NIFONG'S VERSION OF THE "ORPHAN" DEFENSE

Man kills his mother and father, then asks the court for Mercy because he's an orphan.

Nifong has filed papers that create the civil version of that cheeky defense.

Loosely translated, his first position is that the complaint must be dismissed because he can't possibly have deprived the defendants of due process in that the process isn't over yet and it might be cured by the good efforts of others. To say the same thing another way, even accepting that he has done everything of which he is accused, he didn't screw up the trial of the defendants because the trial hasn't taken place yet.

I have tried to make evident that I have no dog in this fight. I don't know Mike Nifong from page nine. I have no affiliation with Duke University and haven't been in North Carolina in about 20 years. Out of interest, I have tried to explain the pleadings to folks who are interested in the case. I have read the advocacy blogs about this. I read how "arrogant" and "overreaching" Nifong is. That is for others to decide. I have a little expertise in legal ethics and I know how to read pleadings. So now I'm going to express a legal opinion, not a personal one. Interposing this lame, "No harm, no foul" defense is a poorly thought out gambit. It is evidence of the Nifong being heedless about his standalone legal responsibilities. It shows a cavalier view of the solemnity of every stage of the process of a criminal trial. It is an attempt to sidestep the issue of honesty and proper conduct by starting at the back end and looking at the outcome. Rather the "ends justifying the means" it is the "absence of an an end justifying the mean and banal behavior."

And there is much, much more in "The 'fong's" newest pleading. It's a tedious read and I have a day job. I'll get back to you.

DEPARTMENT OF DEFENSE: THE LEAKS JUST KEEP ON COMIN'

Today, kiddies, we have learned in the public media not only that the Bushies want bombing routes and targeting for Iran but what our some of our Generals and Admirals plan to do about it. Some of our flag officers are said to have threatened to resign before they'll fight in Iran.

Now, I happen to agree that military action in Iran is an even bigger bonehead than invading sovereign Iraq, but that's almost beside the point.

Boys and girls, when you sign up to be a military officer, you sign up to follow the orders of the commander in chief. You don't sign up to make yourself look swell by leaking that you disagree and you don't sign up to select or prescreen your wars.

If the Admirals and Generals are just internally stating their disagreement, I have no problem with that. If they are leaking their protests, they are putting their own principles and vanity over their service to country. Nobody ever promised them we'd never have a president with limited intellectual ability surrounded by neocolonialists. The president gives you a military assignment, you explain to him the problems with it, then follow it unless he rescinds it.

Otherwise you can just practice saying "You want fries with that?"

TO OUR IRANIAN FRIENDS: PAY NO ATTENTION TO THE FIGHTER/BOMBERS AND THE RECON TEAMS

There is no truth to the nasty, vile rumors that our President has asked for precision targeting information within your country. Other than maybe a few refineries, major arterials, bridges and the odd centrifuge, we really don't have any more than about 1600 tactical sorties in our playbook. You are a secular democracy, so we don't have to bring you representative government by bombing the snot out of your infrastructure, like we did those weasels in Iraq. Your REAL enemy is the New York Times, which is trying to make you believe that our Defense Department has a plan to blow up your back yard. The fact that Secretary Gates has just googled your chicken house is a mere coincidence. Not to worry.

Those guys in black up in the hills, looking through the bi-knocks? That's tryout camp for the new QND Raider mascot.

You have nothing to fear from the peace-loving United States of America and its peaceful leaders.

Still, when you put your winter things away, you might want to keep the lead-lined Jockeys within easy reach.

STATE COURT JUSTICE: A CASH FLOW RECESS

Remember Brian Nichols, the Atlanta area Purpose-Driven Judge Killer?

Well, he's on trial for one of his acts during the crime spree, except he's not. The State Agency responsible for such things has stopped supporting defense expenses after the trial started. In short, the defense can't afford to continue. So the Judge assigned (this judge is still alive) to the matter has just given the State a "time out" so it can get its mind right about paying for the defense.

I have no idea whether this is a Southern Thing, A Racial Thing, A Bureaucratic Thing or an Auditing Thing, but it's damn sure a big thing!

When a major trial is commenced real lives are put through real stress. Just to declare a "half time" doesn't reduce the strain, both emotional and practical on all concerned, especially the next of kin to the decendents and injured in that caper.

To be clear, I'm not criticizing the Judge. What choice did he have? Still, it's not like this is the first major criminal trial in the history of Georgia. There's gotta be a seamless method to fund necessary expenses to keep the justice system going.

After all, this is not Iraq. Oh, wait, they get plenty of money from us. Never mind.

AN HOUR TO LIVE

Let's imagine you're in a small room with a chair, a table and a telephone. You've just learned you have an hour to live. Who would you call? What would you say?




WHY ARE YOU WAITING?

THE ISOLATED EXECUTIVE, REMOVED FROM REALITY: THE MORE THINGS CHANGE, THE MORE THEY STAY THE SAME

A look back at a not-so-different time, courtesy of our friends from Delancey Place


In today's excerpt, the remote management style of Richard Nixon (1913-1994):

"Nixon fashioned an ingenious device to enhance his own personal authority. Where Lyndon Johnson had worked to the blare of news broadcasts from three televisions mounted on the walls of the Oval Office and to the constant clatter of two wire-service teleprinters behind his desk, Nixon preferred to have his news closely sifted and filtered.

He arranged for a daily summary of stories from the newspapers and the networks to be compiled overnight in the West Wing by trusted political aides for him to check out when he came to work in the morning. Not only were the summaries tailored to his tastes and political needs, but the president could use them as a launchpad for instructions to his aides that often took the form of angry outbursts against enemies, real or imagined, inside and outside the administration. 'FIRE HIM,' he would scrawl when learning of some bureaucratic outrage. These written orders minimized his exposure to subordinates outside the powerful threesome [Haldeman, Ehrlichman, Kissinger]. Somehow, amid the intense and even frenzied interaction of scores of West Wingers, the president of the United States remained a loner, seated in an Oval Office as hushed and solemn as a hermitage. ..."Within the executive branch, Nixon was almost as distant from his own cabinet. He utterly lacked any wish to work with his party in Congress or with his department heads as a team. 'I must build a wall around me,' he had told Haldeman on the very first evening of his presidency. ..."

One of the most poignant moments of Nixon's final departure from the White House was when he apologized to his staff for not having been in better touch with them. 'I just haven't had the time.' he said."

James MacGregor Burns, Running Alone, Basic Books, 2006, pp. 98, 105.

Other than the names of the insiders, is it so different today?

MCHENRY COUNTY: HOLDING PROSECUTORS TO A HIGHER STANDARD

Facts of this one are simple. A young McHenry County prosecutor was arrested a couple of nights ago for a DUI. The State's Attorney, his boss, talked to him about it then fired him.

There are those who will argue the S/A should have waited for due process to run its course--maybe he would have been acquited. There are those who say anyone can make a mistake and that this is too harsh. I think they are are all wrong.

This State's Attorney showed the world that people in his office are not only charged with the responsibility of obeying the law they enforce. They are also charged with the responsibility of being above suspicion regarding the laws they enforce. In the surrounding publicity the S/A took pains to compliment the young man's legal abilities. That will help him land on his feet. That's a nice touch. One can uphold the standards of an office and still be humane.

I'm sorry for the young Assistant State's Attorney but I agree with the S/A's prompt and decisive handling of the situation. The public deserves to know it's chief prosecutor requires more just baseline good citizenship among the staff of lawyers representing the people.

Remember, this Assistant was charged with a serious driving offense, not simply having a drinking problem.

SCOOTER'S MEMORY IS SO BAD, HE FORGOT TO TESTIFY IN HIS OWN DEFENSE!

Near as I can tell (and news coverage is a lousy way to keep up with a trial), Scooter Libby's defense is "I didn't have anything to do with leaking and whatever I said to the Grand Jury was the best recollection my bad memory would allow".

ln the evidence, it sounded like his attorney did an excellent job of proving Scooter didn't leak Plame's CIA connection. Only trouble is, that's not what the Scootmeister was charged with. He was charged with lying to a grand jury about a material matter. He's put other people on to testify to his bad memory. I think the jury will want to hear a denial from him. I think the judge will limit Mr. Wells' closing argument if Scooter doesn't take the stand.

I'm not saying not putting Libby on isn't the best strategy. I'm just saying the "I forgot" defense is harder to make without the jury hearing from the Defendant.

DOGGED PURSUIT OF EXCELLENCE: WESTMINSTER

Dogs are some of the best evidence that God exists. Few other creatures make our lives nicer. I love dog shows and, here in the frozen UMRB, it was great to have the Westminster Kennel Club show on TV. It was like having the Super Bowl last two nights.

What I really loved was that this year the winning dog actually looked like a dog. Sturdy, straightforward Springer. The "best in show" judge was also a class act. It made for great TV. Thanks to USA Channel for carrying it.

I grew up around Dobies, Dalmatians, min. Schnauzers, Pomeranians and full size Collies. My companion dog--bike riding, fishing, even hunting, was a dalmatian. What a buddy he was!

What's your favorite dog, breed or dog story?

Sappy or even maudlin is perfectly acceptable here.

A KINDER, GENTLER RIVER BASIN

Perhaps I've been a little chippy lately with commenters. Don't be bashful. As long as you don't get personal, I'll be glad to have your comments.

FBI: THE DOG ATE MY LAPTOP

Nobody really knows how many laptops the FBI has irretrievably lost but they lose about four a month and admit to 120-160 being gone.

One of them had badge-making software in it. One had a duty roster with names and addresses. Cue "Woikin on mysteries without any clues".

It can be argued that and agent losing one of these things is every bit as dangerous as losing his sidearm. Human error is understandable but there has to be better inventory control systerms in place. Didn't somebody say were "at war!"

We don't leave intelligence or weapons laying around for our enemies to use against us. Sheesh!

THE LINCOLN COMPARISONS JUST KEEP ON COMIN'

Many of the candidates, most notably Obama, seem fond of creating similarities between their candidacy today and Lincoln's initial path to the presidency. Lincoln was universally the third or fourth choice of a recently reorganized party filled with self-doubt. His party's convention was held in his home state but he and his advisors believed he would have a better chance if he didn't attend (thus he didn't). His people at the convention could not put together a majority until a man with the last name of Cameron, recalling Lincoln's kindness and good manners from past interactions, directed his supporters to throw in with Lincoln on the last ballot.

So, if we assume the Lincon comparisons are accurate, we can safely assume anyone who's a rock star now is doomed to failure and the rest of 'em had best not piss your friendly bloghost off.

Am I not destroying my enemies when I make friends of them?

-- Abraham Lincoln, when considering placing Republican Rivals
in his cabinet

SOMETIMES WE BUILD AN ANTI-IMMIGRATION WALL AND SOMETIMES WE RECRUIT LIKE USC

(This from our friends at Delancey Place)

In today's excerpt, having completed the transcontinental railroad in 1869, U.S. businesses and the U.S. government try to recruit individuals and families to settle in the middle of the country to create farms and towns along railway.

For the businessmen in particular, it was not only a way to support the operations of their railroads, but a way to increase the value of the landholdings they had received from the government as part of the inducement to build the railroads:"It had at first been thought that no settlers could survive anywhere on the semiarid, mostly treeless Great Plains that rolled all the way from Montana and the Dakotas south into Texas ... but the Homestead Act of 1862 began to change all that. It promised 160 acres of public land to any person who filed a claim, paid a ten-dollar fee, and agreed to work the property for five years. As it happened, the 1870s and early 1880s were unusually wet years in the West, and the prairies, plowed and planted for the first time, yielded bumper crops.

Promoters made the most of it ... [but] most of these efforts came to nothing. Factory workers [from the East] weren't farmers, and even those who might try it could rarely afford it. Land itself was cheap, but getting to it, getting started, and surviving for the five years required to get title to a homestead cost money that most of them didn't have."Prospects seemed better overseas. The Hebrew Emigrant Aid Society recruited Jewish immigrants from eastern Europe to establish farming communes in Oregon, Colorado, Kansas, and the Dakotas. The First Swedish Agricultural and Galesburg Colonization Companies started the towns of Salemsborg and Lindsborg in Kansas. Small groups of Dutch, French, Bohemian, English, and Irish families scattered across the Plains. Two hundred Scottish families settled together on the Kansas-Nebraska border. By 1875, more than half of Nebraska's 123,000 settlers were members of families headed by foreign immigrants. ..."

Then C.B. Schmidt [of the Santa Fe railroad] was dispatched for the biggest prize of all--the German- Russian Mennonites. They were pacifists who had fled Prussia rather than serve in its army three- quarters of a century earlier. ... There was plenty of competition for these able and prosperous farmers. After Canada offered them immunity from military service and free transportation if they would settle there, Kansas, Nebraska, and Minnesota all also solemnly offered to exempt them from military duty-- although they had no legal authority to do so. Everyone promised them the right to govern themselves in their own communities, to speak German in their own schools, plenty of land at good prices, and easy credit."

Mennonite emissaries were taken to Washington to meet President Grant. ... Secretary of State Hamilton Fish personally assured them the United States would not go to war again for at least fifty years."

Geoffrey C. Ward, The West, Back Bay Books, 1996, pp. 243-7.

AND YOU THOUGHT THE STOOGES WERE DAID!: MOE HOWARD.....

.....Prime Minister of Australia has decided to tell American voters who should and shouldn't be our elected president. So just one word of advice to Moe:

SIT AND SPIN!

THE FIX FOR THE PUBLIC'S INCREASING DISTRUST OF PROSECUTORS, A LA NIFONG

Nifong is just a high profile reminder of where we stand in the post OJ era. The public neither trusts nor respects prosecutorial authority.

The short term fix in a given community is for the DEFENSE LAWYERS, of all people, to express confidence in the integrity of the local prosecutor's office. In most cases, while they have their tiffs, local prosecutors and area defense lawyers believe in one another's integrity. Of course, it's natural for any lay person to wonder why defense attorneys would help a prosecutor. The biggest reason would be that they are standing up for the system, to increase public confidence in it. That is among the basic Canons of Ethics to which we all subscribe. It would take a little cooperation among local defense lawyers and, frankly, might require a little nudge from local judges.

That's a a short-term bandaid.

An additional repair is to change the way we select prosecutors. By electing prosecutors, in most states, on a partisan political ballot, we eliminate critical review of their skills in exchange for partisan fealties. If we were to elect prosecutors in a non-partisan election, where there were no reference to parties, the elected prosecutor would not start out with a built-in 30% or so "enemies" and the candidates would have to propose ideas to distiguish themselves. This is a small thing but the difference would give the public much greater "ownership" of their local prosecutor.

Another interesting possibility has been put forward by Richard Haynes and Gerry Spence, the idea of certain attorneys being asked to a "Prosecutor by the Case". Unlike Special Prosecutors where the assignment would be made only in the event of disqualification of the local DA, PBC's would happen regularly. Let's assume that we have a town of 100,000 people and there are 15 really distinguished defense attorneys there. Every tenth felony would be assigned to one of these PBC's. The assigned PBC would not be assigned another one until the one he or she has completed the current assignment. The assumption is that the PBCs would know what it's like to be treated poorly by prosecutors and would perform to a high ethical and effective standard. The disclosure would be prompt and documented, there would not be any misleading of the other side. That higher standard would become the "community standard". Another side benefit would be that the PBCs, of necessity, would interact with the very police agencies against whom they often appear this would increase trust and collegiality. Some permutation of PBC would probably enhance public trust and infuse some diverse talent into the prosecutorial ranks.

Probably, the longest term fix is a twist on industrial Quality Management, ISO 9xxx and the like. A private organization, such as the National College of District Attorneys, could easily come up with a rigorous on site accreditation program which would include disclosure and integrity issues as well as ticklers and redundancies to make sure required information was shared with both defense and victims. There are literally a million measuring sticks that could be used. The key is the accreditation process would have to be "owned" by someone trustworthy, not any Attorney General or certainly not the Justice Department. I suggest the NCDA because it's only goal is to improve professionalism among prosecutors, they're university-affiliated and they could be counted upon to employ objective criteria. Just as in the Police arena, citizens could take comfort and confidence their prosecutor's office reflected the honesty, diligence and diversity of the community it serves.

But, to go back to the starting point, we have to walk before we can run. Right now, the salvation of ethical prosecutors must lie in the care of a responsible defense bar. That may be ironic, but it is still true.

IF YOU WOULD HAVE TOLD ME LAST JULY...

....The Bears would be playing in February, I'd have taken it!

No boo-hoo from here. Thanks for the fun five month ride, boys.

Now, five weeks till the NCAA Roundball tourney!

NIFONG INTERRUPTUS: POSTPONED TILL NEXT TUESDAY

I apologize but the discussion of how public trust can be restored after something like the Nifong events will now be Tuesday. I'm on Chicago Bear sensory overload and my interest span in anything not involving Nathan Vasher or Charles Tillman is about 90 seconds.

Too early for my gameface but I cain't hep' it.

I wake up in the middle of the night sceaming "Run it between the tackles!"

Bear with me.....nyuck, nyuck.