Begging The Question

Wednesday, November 23, 2005

A Thanksgiving Classic
For Thanksgiving this year, I thought I would re-run a post from last year that I've always liked. Have a great holiday, everyone!
BTQ Exclusive: Alberto Gonzales's Last Clemency Memo

In a tradition dating back decades, President Bush this week pardoned a turkey destined for a Thanksgiving execution. For more coverage, see Scott's take here and Prof. Berman's here. Prof. Berman wondered if outgoing White House counsel, and incoming Attorney General, Alberto Gonzales wrote a clemency memo in the matter. Well, funny he should ask, because the crack investigative staff here at BTQ has obtained a copy of just such a memo, apparently written on a 1973 IBM Selectric typewriter.

Mr. Gonzales's clemency memos for Bush while Bush was Governor of Texas have been the subject of some controversy. For more on that, see Prof. Berman here and Phil Carter here. This memo is similar to the Texas memos in that it is brief, gives fairly short shrift to the petitioner's arguments, and does not recommend clemency. I reprint it here in its entirety.
To: President Bush
From: Alberto Gonzales
Re: Turkey clemency petition

Petitioner Tom T. Turkey, a/k/a "Butterball," petitions for executive clemency. Turkey was convicted of interstate flight to avoid prosecution, and aiding and abetting obesity. At the pre-Apprendi sentencing, Judge Christmas Hamm "super-sized" Turkey's sentence to the death penalty, "with all the trimmings."

Turkey presents two claims in his petition. First, he claims that his attorney, the now-disbarred F. Lee Baste-me, slept during crucial portions of the trial. Baste-me blamed excessive ingestion of tryptophan. In appellate proceedings, this claim was rejected in a convincing opinion by failed Supreme Court nominee Judge Robert H. Beak. Relying on the seminal case of U.S. v. Fishbein, the court found that, at most, Baste-me slept through a discussion of the Lions game by expert witness John Madden, and thus didn't miss anything important.

In his second claim, Turkey contends that his conviction rested upon mistaken eyewitness identification. Turkey argues that the actual perpetrator is this bird:
Hey buddy
While that character looks pretty dangerous, the claim is specious. A hunting party saw Turkey clearly, even though they were crawling on their stomachs through heavy woods to avoid detection. Moreover, a jailhouse informant testified that Turkey gobbled a confession to the crime. Here is the very credible-looking informant, seen prior to trial conferring with the prosecutor in this case, Emeril Lagasse:
The Hokie Bird and Emeril - BAM!

In conclusion, I submit that Turkey has not made a showing that he is actually innocent, or that he was denied access to the courts. The courts have rejected his claims, and my recommendation is that you do the same. After all, if we stop executing turkeys, or even slow down, pretty soon we'll be having tofurkey for Thanksgiving, one of those Chick-fil-A cows will be elected President, and meteorologists predict the sky would actually fall. Accordingly, I recommend denying clemency and allowing Turkey's execution to proceed. As of now, Turkey has not chosen whether to be fried, or receive a lethal marinade injection.

Respectfully submitted,
/s/ Alberto Gonzales

Two Memes With One Blow
I got tagged with the same meme by both Mr. Poon and Ms. McPan. They must be in cahoots! Anyway, here 'tis:

1. Go into your archives.
2. Find your 23rd post.
3. Post the fifth sentence (or closest to it).
4. Post the text of the sentence in your blog along with these instructions.
5. Tag five other people to do the same thing.

And the winner is: "The California tax code sets pretty high tax rates on entertainers and athletes appearing in the state." So, yeah, I've been a nerd since the beginning.

I hate tagging people with these things, and by now everyone's done it anyway. Plus, the tag didn't come complete with the usual chain letter warnings about pianos falling on people who didn't forward, so I feel pretty safe letting this meme die.

But, in penance to the gods of memeing, I'll pick up, untagged, another one making the rounds. I've seen it at Amber's, McPan's, and E. Spat's.


Favorite Color: Blue, probably.
Favorite Food: Is sweet tea a food?
Favorite Month: Probably January, but March is close.
Favorite Song: Right now either "Playing in the Band" or "Sugar Magnolia."
Favorite Movie: Another one that changes often. Right now I guess I'll say The Blues Brothers or All the President's Men (I'm not pro-Woodward, I'm anti-Nixon!).
Favorite Sport: College football or college basketball.
Favorite Season: Bowl.
Favorite Day of the week: Saturday.
Favorite Ice Cream Flavor: Right now I guess it's a vanilla/caramel concoction.
Favorite Time of Day: Late at night, like after 1:00 a.m.


Current Mood: So-so.
Current Taste: Again, sweet tea.
Current Clothes: Khakis, button down, sweater.
Current Desktop: This picture.
Current Toenail Color: Um, plain, natural, nude, nothing -- whatever you call it.
Current Time: 2:30 p.m.
Current Surroundings: Desk clutter, radio, a basket of clothes I need to fold.
Current Thoughts: How many more of these are there?


First Best Friend: Probably Brian, maybe Tim. Lost to the haze of time.
First Kiss: Angie, I think. First of many.
First Screen Name: Probably my real name.
First Pet: We had a beagle named Pepper. I think he was first. Hit by a car.
First Piercing: None so far.
First Crush: I can't recall. I've had a lot.
First CD: Paul Simon's "Graceland."


Last Cigarette: Never had one. I've smoked a few cigars at celebratory events, the last one about a year and a half ago at Sebastian's bachelor party.
Last Drink: My last alcoholic drink was a beer a few weeks ago after a friend's wedding.
Last Car Ride: I went to the grocer's last night. It's been a couple of months if "ride" means "not driving."
Last Kiss: Lost to the haze of time. No, wait -- I remember. Better left forgotten.
Last Movie Seen: The Last Shot. Actually not bad.
Last Phone Call: My Mom called a while ago.
Last CD Played: "The Very Best of Dwight Yoakam."


Have You Ever Dated One Of Your Best Guy/Girl Friends: No. Even though I dated some girls I would have called "friends," I wouldn't have called them a "best" friend.
Have You Ever Broken the Law: Sure.
Have You Ever Been Arrested: Nope.
Have You Ever Skinny Dipped: Not on purpose.
Have You Ever Been on TV: Just in crowd shots at Duke basketball games, but I was spotted by people watching at home.
Have You Ever Kissed Someone You Didn't Know: Not a total stranger, no. Although I didn't know her name.


Thing You're Wearing: See above.
Thing You've Done Today: Paid some bills.
Thing You Can Hear Right Now: The radio. No hay banda, though.
Thing You Can't Live Without: Aside from life's essentials, the interweb.
Thing You Do When You're Bored: Hello, interweb. (Yes, I'm using this instead of "the internets.")


1. Home.
2. The office.
3. The post office.
4. The bank.


1. S.
2. M.
3. J.


1. Black or White: White.
2. Hot or Cold: Cold.


Live. Yay for attainable goals!

Tuesday, November 22, 2005

Maybe Everyone in Florida Really Has Been Out in the Sun Too Long
My favorite regional law blogs are the Southwest Virginia Law Blog, Abstract Appeal (covering mostly Florida), the Indiana Law Blog, the South Carolina Appellate Law Blog, Louisiana's Naked Owership, and California's Criminal Appeal. I peruse these sites (and some other geographically-inclined blogs) with varying frequency, looking for interesting items.

Via Abstract Appeal, I saw this case. I think you can state the black-letter rule this way: A Florida court holds as a matter of law that not all men are inherently predisposed to rape.

The issue arose when a male attendant from a rehab clinic was assigned to transport a female patient to a doctor's appointment. During the return trip, when she was still under sedation, he raped her. She sued the clinic for negligent hiring or supervision, even though the guy had no record or anything to put the company on notice that he might be dangerous. Her argument was essentially that the clinic should have known that leaving a man alone with a sedated woman would lead to rape -- that it was per se negligent to do so. The court understandably rejected this contention, noting that to accept her argument, "we necessarily would have to approve of the underlying premise of her argument that there exists in the male species a substantial, immutable flaw of the first magnitude." Now, all men may have some substantial flaws, but apparently this ain't one of them. Good to know. No comment on contrary evidence, and probably not enough to make Fark rethink having a whole separate "Florida" tag.

Speaking of nuttiness in the Sunshine State, also via Abstract Appeal, I see the latest in the seemingly endless parade of child rape cases going on in Florida. There's been some scuttlebutt over the decision from the defense attorney in the Carla Brucia case to waive closing argument. Was this an attempt at sandbagging, laying the groundwork for an ineffective assistance of counsel claim later on? I can say with a high degree of certainty that no court in America would grant relief on such a claim.

First, there's the concept of "invited error," which holds that a party can't invent its own ground for appeal. You can't do something wrong and then argue the judge shouldn't have let you do it. (This comes up a lot when a party proposes jury instructions, and then argues that the instructions misstated the law.) As I read in the news coverage, the defendant in the Brucia case told the judge he agreed with counsel's strategy to waive closing. That makes it sound like the judge was careful to get everything on the record, and make clear that defense counsel was making a strategic judgment after consultation with his client, and not just some willy-nilly, sleeping-it-off, phoning-it-in craziness.

Even assuming a court were to agree that the defendant preserved the alleged error for an appeal, he would have a high hurdle to leap in making an ineffectiveness claim (the famous Strickland standard). First, he would have to show that counsel's performance was badly deficient -- not just flawed or unsuccessful but objectively unreasonable, something no good attorney would do. I'll get to this in a second. Then, he would have to show that counsel's errors actually prejudiced his case, in that there is a reasonable probability that, but for the error, the result would have been different. (This doesn't mean he has to show that he would have been acquitted, but merely that such a result was reasonably probable, not totally far-fetched.)

Just based on what I've seen in the news, I don't see any way this guy could show prejudice. I mean, they've got him on video abducting the girl, and on tape confessing to her rape and murder, right? It's hard to believe that any attorney could come up with a closing argument that would have avoided a guilty verdict.

But leaving aside the prejudice prong, what about deficient performance? Why would the defense attorney have waived closing argument here? Matt at Abstract Appeal suggests that counsel knew the real challenge in the case would come at sentencing, when the jury would decide between life imprisonment or the death penalty. Standing up at closing and proclaiming innocence in a seemingly open-and-shut case might cause the attorney to lose a lot of credibility with the jury. The jury might also be more inclined to hear a plea for mercy, or a case in mitigation, if counsel hasn't spent any time arguing the defendant didn't do it at all. I think this is probably the best guess as to the defense strategy.

I can think of one other possibility, although it's a little bit more of a longshot, and I haven't seen anything in the news to suggest it. Most states give the prosecution -- the party with the burden of proof in a criminal case -- the opportunity to do the first closing argument, followed by the defense. And then the prosecution gets a final closing, sometimes called a rebuttal. Thus, the prosecution gets the last word to the jury before it retires to deliberate. (In civil cases, the plaintiff -- again, the party with the burden of proof -- gets the first and rebuttal closing.)

I did about twenty minutes' worth of research into this. I have some cites written down somewhere, but I can't place them. If I find them I'll update this post. But maybe I shouldn't, since I certainly don't want to appear to be giving legal advice. I do have a Westlaw password, and this was pretty easy to track down. An interesting aside. Florida has the closing argument order I outlined above, but it flips it if the only evidence the defense offers is the defendant's testimony. In those cases, the defense gets the last word. Neat.

Anyway, I didn't see anything in the Florida statutes or criminal procedure rules, but I did find some older civil cases holding that when the defense waives a closing argument, the plaintiff can't offer a rebuttal (there being nothing to rebut). The plaintiff still gets the "last word," only it happens to be the first closing argument. I have seen cases from other states applying this rule in the criminal context.

What happens in a lot of these really heinous, horrible cases is that the prosecution lays out the basics in the first closing, outlining the evidence and the elements of the crimes. It's kind of an appeal to the jury's brain. And then, after the defense closes with a call for an acquittal, the prosecutor gets the spotlight back. The last word, rebuttal close is often an appeal to the jury's heart. It's the kind of fire-and-brimstone, tearjerking summation prosecutors get famous for. I've seen cases where the defense attorney waives closing argument just to deny this chance to the prosecutor. I don't know if this is what happened in the Brucia case; I haven't followed it that closely and haven't seen any news reports on whether the prosecution got one closing or two. (And again, I don't even know if this rule applies in Florida.) And, the real damnation closing argument usually comes at the sentencing phase, when the prosecutor asks for the death penalty. So, if the defense strategy was to deny the prosecutor an opportunity to make a real spellbinder of a closing, it will be interesting to see if that move is repeated at the sentencing phase.

I still think Matt's saving-credibility strategy suggestion is probably right. But I wanted to mention one other possibility that came to mind. I'm glad I'm not a trial attorney and don't have to make these tough decisions. And I think those other sites have some catching up to do in the strange-case department.

Monday, November 21, 2005

Grilling Milbarge
If you haven't already heard it, surf on over to E. McPan's to hear her interview of me. I'm not sure if it's as good as her audioblog with Fitz-Hume, but it was a lot of fun. We had some technical difficulties, but in the end we came up with what I think was a darn fine audiopost.

Now, there's a rumor that a bootleg audioblog is out there that is even funnier than what we posted. The short version is that I said (actually, sang) something I thought was too goofy to post, and asked to stop the recording. When McPan wouldn't do it, I decided to get even goofier. It turned into a debacle. I wish I had known at the time that all I had to do was say a "questionable" word ("tits") to get her to spew a torrent of curse words and stop the tape. Anyway, I have a feeling that this mystery audioblog will be talked about with the reverence of a Dylan bootleg or the lost city of gold or something. And it may eventually surface if McPan ever gets mad at me, or wants to do a "Behind the Audioblog" segment. It's like the outtakes on a special-edition dvd.

The "missing audioblog" isn't the real me. It's like hearing Porky Pig say "son of a bitch." I'm content to let the audiopost McPan has up be the authoritative Milbarge interview. So check it out.

Sherry asks, "How's your love life these days?" An interesting query from someone who recently wrote, "My love life is none of your business." However, I don't really mind, because even though Sherry's been more eloquent in writing about her love life, I've probably been more open about mine. Or lack thereof. Whatever. So I'll tell you a story that's the truth, but not the whole truth, about my current romantic situation.

Long-time readers will recall my (in)famous "Lamentation" post from almost two years ago. You can go read it if you must, but now it makes me cringe a bit. In hindsight, it seems a little over the top. Anyway, the basics are that I started chatting with this girl I met via the interweb. We hit it off. We lived far away from each other, but she was reasonably close to where I was going to be clerking. She wanted me to come visit; I didn't want a long-distance relationship. Well, at least...I didn't like her enough to get into a long-distance relationship with her, even if I might have been willing to date her if we lived in the same town. We talked less after I decided not to visit, but said helloes occasionally. I never did go see her during my clerkship.

She started getting back in touch with me a few months ago. Mostly small talk, politics, job searches, etc. But she would also comment from time to time about how all her friends are in relationships, and she wants to be dating someone, and even said she really wanted to get married before she's 30. (I think she's 27 now.) Then, a month or so ago, she told me she was going to be celebrating a friend's birthday with a group gathering in a city about an hour from where I am now. The get-together was over Veteran's Day weekend. Then she asked if I would like to come down there and meet her.

At first, I told her I wasn't sure what my schedule was, but that I should be free that weekend. But I was really buying time, because she kind of put me on the spot. A day later, I sent her an email. I said, in essence, that while I thought she was a nice, interesting girl who would be a lot of fun to hang out with, I was getting the clear impression that she wanted something more. (Without reproducing our chats verbatim, you just have to take my word on that. Moreover, although she never said this outright, I think she picked the nearby city as the party destination so she could ask me to visit. That, combined with the things she was saying about her being alone, gave me the impression I had. Anyway, read on.) I told her that I just didn't think of her that way, and that driving an hour to meet her (and take her away from her friends) would, at a minimum, send the wrong signals.

I'm sure she was upset or disappointed. I haven't heard from her since. But I didn't want to lead her on or let her think I saw something more happening. Our chats and phone calls were never "romantic." We talked more about her work on the John Kerry campaign than anything resembling romance. Still, whenever she did talk about relationships or dating, she talked about me and her in way that made me think she saw an "us." I never did, or, again, at least I didn't see enough of a chance of there being something good to justify the distance and difficulty.

So I guess that's over now. I'm not calling this yet another "lamentation" because I can't say I'm too upset about it. I just didn't see anything ever developing with this girl, and decided it wasn't fair to her if she thought there was.

But the good news is that I do feel semi-optimistic about certain other developments in my "love" life. You may eventually get to hear about those, but not now. And I'm even the subject of a blogcrush, so everything's coming up Milbarge!

ALL-REQUEST: Study Groups
Kristine asks "What is the best way to fire a member of a study group? The following conditions apply: the group is only 3 people, he's the only guy, and he is totally excited to keep working together next semester."

I may not be the best person to ask. And no, I'm not going to give you some weepy story about two girls kicking me out of their study group. I never did much group study in law school. I only came close three times. As a 1L, I would sometimes sit around before Torts and talk through the assignment with a couple of classmates. By that point, it was too late to really be "studying," so it was more like just making sure none of us would say anything really stupid once we went into class. I also did some group exam prep before my Admin Law final (I did poorly), and my Evidence final (I did well). So I'm not even really sure how study groups work.

With that caveat, I think the easiest way to kick the guy is also the shadiest. Tell him you're disbanding the group, and then continue to meet with the third member. He'll probably never find out, and if he does, you can just say you were hanging out with your female friend and accidentally started studying.

You didn't say why you didn't want him in your group anymore. If the problem is something you think he can correct, it might be worth giving him another shot. If you just don't like him, that's tougher. I guess maybe you could say that you wanted to use your study groups to get to know other people in your class, but that sounds a mite touchy-feely for law school. It would sound more appropriate to most law schools if you just told the guy flat-out that he was dragging you down.

Without knowing more about how study groups work, and what the problem here is, it's hard to offer a better answer. Sorry, and good luck.

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    The views presented here are personal and in no way reflect the view of my employer. In addition, while legal issues are discussed here from time to time, what you read at BTQ is not legal advice. I am a lawyer, but I am not your lawyer. If you need legal advice, then go see another lawyer.

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