Someone — the name does not matter — used my contact form, providing his opinion of his case, including what he believed to be important facts, and indicated he was looking for someone to give him a “second opinion.” From what I could tell, he wasn’t sure he trusted his current attorney and wanted another attorney to tell him whether his attorney was doing the right thing.
This post isn’t about child custody cases. It’s not about family law at all. Oh, and it’s not about religion, either.
Seventeen-year-old Sammy Adams was running down the sidewalk alongside Floradora Avenue, no doubt a little faster than he should. He was late for work. Again. Today was inventory day and he knew what the boss would do if he didn’t get there on time.
Doris Daudy, a woman of approximately 38 years old, was walking north on Maroa toward her home just north of the Tower District. Her purse was slung over one shoulder, her arms wrapped around grocery bags. She never minded the walk; it was just a few blocks. And although there was an occasional purse-snatching in the area, she’d walked this route for years without problems and felt perfectly safe.
In Judaism, there is a tradition known as “building a fence around the law.” As the page linked in that last sentence indicates, it derives from a verse in the Tanakh — the Hebrew scriptures known to Christians as “the Old Testament” — specifically from Leviticus 18:30.
Leviticus, as you may know, is a favored book of the Republican Party because it tells them not to tolerate homosexuals and to avoid eating shrimp or lobster at fundraisers. According to them one of those rules is absolutely applicable to the modern world.
But I’m not really going to get into politics here: this post is about the negative aspects of building fences and how this can as easily choke the law and divorce it from the intent behind it as it can protect it. Read the rest of this entry »
Concerning the difficulty of researching and writing historical ethnographies, the anthropologist Gananath Obeyesekere, states:
[I]t ought to make us self-conscious about our vulnerability. And the fact that we are not on very solid ground also ought to make us ethically and politically sensitive when we write about other cultures. In historical ethnography, it should alert us to several acute methodological problems when we deal with archival and documentary material written before modern ethnography even got off the ground. … “Any ontology we use to ground the human sciences must ultimately be based on ‘faith’ since any ontology of even minimal significance must derive from a variety of sources, including the scholar’s religious and cultural heritage; and any ontology that we employ can never be final since the very historicity of our being prevents that.” (Gananath Obeyesekere,The Apotheosis of Captain Cook: European Mythmaking in the Pacific (1997) 200.)
Well, what’s that got to do with criminal law?
As the First District Court of the State of California has noted in a case certified for partial publication — the irony of this will soon become apparent —
It is commonly said that ignorance of the law is no excuse. (People v. Meneses (2008) 165 Cal.App.4th 1648, 1661 [82 Cal.Rptr.3d 100].)
It is also commonly said that sausage and legislation are two things you don’t want to see being made.
Although I doubt he had the protection of your sensibilities in mind, the Roman Emperor Caligula developed a unique plan to hide the law from the people who were, nevertheless, held accountable for it:
[G]reat grievances were experienced from the want of sufficient knowledge of the law. At length, on the urgent demands of the Roman people, he published the law, but it was written in a very small hand, and posted up in a corner, so that no one could make a copy of it. (Seutonius, “Gaius Caesar Caligula” from The Lives of the Twelve Caesars, XLI, p. 280.)
California courts have found a better way.
The other day, I was sitting in a courtroom waiting for a case to be called. I was stuck. Having received a call from another attorney, a very good friend who could not make it to the courtroom, I agreed to make a courtesy appearance for her to ask for a continuance.
When I arrived, another case was in progress: an extradition hearing. I’d never observed or been involved in an extradition hearing. The person they were trying to extradite, through his lawyer, was making numerous objections to the evidence being admitted. And, in particular, he was repeatedly objecting that the California Evidence Code — which he believed the court was ignoring — should apply in this extradition hearing.
That’s how it happened that I got myself into a little pickle.
In 1956, with freakishly-ironic prescience, Philip K. Dick wrote:
As they walked along the busy, yellow-lit tiers of offices, Anderton said: “You’re acquainted with the theory of precrime, of course. I presume we can take that for granted.”
“I have the information publicly available,” Witwer replied. “With the aid of your precog mutants, you’ve boldly and successfully abolished the postcrime punitive system of jails and fines. As we all realize, punishment was never much of a deterrent, and could scarcely have afforded comfort to a victim already dead.” (Philip K. Dick, The Minority Report (1956).)
The story continues:
There is a saying in the legal community that “hard cases create bad law.” When I was young, whenever I would explain my behavior as contingency planning based on the possibility that something might happen, my father had a saying of his own. In response to my “if this happened” or “if that happened” reasoning, he would state the following maxim:
If worms carried shotguns, robins wouldn’t eat them.
Not infrequently, as a child engaged in excessive contingency planning, I found this response nothing short of irritating. As a rational adult attorney, I have found myself quoting this maxim with some regularity.
Some of you will wonder why this article is going to start off, in a minute here, by talking about and quoting from comments made at so-called “town hall meetings” regarding Obama’s health care plan. Is this blog “going political” or something?
There are actually two answers to that, the most simplistic of which is “no.” Although, in a way, this blog is unavoidably political: the legal system is, at bottom, the reification of the politics of a given jurisdiction — or to be more honest about it, it is the reification of the politics of those who have the power over the legal system, such that they can reify their political views in a concrete system of law. But I really want to save that discussion for another post. At any rate, it must be admitted that, on the one hand, this blog has always been political.
On the other hand, this blog does focus on the legal system; it is my “professional” blog and I am an attorney. We don’t typically think of discussions of the law as being political discussions, per se. This post will maintain a focus on the legal system; not health care. In that sense, then, this post is not a sign that the blog is “going political.”
The most I will say about Obama’s health care plan is that I’m not a socialist. But, again, that particular issue is for discussion for another post and, with respect to Obama and/or political footballs like health care plans, for another blog.
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