and no turn-down service. In order to avoid issues the 8th Amendment no institutional sanction shall last longer than 3 days.


Around Virginia

1) Judge Warren, the longest sitting judge in Virginia, is retiring. Judge Warren sat mainly in rural counties. Unlike a lot of "circuit" court judges in the modern world, Judge Warren actually rode his circuit and I used to appear before him in both Powhattan and Amelia counties.

2) Speculation that there will be more death eligible crimes under the new governor.

3) In some places the bad economy has led to more financial crimes.

4) Is it constitutional for a State agency to force an owner to lease his mineral rights, then allow the company to take its expenses out of the payments, and then have that same State agency hold the money in escrow rather than paying the owner?

03 January 2010

A New Year, A New Project:
Virginia Criminal Cases & Law

This was my project over the Christmas / New Year breaks. It's an outline of the cases which come out each month from the Virginia appellate courts and those cases out of the 4th Circuit and US Supreme Court which I think are relevant to Virginia criminal law. I hope it will be useful to those of you from Virginia.

I built this with Squarespace instead of writing this one myself. In fact, I don't know if the webpage would have been created if Squarespace hadn't been offering a free 14 day trial. Squarespace works pretty well and I doubt I would have gotten the page up as quickly as I did if I had written it myself instead.

Anyway here's the link: Lammers' Virginia Criminal Cases & Law

01 January 2010

The Ugky Side of Jury Nullification: Emmett Till

There are a lot of people out there who think that jury nullification is a panacea. The problem is that jury nullification is an application of the jurors' prejudices. No one thinks about how nullification can allow the dark sides of people to come to the fore and allow evil to triumph. Ladies and Gentlemen, I give you the Emmett Till trial.

In 1955, Emmett Till was a 14 year old Black kid who was visiting relatives in Jackson, Mississippi. He was rude to a married White woman. That night at least two White men broke in while Till was asleep and dragged him off. J.W. Milam and Roy Bryant took the youth off and beat him at gunpoint. Then, incensed that Till would not admit they were better than him or recant his statement that he had slept with white women, they shot him dead. They tied a fan to the neck of the body using barbed wire and through it into a river.

When Milam and Bryant were tried their attorneys trotted out the defense that there was no proof that Emmett Till was dead. Till's mother identified his body and a unique ring which had belonged to Till's father was found on the body. The defense attorneys argued that it was all a plot to help destroy the way of life of Southern white people. The jury took an hour to find the defendants not guilty.

The prejudices involved in the case are pretty clear, but in case none of you are up on your civil rights history here's a letter written to LIFE about the murder and trial:
Maybe the Emmett Till case will convince "smart alecky" Negroes to stay in the North where such things as the attempted assault of Mrs. Bryant are condoned. We do not want them in the South and will not have them even if it means drastic measures.

Mrs. Sarah White, Memphis, Tennessee
And, lest any of you might think there's a chance the defendants didn't do it - they confessed to a reporter after they were found not guilty.