Probable Cause

During a momentary escape from a brief I’m trying to complete before the end of today, I ran across an article on the Pennsylvania Litigation Blog about a sheriff who has become a hero to some because he won’t conduct auctions on foreclosed homes as the law requires.

The article itself was basically just a reprint of one that was supposed to appear in the Wall Street Journal on June 6, 2008.  It was a user comment that struck me more and inspired this post.

I don’t normally write about non-criminal law issues, but since this involved a sheriff picking and choosing what duties to perform, it seemed an acceptable fit here.

The commenter praised the sheriff because even though what the sheriff did was “against the law,” it was the morally right thing to do.  At least, it was the morally right thing to do in that commenter’s opinion.

I disagree.  At least I think I disagree.  (Keep reading!)

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It’s amazing how often history reports itself in things both small and large. 

I recently ran across one of the small things in this passage from Sinclair Lewis’s It Can’t Happen Here:

“Remember our war hysteria, when we called sauerkraut ‘Liberty cabbage’ and somebody actually proposed calling German measles ‘Liberty measles’?”  (Sinclair Lewis, It Can’t Happen Here (2005 ed.) p. 17, originally published in 1935.)

Can I interest you in some “freedom fries”? 

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This post isn’t about child custody cases.  It’s not about family law at all.  Oh, and it’s not about religion, either.

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I thought I’d mentioned the town of Tenaha, Texas before, so this story looked familiar to me.  A link sent by Bunny Chafowitz, however, makes the story look fresh so maybe it’s just my imagination.

Police in Tenaha are accused of committing — quite literally — highway robbery.

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Many years ago, before I was an attorney, I was involved in a then-infamous fight with a quite well-known but also quite obnoxious technical writer.  The details are unimportant, but due to the influence he had over numerous 12-to-14-year-old wannabes (for which I believe he remains immensely proud), he was able to prevent my access to a certain Internet Relay Chat channel for quite some time.

The crux of the reason for my long-term banishment was that I mentioned the impact the supposed adult — I’ll call him “Jack Merridew” — was having on my ability to perform some of my work and that I suggested continued interference by Merridew might provoke a legal complaint.  And that threw everyone into a tizzy.  I had unknowingly committed the ultimate sin: I “confused RL with IRC”; that is, I ignored the unspoken (and idiotic) belief that “real life” and “Internet Relay Chat” are two separate things.

Today, we know better.  Or do we?

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Here we have another example of how the courts have decided that the quaint concept of “justice” is no longer compatible with modern life.  The court in Pace v. United States Automobile Ass’n, 2007 U.S. Dist. LEXIS 49425, 9-10 (D. Colo. 2007) has held that because the courts decided to put themselves in the same class as pornographic spammers and stop using the United States Postal Service with its more than two centuries of service, law firms and their clients will be punished.

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As a former philosophy major turned criminal defense attorney and someone who is very interested in that quaint and ancient custom called “the rule of law,” I’m continually amazed at criminal defense attorneys who don’t think it’s important to know the law. If I had a nickel for every time some attorney came into my office and said, “You don’t need all these books,” or for every attorney who told me I didn’t have to read as many judicial opinions as I do, I could buy myself lunch. Well, at least at Taco Bell. Still, that’s a lot of nickels.

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First, let’s have a “shout out” to Joni Mueller of Pixelita Designs. When I first started thinking about putting up a legal blog, I had already finished the design of the website for my law practice. Since many people liked the look, I didn’t want my blog, Probable Cause, not to fit into the overall design of the site. The problem was, I’d never used WordPress before and didn’t know how to modify any of the templates. I posted a note on the WordPress Forums. In came Joni Mueller to save my day giving me some pointers and sending over a tweak of the theme design I liked so that I could start modifying the colors and other parts to make it fit into the rest of the RHDefense site.

When asked what she’d like me to say about her here, she replied,

We’ve been around since 2003, we believe in standards compliant and accessible web sites and Ivan does great graphic artwork. I try to put my English degree to good use (B.A., Trinity Univ., San Antonio, Texas, 1981) by writing solid copy when asked.

Thanks for the help, Joni!

Anyway, as you can see, Probable Cause is well on the way to getting some new skin. I hope to have the design completed and fully integrate it into the rest of the website, complete with its own button, by the end of the week.

And, lastly, a little explanation about “The Really Low Standard of Review.” That subtitle for the Probable Cause blog was chosen for a few reasons.

For one thing, I lost a Petition for a Writ this past week that so far as I or anyone I know can tell, I should not have lost. The Court denied the Petition without explanation in what we call a “postcard” denial.

A “postcard denial” is summary disposition without a rationale—something akin to “The petitioner’s claims are without merit,” or its more tersely worded cousin, “Denied.” Such denials can mask deficient state adjudication, and their confused treatment by the federal courts reflects both divergent conceptions of comity and different
readings of legislative purpose. – Leo Kovarsky, “AEDPA’s (Imaginary) Purposes” (2007) BePress

Frankly, the inexplicable loss on this Petition, particularly without explanation, makes me wonder about the point of being an attorney. From all appearances, the rule of law is dead.

But I’ll address those issues in another post someday. The point here is that when I thought about what happened, I realized that the Standard of Review (and that was one of the topics of the Petition) has dropped even lower than it ever was before. Today, the Standard of Review appears to be: “Do we, the Justices of the Court of Appeal, like the appellant, or do we want him to lose?” If we want him to lose, that’s all that’s required; no amount of settled law or legal reasoning is going to change the result.

Another reason for the choice of subtitle is as a kind of joke on myself. (I mean, other than the one the Court played.) Of all the standards of review — “beyond a reasonable doubt,” “clear and convincing evidence,” etc. — “probable cause” is fairly low. So far as I know, other than “because the Court said so,” the only standard lower than probable cause is “reasonable suspicion.” And, oftentimes, probable cause and reasonable suspicion appear to be the same thing. At any rate, it doesn’t take much to get to probable cause. So the idea here is that, if you’re reading what I write, you don’t have a very high standard for deciding what you’ll spend your time reading!

My only hope is that you’ll find my writing more useful than the Court did with my last Petition.

(And for any potential clients out there, I don’t often lose — maybe that’s why I took this last loss so hard. Hmm…no. I’m pretty sure it was because the Court was wrong, and I hate losing when I’m right.)