Views from Eagle Peak » Legal

Limitations of the Criminal Justice System

Jack — Fri, 22 Jul 2011 21:47:20 +0000

Casey Anthony–guilty or not guilty? The jury says not, but millions of avid followers of her trial disagree. Therein lies a hint of the limitations of the criminal justice system. I have no opinion one way or another. I chose not to pay close attention to media coverage, knowing full well the limitations of the media too. As most people know, especially those who watch the plethora of lawyer shows on TV, conviction in a criminal trial requires proof beyond a reasonable doubt. Prosecutors present what evidence they can find, subject to the rules of procedure and judicial discretion. In Anthony’s case, there were a number of unknowns:

How did she die?
When did she die?
Where did she die?

What became apparent, and what Casey Anthony was convicted of, were a series of lies regarding the disappearance and the whereabouts of her daughter. While these suggested, strongly perhaps, her involvement in her daughter’s death, they were not conclusive in proving her guilt. It’s that simple. Did she in fact kill her daughter? Perhaps. But with the evidence available to prosecutors, no one can say for sure. Where the laws of Florida and other states in America fall short, the law of cause effect will always come through. From the Buddhist perspective, whatever (if anything) Casey Anthony had to do with the death of her daughter, will be reflected in her karma. Perhaps that supplies little solace to those who would prefer the judicial system provide immediate justice. Nonetheless, no one can escape the effects of the causes they make, whether those effects are quickly or readily apparent to others.

Johnson & Johnson–Blue Chip, Value or Sell

Jack — Fri, 15 Jul 2011 21:26:35 +0000

Kiplinger’s says, in it’s August 2011 issue, that J&J is one of 6 cash-rich stocks to buy now. They note that J&J shares “have mostly lagged the stock market since the March 2009 bottom.” And also point out that “One of J&J’s problems has been quality-control issues at its McNeil Consumer Healthcare unit that resulted in massive recalls and a reprimand from the Food and Drug Administration. But fund manager Osterweis sees that as a temporary problem.” But are the problems at McNeil a “temporary problem”?

Mylanta liquid and tablets were voluntarily recalled in December for what J&J referred to as a mislabeling problem (failing to note the presence of a small amount of alc0hol in the products). So how long does it take to print new labels? This is market share that may never return. In the meantime, what do they say about the return, if ever, of these products on their corporate website? Nada, zip, not a word.

On the other hand, take a look at the take of Richard Brecker at J&J’s failure at mitigation of problems with Motrin, noteworthy in contrast to how they responded to the great Tylenol scare way back in 1982. It seems that the execs at J&J could be providing the script for an episode of Law & Order or perhaps Leverage.

I am not an investment advisor and this is not a financial blog, but when corporate executives, their PR teams and their legal staff seem most concerned with immediate CYA, (which admittedly the stockholders might prefer in many cases) rather than the long-term reputation in the public interest (which may ultimately aid the corporate bottom line) this does not look a winner to me. Without mentioning my favorite religion, who can doubt the principles of cause and effect or in non-secular parlance, “what goes around comes around.”

John Yoo and Imperial Presidencies

Jack — Sat, 05 Apr 2008 11:03:03 +0000

What bothers me the most about the memos that this bozo (who actually is a law professor at Boalt Hall, UC Berkeley; ugh, boy would I have some serious dialogue in his class) wrote saying essentially that whatever the president decides is OK during a “time of war” is legally OK. Rape, murder, Vlad the Impaler style of message sending–hey, it’s war and he is the president! Where were the proctors when Yoo took his bar exam–off tooting coke? This guy must have learned sophistry at the knee of William Rehnquist. Is this a reverse quota affirmative action–no not his ethnicity, his neocon craziness. Though I haven’t practiced law since getting a JD from Georgetown and passing the bar 30 years ago, I think I could hold my own in a legal debate with him for no other reason than his perverted understanding of the constitutional principles the founding fathers fought for centuries ago. Even lawyers sometimes must use some common sense in interpreting the history of our laws–not distorting them to suit outlandish political or philosophical preferences with grave consequences.

Back to the point. As anyone who watches TV knows (actually some lawyer shows have kernals of truth hidden among the billowing clouds of humor, melodrama, etc.) it is generally possible to find expert witnesses to support most legal theories with some expert opinions as to fact. Unlike eyewitness testimony, CSI-style forensic data or even expert testimony, the legal opinions of lawyers advising the president are just that–opinions. So, do you suppose that a president would have any more difficulty finding a legal patsy to render a desired interpretation of presidential authority than somebody else would have in finding the right expert witness? Let me say this more plainly. If Congress, the U.S. Supreme Court and the American Bar Association in their Code of Professional Responsibility do not address this issue, we in America basically are electing emperors, not presidents. The next step would simply be to suspend the Constitution and take complete charge. Wait until the memo on that shows up!

Zero Tolerance Equals Zero Sense

Jack — Thu, 03 Apr 2008 15:51:13 +0000

So now we are having 1st graders (and perhaps even pre-kindergartners) charged with sexual harassment in school–and even having police called. In a Washington Post article today, Post staff writer Brigid Schulte describes incidents where children as young as four are accused of sexual harassment. This follows on a tradition of imposing zero tolerance policies in schools for other offenses such as bringing weapons, drugs or other contraband to school. In theory, the deterrent value is so strong and the prohibition so stringent, that no one will violate the rules. In theory, zero tolerance avoids having to evaluate conduct and excuses or defenses to charges. A pat on the butt by a six-year old, uninvited and unwelcome, is sexual harassment regardless of intent. A paring knife in a lunch box to cut an apple is a weapons offense; automatic suspension, with no defense. Asthma inhalers must be in the nurse’s office and don’t you dare have a couple Midol, aspirin or other OTC drugs in your locker at school. Does any of this make sense?

Is there a difference between bumping into someone accidentally and stabbing them with a knife? Is there a difference between a paring knife and a machete? Is there a difference between cocaine, marijuana and aspirin? Schools all too often are dangerous places. Adult rapists, ax murderers, drug kingpins, etc., were all kids once–going to one elementary school or another. No doubt many of them were not angels then. But when you treat the inconsequential mistakes or minor infractions of small children with the same process and punishment as heinous offenses, it makes no sense. It teaches kids that rules (and later laws) are arbitrary and impose capricious consequences based on their status as school children. Later, when they grow up, they disrespect more sensible laws or regulations because they assume them to be just as arbitrary. If you are a teacher, a principal or an administrator I have no doubt you have a difficult job but I have to tell you–zero tolerance makes no sense. It’s not justice. It’s not fair. It doesn’t have the intended results.

Vertical Integration

Jack — Wed, 02 Apr 2008 15:05:09 +0000

Whoa, now there’s a term you don’t see much anymore. It refers to a manufacturer or business concentrating production of parts, supplies, etc., into wholly owned subsidiaries rather than non-owned suppliers. Not to bite the hand that might someday feed me, but Amazon (like many other corporations) is jumping now while the laissez faire antitrust policies of the Bush administration are still around. What I mean by that is that Amazon is requiring all Print on Demand (POD) publishers to begin the process of converting their digital files so they can be printed by Amazon’s inhouse entity, Booksurge. For those of you not in the publishing or writing business, many small publishers and authors have books published by a variety of POD companies. These books are not preprinted and shipped around the country to bookstores but instead are printed only when an order comes in. This saves paper, reduces risks of printing more than what will sell and is generally more cost-effective for books that sell less than say, 5,000 copies. An intermediate range of offset printing works financially until you get up in the best seller range. OK, enough of the publishing lesson. The issue here is that the business model that has been in place has worked to pick up the slack enabling authors to develop a following and small publishers to make a living. If the POD industry is hobbled too much by Amazon, it could adversely impact authors and publishers alike.

The Perils of Incomplete Divorce Settlements

Jack — Mon, 31 Mar 2008 15:22:25 +0000

Contemplating a divorce? Too bad; it happens, even if you have tried to make the marriage work. But a word of caution based on my career in consumer protection and legal training: If you own property together, make sure the divorce decree properly handles the division of real estate. I read too many questions in newspapers and magazines from spouses who ask some expert what to do now to get their name off a mortgage for a house they no longer live in. Or perhaps the question is how to get the now far away ex to sign documents authorizing sale of the property. No fault divorce makes dissolution of a marriage a relatively simple legal process compared to proving someone at fault. Key to completing a process of divorce is determining who gets what personal property and what real property (the house, the condo, whatever). While the personal property can get sticky and troublesome, the bigger problem is with the home.

While the laws vary from state to state on how to accomplish the task, the one thing all have in common is that the parties must agree in writing and file with the divorce settlement agreement a description of who is getting what. If one party is going to keep the house, arrangements have to spelled out to deed the house to that spouse alone. If there is a mortgage, it needs to get refinanced to include only the spouse that keeps the house. These details are what you are paying an attorney for. If you think you can and the state allows you to represent yourself in the divorce process, you better make sure you know how to accomplish these details. There is certainly no excuse for the attorney screwing this up. There really is no excuse for a judge or magistrate signing off on a divorce decree without reviewing the property settlement (or existence of it). All too often the process is handled by clerks who also should, but perhaps do not, know better. If all is not done correctly at the time the divorce is finalized, it gets really difficult to fix it later.