Wednesday, August 27, 2014

Undeniable Proof the SAPD is Awful

September 5, 2013: The Court of Appeals hands down State v. Schall.  Shawn Wilkerson of the State Appellate Public Defender (SAPD) was arguing, and won a small but important victory.  When the state claims a defendant committed a felony DUI requiring proof of prior DUIs, and some of those DUIs are from out of state, the state must show at the preliminary hearing that the DUIs from out of state are conforming convictions in terms of the law violated.  DUI differs a bit from state to state, so this is important.  The state, which merely needs to prove there is probable cause to believe the felony was committed, had argued the conviction which often says ".08 DUI" or something is good enough.  The Court of Appeals said no, bring a copy of the law and argue it.  Or lose.

State requested the Supreme Court look at it, and it granted the petition.

On August 20, 2014, the same day that Doug Phelps would argue Wulff to the Court and find that everyone agreed that McNeely likely killed implied consent (bless him)- this happened.  Shawn Wilkerson, fresh from his win less than a year ago, strides to the platform and shows his mastery of the law and the Court of Appeal's opinion.

Oh no, no he doesn't.  Actually, he flounders, freaks out, and shows a total lack of understanding of the law, the system, everything.  He basically concedes that preliminary hearings are useless and he has no idea why we have them.  What's the difference between a felony and a misdemeanor?  He doesn't know.

Question: How did he win in front of the Court of Appeals?  Probably this way.

This oral argument is, easily, the worst I have ever heard.  To say that the SAPD is incompetent barely scratches the surface.  Sarah Thomas needs to step down and the entire organization needs a new outfit of lawyers.  They are shit stains on the fabric of the law.

If you are an attorney in Idaho and you are allowing the SAPD to handle your clients' appeals, you are committing malpractice.  Period.

Tuesday, August 26, 2014

The SRBA: It's finally over!

For folks who aren't from Idaho, the SRBA probably has some significance other than the Snake River Basin Adjudication.

How nice for you.

For Idaho, it has been 30 years of litigation.  It has produced almost a half of our appellate judges.  It was once deemed the "full employment for lawyers act."  It was pretty crazy amazing from a criminal defense lawyer's perspective.  Civil law is weird.  Money is weird.  Dealing with property rights man to man is weird.


The reason I mention it is because I have on a few occasions used SRBA opinions in arguments.  The SRBA is probably one of the better gauges for what Idaho Appellate judges will do in existence.  I'm not saying mention the SRBA every time you argue, but... maybe?

You can read about its demise here.  You can check out the history here.

The Snake River for out-of-staters is the massive river that wraps through southern Idaho (like a snake) emptying eventually into the mighty Columbia, after heading through Hell's Canyon, the deepest canyon in the US.  It is generally found down deep embankments and taunted early settlers on their way to Oregon dying of thirst in the desert.

But then FDR came and spent a bunch of money turning that desert into an agricultural zone using the Snake.  And then people got mad about water rights, and then this thing happened.

I think the most important thing to remember is this is the case where the judiciary put the smack down on the Legislative and Executive, who in turn promoted those who had sided with them while District Judges and placed them on the Supreme Court and Court of Appeals.

Those judges are, in my lowly opinion, dangerous.  But they're still growing and learning, and perhaps the fact that the SRBA was successful, despite the justices occasionally throwing out laws and solutions wholesale as violations of the state Constitution (this happened, read about it), will teach them that its ok to be loyal to our charter.

Maybe.  Anyway, if you're a lawyer in Idaho, you really ought to learn about it.

Friday, August 22, 2014

Hypocrisy and the First Amendment

Every time someone in this country is told they can't say something by anyone, you get a bunch of tinfoil hat folks screaming about the Constitution and the First Amendment.

Let me explain this very slowly to you:

It has literally no effect on you.

I say literally because it is written to have no effect on you, but we talk about rights so much people seem to think the document created something they own and the Supreme Court sometimes agrees.

It's a mess.  Don't get me started.

But even from the illiterate view, the Constitution does not say that no one can make anyone shut up, ever.  Just the government.

So A&E is mad about duck dude hating gays, that's not a First Amendment issue.  Savvy?

Now, sadly, to that tinfoil hat crowd a number of attorneys have joined: Scott Greenfield, his mentee Horowitz, and some other assholes.

Of course, Greenfield and said assholes are smart enough not to actually claim the First Amendment applies. Only Horowitz seems to claim this and makes the bizarre additional claim that the First Amendment ended slavery. But as a group, there's that tinfoil hat tendency to claim all Americans can say whatever they want and no one can stop them because it's a free country.  Hell, they'd welcome a law that made it unlawful to make other people shut up.

Or would they?

Greenfield routinely silences people on his page and then writes long, rambling columns about how sad it makes him that stupid people comment on his work.  Pot calling the kettle, but whatever.

Sometimes, some people really need to shut the fuck up.

So, as Horowitz claims, did the First Amendment win the Civil War and end slavery?

No,the First Amendment A. did not apply to the states and B. did not mean what we now say it means.  Because A. Fourteenth Amendment was not passed till 1868, and B. free market of ideas crap doesn't even show up till like 1953 (though you can date the idea back to Holmes in..1918).

Hell, states constantly banned abolitionist publications.  BECAUSE THEY COULD.

Granted, without a First Amendment, had Congress/President ever agreed to ban abolitionist writings they might have.  I'm not so sure that would have saved slavery though.  Because, you know, the historical reasons slavery ended.  Read a book.

Would it be nice if attorneys learned about things before they babbled like idiots on the internet for their adoring dipshit public?


But I won't tell them to shut up, since frankly, we're criminal defense attorneys, so no one important is listening anyway.