So, a mixed day. First, my boat. Wow. What a nightmare. Am into it for over $10,000 of borrowed money. Long story but a lot of it is at 13.5%. As soon as it is fixed I can get that down to about 7.2%. Big difference. The new motor (pictured here) was a nightmare to get. The people at http://www.remanufactured.com/ are complete assholes. Tonight we actually got onto the water. I actually drove my boat! It was actually pretty funny as when I was told to stop (as the shore was approaching) I instinctively put my foot down on the floor. My mechanic just about pissed himself laughing. However about 15 minutes into it, the engine lost all oil pressure. Bottom line: the engine needs to be taken out, completely rebuilt and reinstalled. Another 50 hours of labor for my mechanic! A lawsuit is about to ensue. Not only did I get the worst customer service of my life from those assholes at www.remanufactured.com but they didn't build the motor right. Now the good news: it is a long story, but I am getting a bit of a financial windfall. I am trading a future problem for some instant cash. It is just enough to give us some breathing room. Whew! This boat has been a nightmare, as has been my butcher shop.
I am frantically trying to get both the boat and the butcher shop ready for the arrival of my friends from California a week from today. Now to politics: I was questioned last time about my concern over how judges in Alaska are selected (as an aside, Operator101, if I don't know you, I would enjoy debating you: you have a keen mind). I think that lawyer Gerry Spence, a personal hero of mine, has it right. Quite simply judges should be drafted. No more elections where people have to sell their souls to get elected and stay in office. No more politics. Simply, the name of every qualified lawyer would be in the hat to be a judge. As judges were needed the presiding judge would draw a name and that lawyer would become a judge for, say, a year. No excuses. Just like jury duty. The lawyer/judge would be paid an appropriate amount. I have yet to find any flaw with this system. First, I do not believe that the collective intelligence of the bench is greater than that of the bar. Second, at least when we got "bad" judges we would not be stuck with them for life (as in the federal system and, effectively, states with the "Missouri system" like Alaska). Third, maybe the judges would remember that, very soon, they would be lawyers again. So, mistreat me now and I'l be seeing you real soon asshole! Fourth, the diversity of judges would increase dramatically. Maybe lawyers who were not prosecutors or corporate lawyers might be judges. Finally, I believe that, because the lawyers would be drafted, they would not be power seekers. Gerry Spence writes about how most judges (yes MOST) are addicted to Power. Whether it is to corporate America or the Prosecutors, most judges are tools of oppression. Gerry Spence goes to say that there is "something wrong" with most judges. So, for what it is worth, I agree with Gerry: let's draft our judges.

P.S. A belated happy solstice. It is with very mixed emotion that I took this picture at midnight last night. I love the summer with its endless light. But I miss the winter and the coziness of the early dark.

PPS. God I love this little girl. It is amazing. I feel like my heart will burst by looking at her. If anything were to ever happen to her, I'm not sure I could live.


Comments

fdr said…
I can see why Ben, she's a cutie.

Parenting will rip your heart out. I've so far survived a 2 year old in traction for 4 days and thenin a body cast for a month and the removal of my eldest son's eye to save his life from cancer. I am sure ther will be more fun in the future w/ 4 kids, but I would not trade it for the world.

I have the song from "Les Miserables" in my head: "To love another person is to see the face of God."
I like the judge drafting system but I have some concerns. What about the trials that take more than a year? Would one judge be stuck with a case until it was resolved or would you get a new judge after every continuance? What does the lawyer do with his/her clients for the year he is a judge? Won't that increase the number of situations in which a judge is forced to recuse themselves?
FDR, you are stronger than I am...if my girl gets a bruise, I feel like I am internally bleeding. Petition..another solution is to appoint a judge as needed for trial. Very, very few trials last more than a year. My longest trial was 2 months and it nearly killed me. The lawyer, and the bar, would have the responsibility of looking after those clients while the lawyer was a judge. And if you include ALL types of lawyers in the judge pool, I really don't think that recusal would be a big problem. If it is, send the defendant or party down the hall to another judge. Gerry Spence writes about all these concerns in his great book "With Justice for None". I highly recommend it to you.
Innocent said…
"We, as criminal defense lawyers, are forced to deal with some of the
lowest people on earth, people who have no sense of right and wrong,
people who will lie in court to get what they want, people who do not
care who gets hurt in the process. It is our job -- our sworn duty -
as criminal defense lawyers, to protect our clients from those people."
- Cynthia Rosenberry.
Innocent....AWESOME!!!!!!!!!!!! That is EXACTLY the way I feel. Wow!
operator101.com said…
You're whole-hearted endorsement of Rosenberry's oft-quoted statement is a bit disconcerting but completely unsurprising. It is the black and white view of the world that the extremists on both sides of the criminal law divide hold that impairs the administration of justice (for that is what, as a country of laws and not men, America is - a bureaucracy).

From a defense attorney I expect (and endorse actually) obfuscation, misdirection, sandbagging, and the silent treatment as to any potential defense. These are all highly-effective tools to get one's client found not guilty (which as we all know is NOT the same as innocent as the jury is not asked to find an absence of guilt) at trial. And such a result is, at times, the most important aspect of a defense attorney's job. Other times, depending on the evidence or (and let's not forget my fellow pragmatists) political situation of a jurisdiction a plea bargain is the only road to take to Damascus. What I also expect from a defense attorney is professional courtesy (depending on the jurisdiction), and no personal attacks.

As a prosecutor I expect myself to be courteous to defense attorneys. I fail miserably at this sometimes with some defense attorneys. When I fail, again depending on the defense attorney, I may feel smug and self-righteous, or I may feel remorse because I shouldn't have treated that attorney like that. I also expect of myself to get discovery (thank you Criminal Rule 16), notices of expert, pleadings, and offers to opposing counsel in a timely fashion. Avoiding "motions to produce" or "motions to compel" is something I actually take pride in because it is up to me, as a prosecutor, to give everything I have against a defendant to his attorney as soon as I receive that evidence. Obfuscation, misdirection and sandbagging a defense attorney would be not only (given my own moral compass) wrong but also in violation of the letter (if not the spirit) of the ethical code.

Why would I expect such things of defense attorneys and of myself? Because, while I can be at times a complete and utter unrepentant asshole, I am a professional. We work in a profession. We are not children at the playground. We are not the scum of the Earth. We are not like those others who are the butt of all attorney jokes. We work to insure justice. We must be concerned at all times with personal liberty.

This is the high road. This is the strong middle. If you, PDA in AK, wish to travel on the shoulder with the other extremists, be my guest. I will treat you will professionalism irregardless.
The bottom line Operator is that I manage (I think and hope) to be professional in my dealing with prosecutors. If you are someone that I practice with (although I know you have said I don't know you) I would hope that you agree. But there is a fundamental difference in how defense attorneys and prosecutors see the world. I, speaking only as one defense attorney, see the government as inherently evil. I see a country where rights are being slowly eaten alive. Prosecutors, on the other hand, argue for the government. It is prosecutors who convince courts to slash at our rights. You are an agent of the State. And, as you correctly point out, there is a great inbalance of power. Thus what is ethical and even expected of me would be wrong for you. Make no mistakes Operator: there are some damn good people who are prosecutors. With very, very few exceptions, they are not my friends. We are in a war for the very soul of this country and we are on different sides. If that strikes you as "extreme", then good. Many times what prosecutors do is wrong. Simply wrong. And I am proud to be "extreme" in my opposition to these actions. I will remain professional, but I do believe that my job is to protect the people from the government.
One other thought Operator. It is clear that you are proud of what you do. That is great. No excuses are being made. But I save my hatred for those who say "I'm just doing my job". As I have written many times before, many of my problems with the police and prosecutors is that there are always police officers and prosecutors willing to stand up for any atrocity. Any infringment of personal liberty. Any violation of civil rights. There were prosecutors in Nazi Germany. There are prosecutors in Guantanamo. Every horrific government and every horrific act of democratic governments is backed up by prosecutors. Prosecutors have argued that people should NOT have right to remain silent. NOT have the right to be free from unreasonable search and seizure. Not have the right to counsel,etc, etc, etc. We know this because these issues are NOT conceded in the courts of this land. In every contested case there is a prosecutor arguing for more power to the government and less to the people. So, as I wrote before, lets not confuse our duty to be professional (and I agree it is a duty) with a realization that this country is going to shit with prosecutors at the helm.
operator101.com said…
If, as you write, this country is going to shit, I'd disagree as to it's cause. It is not, as you write, the fault of prosecutors. That is an incredibly naive and simplistic view and simply highlights the extreme position you argue from. If this country is going to shit (an opinion I am unwilling to fashion as my own but I will not take a contrarian view at this time, rather, I will simply assume arguendo it is and take an opposing view as to the cause) it is because of child molesters, murderers, rapists, pimps, burglars, thieves, vandalism, dishonest and corrupt politicians, arsonists and all the others society labels as 'criminals'. These are the people responsible for keeping you and I employed. These are the pieces of garbage that cause 'this country to go to shit' And, mind you, I am only keeping such a narrow focus on the cause of 'going to shit' because of the extremely narrowly focused view your position holds.

Step back away from your position. Brainstorm. Think of all the mechanisms in this world that have caused our country (don't you love it that I include you, a Canadian, in my plural possessive? that's one of the multitude of things that makes America great - acceptance of the foreign-born) to go to shit. Become William Jennings Bryan for an hour or so as you write down all the evils you can imagine. Embrace your inner-Progressive (minus the Scopes-Monkey trial shenanigans) and EXPAND your thoughts for the good of everyone! Hell, let me pander to your paternal weaknesses and write, 'think of the children.' It's not just about prosecutors, defense attorneys, judges and criminals. Be concerned about your neighbors. Be worried (if you're a pessimist) about what is around the bend for your daughter. Will she have a job when she grows up? Will she have to learn Mandarin? Is something going to go horribly wrong with the environment? What about the 'series of tubes' that Uncle Ted is talking about? Aren't you in a position to make your community better? Stop yelling and screaming 'prosecutorial misconduct' at the courthouse steps in Kenai. Don't blame the prosecutor when your client is found guilty. Don't sulk when the jury only deliberates for 15 minutes (what about their free lunch? didn't they want to stay and eat it before returning a verdict?) and your client is remanded.

Chin up. Breathe deeply. Think of all the good work you, YES YOU!, did for your client. You did your best. The jury didn't convict because they're paid to convict. The jury didn't convict because the judge is out to embarrass you. The jury didn't convict because the prosecutor hid exculpatory evidence. The jury convicted because (gulp!) your client is guilty.


Oh, and we don't practice together. I'm up the road a little bit in Anchorage. It's all on my website.
Still Innocent said…
Any run of the mill prosecutor can convict a guilty person. It takes a skilled and dedicated prosecutor to convict an innocent person.

No Crying in Baseball and Prosecuting
As usual, Operator, your comments are well written and well reasoned. I can't say I have ever screamed "prosecutorial misconduct" in Kenai. I disagree with many things the DA does but I can't say anyone over there has ever acted unethically with me. Believe it or not I am looking at the big picture. I'll take my chances with the "criminals". I worry about global warming. About excessive government breaking people's fingers while the People cheer. I worry about the legacy of freedom my daughter, as an American, is entitled to inherit. If we ever do have a case together you will see that I am a practical defense attorney. I am well aware that many of my clients are guilty of something. I am not a starry eyed law student. But I stand by my comment: this country is going to shit. It is not the defense attorneys causing it. It is people like Bush, Scalia, Cheney and Karl Rove, all of whom I would classify as "prosecutors". Or maybe predators is a better term. Of course, it is a HUGE picture, as many Americans want those people in power. You should be proud that you are an ethical DA. But that does not take away from the fact that my job is protect my client from you. From all DA's and cops. And history has shown that it is the government that is the greatest danger to the people. So, yes I do worry. But at least my daughter is Canadian too! P.S. I discovered your site AFTER I wrote the last comments. Now I know.
fdr said…
This cop appreciates the excellent discussion here.....
Placer County California said…
Ben,
I find great comfort in the fact that your opinion on DAs, government, and the system in Alaska is identical to your view of the same in California. GO DO TALK RADIO.
- Your favorite California DA
I'll never change. F^%$ the government. I need it for nothing and I want it for nothing. Leave me alone. Government is good for nothing. I'll fight them until I die. You know me JH: I would rather die than change my attitude about this.

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