An object lesson learned during the trial: co-defendants’ counsel repeatedly referred to the alleged three-on-one mugging as a “fight.”  This made sense for the alleged stabber, who was running on self-defense, but it opened the door for the prosecutor’s closing argument ”Ladies and gentlemen, this is not a complicated case.  This was not an old-fashioned dust-up, it was an old-fashioned BEAT DOWN!”

I have to give him props for the rhetoric, even though I wanted to beat him down when he said it.

The prosecutor, who is really another first-year public defender, later told us “I had no idea how to do a prosecutor’s closing.  I figured it should be just like the opening, only with more yelling and embellishing.”

Yeah, that’s about it.  Oh, and tell the jury to ignore the law.  That was a good one too.  Especially the part where the judge overruled our objection to his saying that.

Dicta was conceived during New Lawyer training this year and carried to term by new lawyers Alejandro Ramos (Springfield DCU) and Andy Cowan (Lowell DCU). The blog will be serving sentences (as well as paragraphs, phrases, and even articles) at http://www.dictablog.net.

Dicta is intended to have a threefold mission: first, to give an agency full of storytellers a place to tell stories. Second, to give the general public an insight into the world of the criminal court and general legal news that they simply don’t get from the mass media. Third, to give CPCS an (unofficial) presence in the tightly interconnected public defender blogosphere.  Basically anything related to the law is on-topic.

Incorrigible Dicta will largely, if not entirely replace the “on the legal system” section of Mostly Plants. I may cross-post some articles, and occasionally post one here, but most of my legal commentary will be there.  Hopefully some of my readers will stick around for the travel and outdoor posts, though I notice my legal commentary is by far the most popular.

Please allow me to address some common arguments from opponents of Question 2.  None of these are “straw” arguments that I made up just to tear them down, they come from the statement of the President of the MA district attorneys association here [MA sec of state's webpage].

• Question 2 is an endorsement of substance abuse
  Substance “abuse” is a level of use that compromises the user’s physical and mental health, or the welfare of others.  While it is true that any use has some incremental health effect, to conclude that all marijuana use is abuse would require you to conclude that having a glass of wine with dinner or a cup of coffee with breakfast is “abuse” of alcohol or caffeine, respectively.
• MA law already requires judges to seal the records of first-time offenders
  A sealed record is not the same as a non-record.  Records are sealed, rather than destroyed, because they are still accessible to DAs, probation officers, judges, and some others in the future.  For example, when applying to law school or applying to sit for the bar, one is often required to disclose sealed convictions.  Under existing law, a bar applicant who has a first-offense possession conviction would have to disclose that fact to the Bar Examiners.  Under Question 2, the violation would never be entered in the criminal record database, and would not be a “conviction” that the applicant would have to disclose.

  Furthermore, some casual users get caught more than once.  Even under the current law, a person who is caught with a joint for a second time will have a wide-open criminal record.

• “Decriminalization emboldens and enables drug dealers”

  Question 2 would maintain the current criminal penalties for distribution or possession with intent to distribute.  No free passes for dealers here.

• 40% of criminal arrestees test positive for marijuana

  Without inquiring into the accuracy of that figure, I bet a similar number of non-arrestees would test positive too.  And let’s not forget, many of those people were arrested for possession and use of marijuana.  In order to have a truly useful and persuasive number, you would have to show that marijuana users are actually more likely to commit non-marijuana crimes than non-marijuana users.  That’s an inference the DAs would like you to make from the 40% number, but it’s wholly unscientific.

  Let me put it another way: how many criminal arrestees test positive for oxygen?  100%!  Let’s ban oxygen!

• Marijuana use “is a primary factor in juvenile hospital admissions”

  What on earth does that even mean?  What’s a primary factor?  This isn’t data, it’s propaganda.

Pro bono work primarily is an “antisocial” and self-serving activity lawyers use to develop their skills, firms use to recruit and “give solace” to associates, and nonprofits use to further a political agenda, Judge Jacobs argued.

In particular, litigation against the government and government officials and impact litigation are attempts to improperly expand the courts’ reach in legislative matters, the judge said.

These were his remarks to a gathering of the Federalist Society in Rochester, NY.  More at The Daily Record, Legal Blog Watch, and the American Constitution Society blog.

Judge Jacobs then goes on to deride pro bono practitioners for “honor[ing] each other, sometimes over and over.”

I’m sorry.  I guess the 400 hours that I spent in New Orleans helping indigent families clear title to their damages homes were purely for my private benefit–and perhaps their private benefit.  No public good (or bono publico) arose from that work.  It certainly didn’t improve property values in New Orleans by allowing neighborhoods to be cleaned up and rebuilt.  Nor did it improve overall morale in the city.  It definitely didn’t reduce homelessness or overcrowding in the city’s residential areas.

Oh, and all those indigent criminal defendants?  If they really needed representing, they’d hire somebody.

The Orange County Register is being sued by 6,000 current and former newspaper carriers on some labor law issues that are not all that interesting.  What is interesting is the two cases where the Appeals Court thinks prior restraints are justified: troop movements in war, and anything that would bring about a nuclear holocaust.

Normally I agree with the old adage that those who would sacrifice liberty for security deserve neither.  But I think I’m okay with sacrificing some liberty to prevent the End of Days.

Well done, court.  I think that’s a fine place to draw the line.

["Victim" testifies that she was out riding her bike during an ice storm in December when she suddenly saw headlights, heading straight for her.  She blacked out, and the next thing she remembers, she's on the ground with her bicycle on top of her. She has trouble getting up, due to "all that extra weight" from being three weeks pregnant--although she says she did not yet know she was pregnant."]

Question, by defense counsel: You’ve filed false police reports before, haven’t you?
DA, indignantly: OBJECTION!
[Brief sidebar conference]
THE COURT: Objection overruled.
Q: You’ve filed false police reports before, haven’t you?
A: That’s been reported
Q: In fact you’ve admitted to it.
A: Yes.
Q: In this very court!
A: Um.  This court? Oh, yes
Q: Under oath
DA: OBJECTION!
THE COURT: Sustained
Q: Well, do you know that it’s against the law to lie to police?
DA: OBJECTION!!!
THE COURT: SUSTAINED!!!

Those of you who watch Law and Order may think this is an every-day thing.  I assure you it is not.  It is a rare moment of joy to actually see a witness (who is clearly lying about the present case) sit in the chair and tell the jury that she files false police reports.  Wow.

First, I provide a link to the text of 42 U.S.C. § 300a-7(c)(2) (2008), for your reference.  This is a Congressional law, passed by the House and Senate and signed by the President.  Only that process can change it–any HHS reg that purported to change it would be void.

• RHRC: HHS Secretary Leavitt “admitted that it could be read to include contraception in the definition of abortion.”

  BorealNemeton: This allegation is based on a WSJ article that RHRC links from their blog.  In that article, Leavitt admits that some anti-choice groups would try to say that contraception is abortion.  He doesn’t say that’s a fair reading of the reg, and it’s not.  The fact that Pharmacists for Life says they’ll do just that… is entirely irrelevant.  Pharmacists for Life is not a lawgiver, nor a dictionary.  I don’t care if they say abortion means the baking of cookies, it’s just not true!

• RHRC: The rule would allow legal challenges to state laws that require pharmacists to either dispense contraceptives or make referrals to pharmacists who will.

  BorealNemeton: This refers to a provision in the proposed rule that defines “assist in the performance of” (as used in the statute) to include counseling and referrals.  These challenges were open  under the statute, without a reg, but here’s how the reg helps.  Using the “Chevron Two-Step,” if a court finds that the statute is unclear about whether “assisting” includes giving referrals, they defer to the agency’s reasonable interpretation.  Still, a court could find that there’s no ambiguity at all, and the answer is no.  Or, without this reg being around, the court could find that the statute does mean that.

  Even if these state laws are struck down, the states have an easy solution: the state itself could easily provide a web directory of pharmacists who want the business.  Problem solved.  Still, this is the biggest problem with the proposed reg.  If you want to write a comment that will be helpful to HHS, I’d target this piece.

• RHRC: Although the rule mostly refers to abortions and sterilizations, once section refers to “health service program[s] or research activit[ies].”  “This is an exception you could drive a truck through.”

  BorealNemeton: It’s not an exception.  It doesn’t broaden existing law.  §300a-7(c)(2), cited above, is not limited to abortions and sterilizations, but refers to “lawful health service programs.”

• RHRC: Existing law only protects doctors and nurses with religious objections; this reg would protect all employees, whether their objections are religious or simply moral.

  Borealnemeton: Existing law protects all employees, whether their moral objectsions are based in religion or not.  And as a person who has a much better-developed sense of ethics than sense of religion, I see that as a good thing.

• RHRC: To the extent that it doesn’t change existing law, this reg is unnecessary.

  Borealnemeton: Well, there’s some truth to that.  Clarification and guidance are useful, but not necessary.  You know what else is unnecessary?  Mobilizing the feminist and progressive armies for something that is merely ‘unnecessary.’  This is why I’m spending so much time on this issue and reading and writing so much about it: because so far as I can tell, it’s just a massive cry-wolf by a bunch of groups whose calls-to-action I will be less willing to trust in the future.

Below is the reply that I posted to a friend’s call to action on her livejournal–giving some background, then explaining why I think this is all overblown, and the HHS proposal is no big deal. If you disagree, please comment and explain why.

Here’s what the proposal would do, if enacted:

A set of laws dating back to 1970 provide that no recipient of federal funds may discriminate against health care providers for their refusal to provide or participate in providing services that they have a personal moral objection to. That would include Jehova’s Witnesses doing blood transfusions, and potentially catholics writing birth control prescriptions. That much is not new, and not changing.

Recently, the American College of Obstetrics and Gynecology proposed a rule that no OB-GYN could be certified as “competent” unless they demonstrated a competence at performing abortions. This made HHS mad. And I think, rightly so. If all you want to do is deliver babies, and you think abortions are wrong, you shouldn’t be forced to choose between doing abortions and not being able to deliver babies.

So the new regulation:

* Defines “health care provider” to include any employee of an organization that provides health care services.

* Defines “assist in performing” (objectionable services) to include any form of assistance–and gives the example of an employee whose job is to sterlize surgical instruments but objects to sterilizing instruments used in abortions.

* Requires recipients of federal funds (hospitals, clinics, etc) to say that they are complying with the law

* DOES NOT make any reference to birth control, define abortion, or redefine birth control as abortion. Rumors that the regulation did so were based on an early draft that got leaked, but was never made official (even as a proposal, let alone a final rule)

I have a copy of the proposed language that I will happily forward to anybody who wants it, or you can download it from Regulations.gov

Don’t let the 47 pages deter you from reading this proposed regulation. The first 21 are background, the next nine are “impact analysis” (you don’t need to read this), and the final twelve are the actual proposed regulation–which pretty much does what the summary in the first twenty pages says it does.

And now for my own opinion: this is just not as big a deal as it’s been made out to be. And I take issue with the description of it as “far-reaching:” it’s not changing a whole lot. As far as abortion is concerned, the doctor’s right not to perform them if s/he doesn’t want to is almost forty years old, and this regulation does not change that. It doesn’t really change anything with respect to birth control either. The ACLU says that it “leaves open” the possibility that doctors could refuse to write birth control scripts, and that’s true–because the laws that create that possibility were passed by Congress, and HHS does not have the power to undo them.

Don’t get me wrong–I think the idea of a physician prescribing “hope, rhythm, and prayer” to a patient who wants not to have babies is morally repulsive, and I think any woman who gets that kind of advice from her doctor should slap him in the face and never go back. (Kicking in the balls, if applicable, may seem attractive, but is probably more likely to lead to legal trouble for the patient). That said, I’m not sure how the right to control one’s own body includes a right to assistance from the body of another, when that other finds the purpose or means of control morally repulsive. I suppose that’s a lawyerly way of saying that my right to swing my arm ends where your nose begins, or where I need your help to swing it and you don’t want to.

That said, all the hoopla and public-commenting do have value, insofar as they say to HHS: “we’re watching you. Please don’t try any funny business.”

WHILE THE PROTCUHS AAH COLLECTING THE EXAMS, THE BOAHD OF BAHR EXAMINUHS WOULD LIKE TO MAKE THE FOLLOWING ANNOUNCEMENT:

THIS AFTUHNOON

WHILE YOU WERE TAKING THE EXAM

THE BOSTON GLOBE REPOWAHTED

MANNY RODRIGUEZ HAS BEEN TRADED TO THE DAWGUHS!

Those who have never studied law may find some of these funny, but I make no warranties.

Best wishes to all who must endure what this week brings–and if anybody reading this took the Louisiana bar, you are already done, and I do not want to speak to you for the next week (except Ariel.  And Josie.  Okay, I do want to speak to you, just not about the bar exam.)  But you may still enjoy the quotes.  I apologize for the lack of usufruct jokes–we don’t have those up North.

And because this post contains some statements of positive law, and because Paul Lisnek tells us to presume non-lawyers are morons for professional responsibility purposes, I feel compelled to tell you that you would have to be a moron to think that anything in this post (or elsewhere on this blog) is legal advice.  If anything here seems to speak to your particular situation (for example, if you have been having sex with a seventeen year old in MA and filming it), do not rely on these quotes.  For the gods’ sake do not comment about it or contact me.  Get a lawyer.

Michael Simons–Criminal Law and Procedure

Death by lightning is not a natural and probable consequence of a mugging

You can’t burglarize your own house, but it happens with some regularity on the bar exam

In Massachusetts it is legal to have sex with a seventeen year old, just don’t take any pictures. That’s child pornography.

The last thing you want is for a Mass essay grader to think you’re from New York!

Drugs.  Yes, they’re illegal.

We’ve been at this for two hours, and so far what have you learned? BAR PREP IS BORING!!

Eye rape is not a crime, thank goodness!

Bob Cohen (you know him)

I’m a covenant, I’m a covenant, I’m running with the land!
–New York Bar examinee

I used to ask myself, should I go to my dentist and get a root canal today, or should I study property? The root canal usually won out.

If you think he’s in the closet and he’s not, but in the closet is a baggie labeled “fleeing felon’s heroin,” you can take it”

Paul Lisnek (you had him for the MPRE.  You may have also seen him on CNN)

What is the most severe thing the bar can do to you for violating its rules? We fill in number four, “lethal injection.”

For purposes of the bar exam, laypeople are morons

Once dead, the world is on notice that you’re probably not practicing anymore. Except where I live in Chicago, where we’re never quite sure.”

Ambassadorships are permanent even when the country is temporary

Law professors are like dead lawyers

David Epstien

Armadillos from Texas Play Rap Eating Tacos

If you have an unlimited number of people, an unlimited number of chainsaws, and an unlimited quantity of beer, you can level any stand of trees within a year

He’s got my damn grits!!!

There is no masturbation in contract law!!!

Misspelling parol is going to cause whoever is grading that exam to turn off the Sox game and pay more attention to what he is reading. We don’t want that to happen!!!

Maybe parol is how people in early England said “oral.” Maybe they went around having parol sex!

You cannot simply see two numbers on the bar exam and say, ‘aha, I am subtracting!’ Read the damn question!

What is the point of this hypo other than another gratuitous, cheap shot at Conviser? Well, that’s about it…

As luck would have it, they have recenty extended the internet so it reaches all the way into Texas!

Chemerinski

Congress may have thought having a national bake sale would be a good way to raise a lot of dough!

Paula Franzese

This is a time in your life that you deserve to be feeling some happiness. But this right now, this is not about happiness”

The person we have to thank for all of this is named, appropriately, William the Bastard

Gawd bless you. Gawd bless all of you.

“…and in any event, all of that is irrelevant.”

“An ounce of history is worth a pound of logic”

“We wrote the statute! That’s why they hate us!”

“I live for property. I’ve been teaching property for 22 years. This is my life. And even I’m bored!”

“This too will pass. And so will you.”

“Golf clubs in your hands would be consumer goods. Golf clubs in the hands of Tiger Woods would be equipment. Golf clubs in the hands of Golf Emporium would be inventory. Golf clubs in the hands of a deviant farmer would… never be a good thing.”

Richard Freer

We’re going to assume here that Elvis is dead

It just feels good to say to the bar examiners, “hey, FQ pal!”

We never remember how many c’s and how many r’s in occurrence anyway!

In recent years, the Mass examiners have shown no interest in Erie, so we have something in common with them.

Watch for Hypo #2. It’s the only sexy thing left in venue!

I bet number two is on the next page. Should we look?

Supreme Judicial Court. Because people were going to confuse it with the supreme racquetball court!

Mike Sims

The California Supreme Court has ruled that it is not malpractice to not understand the Rule Against Perpetuities

If you have a pulse and a conscience, you should be able to handle the PR questions.

If you are not the one person in the world who understands commercial paper, let me give you my guide to faking it.

You know what lawyers do, right? We fling paper at each other!

If you don’t know any law, learn some. It will help you.

Wanna have some fun with the bar examiners? After you get done inventing your rule, invent an exception! Then move from your rule to your exception

You did what we all did! You got some Gilberts and some Emmanuel’s and you got drunk! But you couldn’t tell anybody, it would ruin the mystique!

Michael Kaufman

As you know by now, I am very very weird!

I’ve got a hunch—a very strong hunch—a hunch that this is coming soon to a bar exam near you!

Stanley Johanson

Neither presumption arises if will was last seen in the possession of someone adversely affected by its contents. Then the presumption is hanky panky.

You gotta use human lives! You can’t use cats, that wouldn’t be fair! They got nine of ‘em!

Making her money the old-fashioned way—she married it!

It’s not nice to kill your father—especially with a dull ax!

Faust Rossi

All they could come up with was the tort of seduction of a previousy-chaste female. That’s obsolete. The tort, that is.

You leave that kind of wild speculation to law professors who are drafting examination fact patterns while on cocaine.

(See also the Spring, 2007 edition of Professor Quotations.  Those that were repeated are omitted here)

Roger Schechter

You could learn this subject out of the national enquirer!

Prostitution is illegal. Just because you structure it as a requirements contract doesn’t change the analysis.

I suggest Susan’s approach. If you see that same-sex marriage question and you can’t deal with it, answer it as if it’s a corporations question!

*Previous installments were published only to Cornell Law students