Wednesday, August 31, 2011

Meg is back in New York. We all heaved a sigh of relief that New York escaped the hurricane relatively unscathed. Today Meg returned to the city she has taken to calling “home.” Soon I will be joining her.

The entire situation has a certain surreal quality. I am sitting in an apartment topsy-turvy with books and other junk spread out all over, just trying to figure out what to do with everything I own. The thought of actually packing my car, driving across the country, then finding a place to live seems like more of a tv show pilot than my life. A month seems like a long time, until I tally up everything I have to do, then it seems like a blink of an eye.

New York itself is intimidating. I have been there many times, but the only time I stayed there for an extended period I found life difficult. Adjusting to all those people, everywhere, all the time is a major switch. While I grew up in Chicago, a big city but not New York, I have lived in Denver for 33 years. This change may be uncomfortable for a while.

Still, I am excited. New York is so much fun. It is vibrant, and exciting, and full of everything. During the summer they play baseball every day in New York. Broadway has 33 shows. The library is awesome. Most of all, Meg is there. I will be able to see her perform. No more six months between visits.

I don’t know how this will work out. But I can go anywhere. If not New York, maybe Chicago where I still have family, or Boston where I went to college. There is only one way to find out.

Underlying everything is the knowledge I can always come back to Denver. I plan to maintain ties to all my friends here through the miracle of modern technology. (I actually have some Facebook friends.) Should life elsewhere not be what I expect or want, Denver will be here. Who knows, maybe the DA’s office will let me work there for a fourth time. (But please no more plaques.)


# posted by Miles Madorin : 7:50 PM  0 Comments

Tuesday, August 30, 2011

I mean seriously. You have to read this one to believe it. Two grown children sued their mother for causing them emotional distress by being a bad parent. Maybe you could understand it if she beat them, locked them under the stairs, or kidnapped them in violation of a court order. However, this was nothing like that. The children alleged their mother failed to give them money for their birthdays, told her son to wear his seat belt or else she would call the police, and called her daughter to come home early from homecoming. Early was midnight. The trial court threw this garbage out and the appellate court upheld that ruling.

However, according to one report, the mother cannot get attorneys fees. The kids’ attorney’s fees? No problem, they were represented by their father, who had won a child custody case against the mother when the two were children.

This is why people lose respect for attorneys as a profession. As far as I am concerned not only should the prevailing mother be allowed to collect attorney’s fees for defending a frivolous action, she should be allowed punitive damages, and the father should face disciplinary action. He won’t. Lawyers who pull crap like this never face disciplinary action. (I will resist the temptation here to go into a diatribe about attorney discipline.)

Can you imagine if this kind of ridiculous bullshit found a sympathetic judicial ear? I am pretty sure I failed to get Meg a birthday present this year. That would be worth a few thousand dollars in emotional distress. I remember when she was about 12 she was in acting camp and gave a monologue at the camp’s performance. I had to miss it because I was judging in night court (and thus, solidifying my credentials for Supreme Court justice). Certainly, Meg’s psyche was severely damaged. I mean come on.

When did people get the idea the answer to everything is a lawsuit? It seems every issue in American life ends up in front of judges. Believe Colorado schools aren’t properly funded? File a lawsuit relying upon a vague statement of principle in the state constitution to force more funding. Think Obamacare is a bad idea? Get your Attorney General to sue the federal government and that way the tax dollars you whine are being wasted can be spent to pay for attorneys on both sides. Concerned that some insignificant rodent will lose its habitat if we build a dam to make life better for millions? Have a federal judge enjoin the whole thing for decades to figure out how to save the thing that you would set a trap for if it came in your house. On and on and on.

I know lots of judges. Many of my best friends are judges. Judges are by and large, smart, impartial, and dedicated to applying the law the way they believe is correct. However, I am not convinced that judges should resolve every single problem people have with each other. Sometimes, you just have to take your lumps. I mean really, should judges be deciding whether some school’s dress code is too restrictive? I don’t want the government to violate anyone’s constitutional rights, but how minute should that protection be?

I understand protecting constitutional rights. When drafting legislation it was one of my primary concerns. (For those of you turned off by my arrogance now would be a good time to stop reading. I am going to blow my own horn here and it will get pretty deep in a second.) The best drafting I think I ever did was the funeral protest bill of 2006. Everyone knows about the Phelps church people who picket the funerals of soldiers all across America in some kind of protest about homosexuality. Following one of these disgusting (but constitutional) displays in Colorado, the legislature wanted to pass legislation to stop it. The first bill I saw I felt was clearly an unconstitutional violation of free speech. After a great deal of research I drafted some legislation I think would allow restraints on their behavior, but not a strict prohibition. Fortunately, we were able to get the law passed pretty much as I drafted it. (Don't get confused by the headline on the article, it doesn't reflect the copy.)

The Executive Director of the ACLU said this law as written could not be challenged on its face. Phelps and his followers, despite claiming the law would not deter them, have not been back. I mean, how good is a criminal statute that once passed never has to be enforced because the offensive behavior has been deterred? I have not closely read the U.S. Supreme Court opinion about Phelps which was issued following the drafting of these statutes, but I don’t believe most of what I drafted would be subject to attack. But I am sure, someday, its constitutionality will be determined by a panel of judges.


# posted by Miles Madorin : 8:11 PM  2 Comments

Monday, August 29, 2011

There is an opening on the Colorado Supreme Court. I need to get my application together. What? You think I am not qualified? How dare you.

First, I have judicial experience. True, it was only as a part-time judge in municipal court, and I got fired from that, but that is more judicial experience than a lot of Supreme Court justices had before taking the bench. I think presiding over several speeding and a couple of dog at large jury trials well-prepares me for the kind of decisions the Supreme Court has to make. Admittedly, I was never required to make a lot of legal rulings, but serving as a municipal judge put me in touch with the people. I realize my demeanor being in touch with those people is what got me fired, but hey, Joe Torre was fired three times before he became manager of the Yankees. We all learn from our mistakes.

Plus, I have appellate experience. I wrote about 60 briefs for the Attorney General’s Office. Yes, only one was in the Supreme Court. And in that case, while they first accepted certiorari and agreed to hear the case, following oral argument they changed their mind and dismissed it as “improvidently granted.” Which was my second experience in front of the Supreme Court. The first time I persuaded them to hear my Rule 21 appeal of a district court ruling from Georgetown, but after all the briefs were filed they dismissed that one, too, as “improvidently granted.” Not such a good track record at the highest level, but, still, I do have some appellate experience. Some Supreme Court justices had none prior to their appointment.

Also, I have extensive professional experience at many levels of courts; in both urban and rural areas; and in many aspects of criminal law. So, while some might call my career “checkered,” I like to think of it as varied and diverse.

You might be thinking there must be better candidates. For example, my friend Bob Russel who made the final three for the last opening a year ago. Sure, on the face of it, Bob appears to be the superior applicant. He has served on the Court of Appeals for the past eight years, following stints as the supervising prosecutor in the appellate sections of both the United States Attorney’s Office and the Attorney General’s Office. Excellent preparation for the Supreme Court, but not nearly as good as working night traffic court. Bob is perhaps the most intelligent person I know, but really, how important is intelligence for an appellate judge, I mean compared to a varied and diverse career? Bob is also widely-respected and universally-liked. But the Supreme Court is no popularity contest. Someone with an edge, like me, might be able to shake those other justices up.

Tomorrow I am going to get to work on my application. It will look a little light since in the past five years I have only tried a single case and handled no appeals. However, I did advisements about 500 times. How many other applicants can make that claim? I need to get five people to write letters of recommendation. That might be a problem. But I have written a lot of letters for other people. They owe me. Hopefully they will forget about the other stuff.


# posted by Miles Madorin : 6:04 PM  0 Comments

Sunday, August 28, 2011

Grammar

People have asked me: “Shouldn’t your blog be called ‘Miles’ Blog’ and not “Miles’s Blog’?” No.
This is from the Elements of Style:
1. Form the possessive singular of nouns with 's.
Follow this rule whatever the final consonant. Thus write,
Charles's friend
Burns's poems
the witch's malice
This is the usage of the United States Government Printing Office and of the Oxford University Press.
Exceptions are the possessives of ancient proper names in -es and -is, the possessive Jesus', and such forms as for conscience' sake, for righteousness' sake. But such forms as Achilles' heel, Moses' laws, Isis' temple are commonly replaced by
the heel of Achilles
the laws of Moses
the temple of Isis
The pronominal possessives hers, its, theirs, yours, and oneself have no apostrophe.
And no, mine is not an ancient proper name. (Keep your comments to yourself.)
This is actually the very first rule in the Elements of Style, but one which is often disregarded. The Elements of Style have a special place in my heart. In my first year as a journalism major at Boston University, I took a magazine writing class. The professor was a venerable veteran of the magazine business named Tim Cohane. He would have been about 60 at that time, but he seemed older than invention of the printing press. Professor Cohane had been sport editor of Look Magazine for over 20 years. Most people now have no memory of Look, but for a time it rivaled Life Magazine as a publishing force. Cohane knew everyone in the sports world. He had written about Vince Lombardi as a player, Jackie Robinson as a rookie, and Muhammad Ali as a amateur. For an aspiring sports writer Cohane spoke from Mt. Olympus. (Really, you have to know what that is.)
While most of us journalism majors wanted to write with style and flair like Jimmy Breslin, Cohane came from an older school. And, like most old schoolers he believed in the fundamentals (for example not starting a sentence with the word “and”). The fundamentals were The Elements of Style. Not only did he drill that book into our heads, we had a test on it every Monday. This is why I will never forget rules like “In a series of three or more terms with a single conjunction, use a comma after each term except the last.” And why I will never misuse the word “comprise.” (A zoo comprises animals, animals constitute a zoo.) People who have seen me edit their work have heard these sorts of things come out of my mouth. I am a disciple of Cohane, the Elements are gospel.
(Excluding of course rule 9 in the chapter on “An Approach to Style”: “Do not affect a breezy manner.” This is one I could never agree with. I would summarize my style as “breezy.” A big problem. Here is what Strunk and White say about a breezy style.
“The breezy style is often the work of an egocentric, the person who imagines that everything that pops into his head is of general interest and that uninhibited prose creates high spirits and carries the day.”
Oww. The truth hurts. But I think exceptions can be made for blogs and similar kinds of personal expositions. However, I cannot deny the accuracy of the analysis.)
At any rate, I went to college completely lacking in the fundamentals of grammar. In the 60s, primary and high schools deemphasized grammar in favor of content. It mattered not how you said what you had to say, educators placed importance on the merit of your position. Writers like e.e. cummings and James Joyce had thrown away grammar and were hailed as geniuses. Educators, desiring, I suppose, to show how enlightened they were, jumped on the no-grammar bandwagon, allowing us fledgling cummingses to flounder around in the English language like a child thrown into the deep end for his first swimming lesson.
One of my English teachers, a Mrs. Benade, herself a seeming old battle-axe in my memory, but probably in her early 50s, refused to accept the modern school and tried to inject grammar into her class. Refused the right to fail the garbage her students regurgitated, she gave use split grades, one for content, one for grammar. I would consistently get A/F. I passed, we all laughed. To this day I can’t diagram a sentence to save my life.
This stopped being funny when I went to journalism school. Professional journalism in those days, before Chris Berman had reduced sports writing and broadcasting to little more than a frat party, still rested on a foundation of fundamentals. e.e. cummings never made a living writing for Look Magazine. I still hear Cohane in my head when I write—don’t use passive verbs, use strong verbs, and my favorite, “too many ‘ing’ and the copy no sing.” He would always laugh when he said that. I remember distinctly one day he was waxing poetic about something or another, which he did regularly becoming more entertainer than instructor, and he referred to the “blue empyrean.” Yeah, I didn’t know what it meant either. In fact, nobody in the class knew what it meant. For you young people, remember that in 1973 we could not immediately use our cell phones to look words up on the internet. We all scrambled for a dictionary the first chance we got.
Every journalism major in the school took that class. Everyone who worked on the school paper was a journalism major. We would sit around editing the paper repeating the Elements rules like a religious mantra. So when I called it Miles’s Blog, I knew what I was doing.
Astonishingly to me, however, is the consistent misuse of the apostrophe. For some confounding reason people seem to have utterly lost conception of how to use the thing. I consistently see words in the plural written with “ ‘s.” I would read police reports, for example, and the officer would write “We arrested the suspect’s.” On occasion I would read legal writing with the same impediment.
Whatever has caused it seems to have warped the minds of people in both directions. Not only are they adding the apostrophe when improper, but they seem to have forgotten it is necessary in abbreviations, for example “what’s up?” (I know, the terms “what’s up” has been replaced by “sup” or some such rap abbreviation. I attribute the loss of grammar skills primarily to modern music groups which seem to revel in misspelling words and fracturing grammar.) The apostrophe is necessary in “what’s up” because it is an abbreviation of “what is up.”
Someone at Old Navy failed to grasp this fundamental concept in their new t-shirt line. Old Navy produced and offered for sale shirts tied to college football programs. The shirts sought to show support for the teams by using the phrase “Lets go USC Trojans” and the like. You caught the problem, right? “Lets go” is what someone does when they have been hanging onto a chin-up bar too long. “Let’s go” is how someone implores their gridiron warriors to press for victory, being an abbreviation for “let us go.” (I realize no one would say “let us go Trojans” except perhaps their prisoners, but “let’s go” is a colloquialism.) Of all things to screw up, t-shirts for college football. Had they been t-shirts for gansta rappers no one would have noticed. Old Navy has to recall thousands of these. You can bet whoever made this mistake never had a class from Tim Cohane.

# posted by Miles Madorin : 8:19 PM  4 Comments

Friday, August 26, 2011

Trials

I am always the first person who decries anyone who comments on a legal proceeding based upon what they read in the newspaper or hear on television. Without knowing the full context of what happened in court no one can really intelligently comment. However, a couple of articles in today’s newspaper have inspired me to break my own rule, realizing I could be way off base.
A murder trial in Denver resulted in a mistrial when the prosecution’s star witness, the defendant’s girlfriend, blurted out, apparently despite repeated admonitions, that the defendant was a sex offender. At first blush this seems to be an accurate ruling. Under the Rules of Evidence, even relevant evidence should be excluded if the danger of unfair prejudice substantially outweighs the probative value. Certainly a jury knowing a defendant is a sex offender carries the risk of extreme prejudice. Only were the information significantly probative should the prosecution be allowed to present such evidence, if the information is relevant at all. OK, fair enough.
The article, in an unusually complete reporting of context, related that the witness volunteered this information in response to questions about why the defendant refused to call 911 to get help for the child he is accused of strangling to death. Why did he balk? According to the witness because he was an unregistered sex offender and calling risked exposing him. Whoa! That puts an entirely different spin on this evidence. I don’t know the facts of the case, of course, or how important it is that the defendant failed to get medical care. I assume part of the prosecution’s theory is that the cause of death was not only the act causing the injury, but that timely medical care could have saved the child, and his failure to seek timely care was both reflective of his desire to avoid prosecution, and itself an act of child abuse. If the defendant had significant motive to refuse to call for help, I can’t see how this should be excluded. The prosecution needs to prove who caused the injury, especially in a case where there is an alternate suspect. They need to show that the defendant acted knowingly or recklessly.
His defense certainly will claim something like the child didn’t look too bad, or the defendant had no idea the kid was hurt. Explaining why someone would fail to seek assistance for a child he had injured goes a long way toward completing the story for the jury. Without such explanation the jury is likely to think the defendant acted reasonably because who would fail to seek help for an obviously injured child. The fact the defendant should have called for help but had a really good reason not to is extremely probative.
Again, I don’t know what the pretrial rulings were or whether the prosecution sought to admit this evidence or not, but it struck me as another overreaction on the part of the judiciary of “Oh my God, we can’t let the jury hear this. Prior convictions are absolutey forbidden.” This is the kind of superficial analysis I am glad I don’t have to argue about anymore.
The very next article described a preliminary hearing in a Douglas County murder case. According to the article, the public defender tried to establish the basis for some sort of mental state defense by asking the detective whether her client had served tours of duty in the military in Pakistan, Afghanistan, and Iraq, and that the defendant told the detective he suffered from PTSD. How the heck is this relevant to probable cause? There can be no possible use for this testimony in a preliminary hearing. All this questioning reflects is the public defender’s seeking to get some testimony on the record for use down the road. Mental defenses such as PTSD cannot be used at preliminary hearings. All of this is completely irrelevant.
What is the common denominator here? The defense is the beneficiary of these rulings. Here is where my frustration with the system lies. Despite the public perception that the prosecution holds all the cards, in reality, the bench is so concerned about the potential for wrongful convictions that they are putting up significant barriers to any convictions. Thus, no talk of sex offender status, and preliminary hearing testimony without limits. Never let it be said that I sought convictions based on insufficient evidence or the admission of inadmissible evidence. But the Rules of Evidence are party-neutral. Aside from constitutional limitations which prevent the prosecution from admitting some kinds of evidence, the prosecution is entitled to admit all relevant evidence permitted by the rules. Sometimes, I fear, there is an excess of caution on the part of judges.
Again, I don’t know really what happened in these courtrooms. I could be way off base here. But my speculations as to what happened is based on 30 years of experience as to what actually does happen. Not my problem anymore.

# posted by Miles Madorin : 5:00 PM  0 Comments

Thursday, August 25, 2011

New York City is preparing for a hurricane. Hard to believe. The mayor is actually talking about evacuations. Meg is checking maps to see if her apartment is in an evacuation zone. She is still in Denver and will miss the storm, but the impact will be felt long after she is scheduled to go back next week.

The idea of a hurricane hitting the City is unfathomable to me. I cannot imagine 70 mile an hour winds whistling between the buildings on Broadway or shaking the Empire State Building. Storm surge flooding Battery Park. Subways shut down. Power out. How can you survive in a high rise without electricity? In many buildings the widows don’t open. How many windows might break?

Evacuations? Eight million people live in New York City, over a million and a half in Manhattan. Most of them do not own cars. How can that many people evacuate an island? Where will they go? The storm will have impacts miles inland. Not to mention everyone on Long Island, New Jersey, etc. having to evacuate. (I suppose this means Snooki will have to leave.) The Weather Channel said 60 million people live in the path of this storm.

I will be watching the news intently through the weekend. New York is full of cameras. This should be the most well-documented weather event in history. Will the Statue of Liberty’s island flood? Will winds knock down massive amounts of trees in Central Park? How about the Brooklyn Bridge? It is over 130 years old.

Meg and I were fortunate enough to see New Orleans before Hurricane Katrina. It was a charming, vibrant city. Quaint old buildings hosting hot jazz and big drinks (the most famous ironically known as “The Hurricane”). When we returned after Katrina it was not the same. Could a hurricane have the same kind of impact on New York? Much of lower Manhattan is landfill. Could the sea reclaim that land? Can flooding cause permanent subway damage? There are dozens of bridges, and a tramway to Roosevelt Island. La Guardia Airport is right on the water.

Can you imagine all the crap that will be flying around if the winds are over 70 miles per hour? This will be one for the ages. I keep hoping something will push this away or reduce its force. If not, New York City might never be the same.


# posted by Miles Madorin : 8:16 PM  0 Comments

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