girl ipsa loquitur: 08/15/2004 - 08/22/2004 Email me!

Saturday, August 21, 2004

Putting It Out There

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Here is an interesting editorial that ends with the plea to "put it out there". I am up to the challenge and request that you read it and pass it on.

My Biggest Fan and I have had this very argument. He rails that liberal judges make law while conservative judges interpret it. The idea that there exists an entire body of judge made law, all both legal and proper, was so counter intuitive to him that we ended the conversation right there.

And, I also love the title of this editorial... "Activist, Schmactivist". (This is something Dork would say, along with Good Little Jury Monkeys and LAKERS ROCK)

So, I, in a blatant failure to think a thought of my own today, offer you this rather clever thinking from a kindred soul.

Thursday, August 19, 2004


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Looks like the prosecution in the Kobe Bryant rape trial has run into a few snags. It seems clear that they know it. After all, they have asked for a continuance in light of some pretty exculpating evidence and the accuser has run into civil court faster than you can call "traveling". The case is falling apart. The question we should ask:

Is dismissal good for Kobe?

On the one hand, what defendant wouldn't take his get out of the possibility of jail free card and run? The potential sentence that Kobe faces is serious. Even just the fine is serious.

I had a little, personal taste of this recently. Someone I know was arrested for battery **. We'll just call him My Baby Brother. Well, Baby Brother did NOT commit battery. Baby Brother was merely in the wrong place at the wrong time with the wrong guy who was willing to lie to police. There was absolutely no evidence to support the charge. However, Baby Brother was not at all reassured by the lack of proof or obvious acquittal conclusion. Baby Brother was more interested in that $2,000. fine or 6 months in jail aspect. I can't blame him. It is a daunting possibility -- that a judge might decide that you need to go to jail and then, buddy, you go to jail.

So, Kobe is probably not going to demand a trial and insist that he be acquitted. VINDICATED. Because there is no sure thing. It is possible that something could happen, something screwy, which will land him in that jail cell. And that is a huge risk to take. I couldn't blame him if he took his dismissal and ran. But I wish he wouldn't.

I would like to see this go to trial. And I would like all the evidence to come out. And in the end, I would like to see justice done. A justice which includes closing the civil court door to a complainant who appears to have cooked up the entire accusation. With a flat dismissal, we may never know who is telling the truth.

This issue may be the first argument Dork and I ever had. Way back, in the very beginning of this case I was pretty staunchly in the victims camp. A defender of rape shield laws and advocate for protecting the "victim". Dork was just a hard core Lakers fan. (His argument has been paraphrased because he is not here to defend himself anyway) I recall asking "What would possess this woman to subject herself to public scorn and ridicule aside from being the victim of a legitimate crime?" I think Dork said "Lakers ROCK."

The moral of that story is we just don't know until we know. Which is why I would like to see Kobe insist on a trial. Insist that the prosecution marshall all their evidence against him and then blow it all away. I would like to see him walk out of the court room, not with the default "Dismissed" but with the hard fought "Acquitted".

Or better yet "Innocent".

**Baby Brother ended up at court but was not on the calendar, got a dismissal from an ADA that took 2 seconds to decide the charge was nonsense.

Tuesday, August 17, 2004

Quis Custodiet Ipsos Custodes?

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I am frankly a little stunned by Lauderdale County officials in Tennessee. Apparently they required a law suit and a federal judge to tell them that you can't throw people in jail for not paying debts. In a recent decision a federal court reminded Tennesee about the U.S. Constitution, with which they were only vaguely familiar before this decision. And the plaintiffs were awarded $1000.00 in damages. That is the interesting part, in my estimation. How did we decide that the blatant violation of a constitutional right is worth a grand?

This was a question that I entertained often in remedies class as well. I'll bet it comes up this year in constitutional law too. What is the remedy for the violation of an intangible right? Say the right to privacy? Or the right not to be thrown in jail because you can't pay court costs? Or, better yet, the right to be free from unreasonable searches and seizures?

From a societal standpoint, this is a tough question. Afterall, when the Tennessee government is required to pay this $1000. damage award, where does the money really come from? The people of Tennessee. On the other hand, if you are the person whos right was violated you place a higher value on it. Since it was YOURS.

In this particular case I am concerned that no one in this system bothered to point out the problem with jailing, and threatening jail time for, debtors. Is it really possible that all of the people who had to be involved in this conduct had no idea that they should not be doing it? Tennessee had outstanding warrants for the arrest of debtors dating back to 1997. That is a number of years where people were subjected to this without complaint. Do members of the general public need to understand their constitutional rights well enough to KNOW when to complain in order to be afforded any protection?

I think the burden of knowing the bounds of the law should fall on the government, here Tennessee, to assess its own practices. The government should be aware of what is, and is not, constitutionally permissible. The proper place for that responsibility lies with the powers that be.

However, in light of the obvious fact that Tennessee either could not or would not shoulder that responsibility, we have to ask ourselves Quis Custodiet Ipsos Custodes? (That posits: Who will guard the guards?) Isn't this the ultimate question of life, the universe and everything? (For those of you who recognise the words of Douglas Adams -- I miss him too)

With any kind of power comes responsibility. The power of a parent over a child, a teacher over a student or a government over the people it governs. If the folks weilding the power are irresponsible, its is the powerless who suffer.

There is no easy answer to this question. Ultimately it falls to the individual people who make up the government to maintain their own integrity and to people who understand the boundaries to hold the line. Sometimes you have to speak up for what is right, even if it's not your problem.

I think that the violation of a constitutional right is INVALUABLE. The mere lack of pecuniary loss, actual quantifiable harm, or damage does not render the violation harmless. Further, society as a whole suffers this harm each time an individual right is violated and it goes unchallenged, uncompensated and unremediated.

I know that this doesn't make it any easier to place a dollar figure on the right and say "It's worth this much exactly." What I hope is that this causes you to value these rights, for yourself and for others. Then the answer to our question, Quis Custodiet Ipsos Custodes, will be you and me.

We will guard the guards.

"To live is so startling it leaves little time for anything else." ~ Emily Dickinson

"Ouch!" ~ Mrs. Palsgraff

Quis Custodiet Ipsos Custodes?

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