f/k/a archives . . . real opinions & real haiku

January 14, 2009

bravo: NSC wants to ban all driving while phoning

Filed under: viewpoint — David Giacalone @ 7:59 pm

.. NSC vs. DWP . .

. . . and NTSB, too, see CNN , WSJ, and NYT (Dec. 14, 2011)

It’s taken too long, but it’s great nonetheless: The National Safety Council has started a campaign to outlaw all use of cellphones while driving, and to make it just as socially unacceptable as drinking and driving. See, “A Problem of the Brain, Not the Hands: Group Urges Phone Ban for Drivers” (New York Times, Jan. 12, 2009)

As the January 12th NSC news release states:

  • “The National Safety Council today is calling on motorists to stop using cell phones and messaging devices while driving, and is urging businesses to enact policies prohibiting it and governors and legislators in all 50 states and the District of Columbia to pass laws banning the behavior.”
  • “ ‘Studies show that driving while talking on a cell phone is extremely dangerous and puts drivers at a four times greater risk of a crash,’ said Janet Froetscher, president and CEO of the NSC.
  • “A study from the Harvard Center for Risk Analysis estimates that cell phone use while driving contributes to 6 percent of crashes, which equates to 636,000 crashes, 330,000 injuries, 12,000 serious injuries and 2,600 deaths each year. The study also put the annual financial toll of cell phone-related crashes at $43 billion.”

A fact sheet, data resources and other information concerning cell phone use while driving are available on the NSC website, at distracteddriving.nsc.org.

NSC argues that DWP (like texting while driving) is just as dangerous as DUI, and is far riskier than talking with a passenger or many other distracting behaviors.  It also makes it clear that hands-free phoning is not safe:

“When you’re on a call, even if both hands are on the wheel, your head is in the call, and not on your driving,” [NSC CEO Janet] Froetscher said. “Unlike the passenger sitting next to you, the person on the other end of the call is oblivious to your driving conditions. The passenger provides another pair of eyes on the road.”


schenectady’s slow learners on thin ice again

Filed under: Haiku or Senryu,Schenectady Synecdoche — David Giacalone @ 12:30 pm

.. photo by Albany Times Union/Skip Dickstein (+ ENLARGE)

Sometimes, it’s just too easy to poke fun at the City of Schenectady and its hard-working civil servants, so we try to stick with more challenging fare.   But, we can’t always resist the temptation to share the news:

For the second time in less than a year, a City Parks Department plow has plunged through the ice of Iroquois Lake, a man-made pond in our beautiful Central Park, which is used for ice skating, fishing (largemouth bass, bluegill), and paddle-boating. The “Lake” is only 7.2 acres in size, with a mean depth of 4.3 feet.  [See “City truck falls through ice in Schenectady,” Daily Gazette, Jan. 14, 2009, with video of the retrieval; “Beware thin ice again,” Albany Times Union, Jan. 14, 2009]  The truck was clearing snow to prepare for ice skating at the pond, which has been delayed this winter because an early layer of snow slowed down ice formation.  According to the Gazette, “No one was injured in the morning accident, but the city’s pickup truck sustained significant damage as it ended up fully submerged [in 14 feet of water] at the bottom of the pond.”

The Gazette has a full account, including the explanation of Commissioner of General Services Carl Olsen, who insists that precautions were taken.  The article explains:

“Workers drilled a grid of 25 test holes to determine the ice thickness. Each hole revealed ice between 8 and 10 inches thick, enough to support the plow truck’s weight, Olsen said.

“The truck was also directed to stay away from the concrete edges, where ice thickness is less predictable. But where the truck went through about 10 to 15 yards from the nearest test hole, the ice proved to be 4 to 5 inches thick, not enough to support a pickup and plow blade.”

Lesson learned (we cautiously hope):

“Olsen said he hopes to get a lighter, older vehicle for the express purpose of plowing the lake. For now, he said they would use a ‘glorified golf cart’ with a plow blade to finish the job. The truck that tanked Tuesday had a book value of about $16,000, Olsen said; insurance may cover repairs.”

Perhaps our blawging-buddy insurance defense expert George Wallace, our favorite RiskProf Martin Grace, and Kevin Sheerin at the NY Civil Service Employment Law weblog, will help f/k/a‘s readers understand some of the issues raised when a civil servant is asked to perform such duties, and has an accident like this under circumstances where an issue of reasonable prudence arises.  Is the City’s insurance claim on thin ice?  Should heads roll?  Are bonuses or pink slips due?

.. In an editorial today titled “Put this rite of Schenectady winter to rest” (Jan. 14, 2009), the editors of the Schenectady Gazette opine that “The genius whose truck fell through the ice at Schenectady’s Central Park yesterday might be forgiven if the exact same thing hadn’t happened a year ago. But it did, of course.”  They want someone with “supreme authority” like the mayor to say “in no uncertain, terms: No more trucks on the ice.”

The editorial points out:

“Yesterday’s incident not only endangered the life of the driver, but the handful of men engaged in the subsequent rescue operation. It took them, the truck and the front-end loader sent to rescue it away from a more important task — cleaning city streets after the weekend snowstorm. If the relatively new truck that went through the ice isn’t a total loss as a result of damage from water and the salvage operation, it will surely be out of commission for weeks. The cost, even after insurance, seems likely to be in the thousands.”

And, suggests: “The city should use snowblowers or perhaps solicit trusties from the county jail for shoveling duty. But, please, no more trucks on the ice!”

In a comment at the Gazette, however, Your Editor pointed out that falling through ice repeatedly is an very old Schenectady Tradition, which we should perhaps be most reluctant to abandon.  As we explained in a post back in 2005:

One of the first examples involved trying to bridge the Mohawk River between the Stockade and Scotia [right at the end of my block of Washington Avenue]. According to “Bridging the Mohawk River” by J. Gara and J. Garver: “Work began in the winter of 1794-95 to build a wooden cable on the ice and lift it onto piers before ice-out. Unfortunately, a thaw opened the river and destroyed the work. If successful, it would have been the first long bridge in the 13 colonies.

Whether it was courage or folly, they tried again a decade later, with similar results: Gara and Garver tell us: “In 1806, construction began on the Burr Bridge again only to have more setbacks due to ice. Again, workers took advantage of the frozen river only to have their pier scaffolding destroyed when the river ice opened up in mid-winter.”

We like tradition around this little old city.  But, the Gazette just might be right: Some rites of winter should indeed be put on ice.

new ice
on the lake
the mayor walks on water

.. by dagosan

coldest day of the year
the lone skater laps
his breath

………………… by George Swede from Almost Unseen

.. orig. haiga. (orig. uncropped photo by AJG) ..

round and round with you
on thin ice

Poem: by dagosan
Photo: by Arthur Giacalone (The Gates, Central Park, NYC, 2004)

p.s. Speaking of cliches, Scott Greenfield has proven again that the Squeaky Wheel Gets the Grease.  Given his and my reputations for curmudgeonly crankiness, Scott complained yesterday that lawyer-author Mark Hermann did not send either of us a copy of his book “The Curmudgeon’s Guide to Practicing Law”, when it was unveiled in 2006, while several other clearly less-deserving blawgers (such as Turkewitz, Schaeffer and Skove) received the book for fawning review at the time.  Rather than using a statute of limitations or laches defense, as a true curmudgeon might have done, Mark wrote to Scott today, offering to send each of us remaindered copies of his book. Mark has apparently forgotten that f/k/a had pooh-poohed, in true curmudgeonly fashion, the hyperbolic promotional campaign for the book — calling it an “instant cult classic” — when it was launched.  A big, warm suitably begrudging thankyou to Mark Hermann who better not be expecting this napped-deprived Boomer to actually read and critique his Guide.

Easily bought-off Greenfield has already welcomed Mark into our Curmudgeon’s Club.  Prof. Yabut and I are, on the other hand, having second-thoughts, having never actually seen any examples of Mark Hermann being curmudgeonly.  Perhaps Mark or our readers will fill us in, should they have suitable examples.

And, getting back to folks skating on thin ice with promotional hyperbole (and you know who I mean, Kevin): I was pleased to see in Scott’s posting about Mark yesterday, that lawyer Hermann — who pens the Drug and Device Law weblog — has joined the club of straight-talking blawgers who have long warned that you can’t expect writing a weblog to bring you paying clients.

January 13, 2009

olfactory justice

Filed under: Haiku or Senryu,lawyer news or ethics — David Giacalone @ 9:39 pm

The Judge Nose Best: Can a judge dismiss an unsworn juror because “her strong body odor was negatively affecting the other jurors”?  Massachusetts Superior Court Judge Nancy Staffier-Holtz thought she could, but defendant Rakeen Young objected, arguing that the juror was of his race.  Noting that she indeed noticed the smell out in the lobby, Judge Staffier-Holtz stated:

“[G]iven the strength of the body odor, I’m satisfied that the other jurors would be put at a distinct disadvantage in their efforts to concentrate.”

When Young contested the point on appeal, the Massachusetts Appeals Court agreed with the trial court judge.  In Commonwealth vs. Rakeem Young (Dkt. 07-P-146, Jan. 9, 2009), the Appeals Court explained that the trial judge had the right to dismiss a juror “in the best interests of justice.”

“We hold that the judge’s dismissal of the juror was not an abuse of her discretion. Here, the jury had not yet been sworn, and therefore, the judge had no duty to hold a hearing or find an extreme hardship. See G. L. c. 234A, § 39. The judge made sufficient findings on the record regarding her concern that the juror’s body odor would affect the ability of the other jurors to concentrate. Accordingly, the defendant’s claim fails.”

As Bob Ambrogi said at Legal Blog Watch yesterday, “The moral of the case: Justice may be blind, but it retains a healthy sense of smell.” (“The Case of the Stinky Juror,” Jan. 12, 2009)

That’s more than enough punditry for me today.  Thanks goodness, Master Issa will help by putting in his two scents:

at the edge
of a stinking well…
plum blossoms

smelling like sake
smelling like piss

on honorable Buddha’s 
honorable nose
an icicle

… by Kobayashi Issa, translated by David G. Lanoue

Had enough of the odious olfactory theme?  Four years ago today, we introduced our readers to the pleasantly aromatic haiku professor-publisher-poet Randy Brooks, with these poems:

hands on the rail . . .
the humpback whale
doesn’t resurface

funeral procession . . .
snowflakes blowing
into the headlights

two lines in the water . . .
not a word between
father and son

grandpa drags his daybed 
to the front porch. . .
mockingbird’s songs

missing in action
she dusts off his guitar
returns it to the shelf

… by Randy Brooks – from World Haiku Review, Vintage Haiku of Randy Brooks

January 11, 2009

can Grimmy be my Service Dog?

Filed under: Haiku or Senryu,q.s. quickies — David Giacalone @ 4:08 pm

Grimmy . . .

holidays over  –
the dog puts a halo
on my snow angel

… by dagosan

.. f/k/a is going to the dogs today, inspired by a few stories in the news (about Colombian coffee, assistance creatures and Pavlovian partisan politics, which are discussed below), plus a haiku or two.

distant thunder
the neighbor’s dog
scratches the door

in the park
my dog fetches
a better stick

… by w.f. owen — from haiku notebook

tripping over the dog
night of winter rain

… by Kobayashi Issa, translated by David G. Lanoue

[full cartoon; Mother Goose & Grimm, Jan. 2, 2009]

Canned Canine? We reported last year that drinking coffee enhances your mood and makes you more sociable.  Apparently, the same cannot be said for growing coffee. Grimmy’s cartoon sidekick Attila brought the wrath of the Colombian coffee cartel down on his master Mike Peters, this week.  Attila made a crack in the Mother Goose & Grimm comic strip of January 2, 2009 [detail above; full cartoon] about the nation’s crime syndicates and finding “a little bit of Juan Valdez,” the fictitious symbol of Colombian coffee growers, in every can. See “Colombian coffee growers sue U.S. cartoonist,” Columbia Reports (Jan. 6, 2009); more coverage at Robot 6 (Jan. 7, 2009); The Associated Press, Jan. 8, 2009; and the SSFeral Children weblog (Jan. 7); via Overlawyered.com (Jan. 9).

Sun-scorched slope– 
an old donkey rubs his rump
against a mud-crusted post

…… by Rebecca Lilly – Shadwell Hills (Birch Press, 2002)

Feeling its national dignity, and that of the 300,000 small, independent coffee growers that it represents, was insulted, The Federation of Colombian Coffee Growers announced a multi-million dollar lawsuit against Mike Peters because his cartoon linked Colombia’s coffee with its crime syndicates.

The Juan Valdez strip, which is not one of Peters’ funniest, was part of a week-long series based on the fact that the inventor of the Pringles potato chip can had his ashes buried in one.

Going a bit over the top, federation director Gabriel Silva said last Tuesday that the guild seeks:

“not just an economic compensation for something that damages the intellectual heritage. We also want moral compensation. A public manifestation.”

Mike Peters is also a well-known editorial cartoonist. It’s a bit surprising (unless you take into account the $20 million request for damages) that he held back his tongue in responding:

“I had no more thought to insult Colombia and Juan Valdez than I did Pringles, Betty Crocker, Col. Sanders, Dr. Pepper and Bartles & Jaymes. . .

“I thought this was a humorous subject and all of my Mother Goose & Grimm cartoons are meant to make people laugh. I truly intended no insult.”

We’re pleased to see that some of Colombia’s most respected cartoonists are scoffing at the law suit and calling it a waste of time. Although the f/k/a Gang will continue to drink Colombian coffee every day, Grimmy and I are symbolically raising our legs, not our mugs, to salute the litigiously-over-caffeinated Cafateros Cartel and their New York lawyers.

the taste
of coffee –
the aftertaste

Park Closed ’til Spring
yellow snow
behind the Rest Rooms

… by dagosan

.. Look Who’s Coming to Dinner: An article in last Sunday’s New York Times Magazine, “Creature Comforts” (January 4, 2009) by Rebecca Skloot, has left me more knowledgeable and open-minded than I was when I started the article.  But, I’m still not sure where I would draw my bottom line about how to define “service animal” for the purposes of the Americans with Disabilities Act (ADA), which says businesses must allow people with disabilities to bring their service animals into all areas of the business where customers are normally allowed to go. Only if a service animal is out of control and presents a direct threat to others, may you ask the customer to remove it from the premises.

For me, the whole topic of Service Animals and Therapy Animals (a/k/a Creatures) was, frankly, colored by my dislike of people who drive with dogs in their laps (see prior post) and other pet-lovers who insist upon bringing their much-loved “family members” everywhere they go — even into places like restaurants and drug stores, where pets are not normally allowed.

The NYT piece taught me one important point: To distinguish between Service Animals and Therapy/Comfort Animals, which are treated differently under the Americans with Disabilities Act (ADA).

  • “Service animals” are animals that are individually trained to perform specific tasks for people with disabilities.
  • “Therapy animals” (also known as “comfort animals”) are used for emotional support, comfort, companionship, or therapeutic benefits, but are not trained to do any particular tasks for an individual. They are not considered to be service animals and business do not have to let customers bring Comfort Animals into their establishments.

It sounds like I won’t be able to bring Grimmy along with me as my Service Animal — the therapeutic effects of his humor on my mood and well-being only place him in the Comfort Animal category.  It’s a good thing that I can sneak Grimmy into a restaurant in a briefcase (and that he’s paper-trained).  Mother Goose can’t claim his fetching the morning paper for her as a covered “task,” either, since she’s not disabled.

Seeing-eye Dogs are our archetypical example of Service Animals.  But, Skoot tells us in her article that:

“a growing number of people believe the world of service animals has gotten out of control: first it was guide dogs for the blind; now it’s monkeys for quadriplegia and agoraphobia, guide miniature horses, a goat for muscular dystrophy, a parrot for psychosis and any number of animals for anxiety, including cats, ferrets, pigs, at least one iguana and a duck. They’re all showing up in stores and in restaurants, which is perfectly legal because the Americans With Disabilities Act (A.D.A.) requires that service animals be allowed wherever their owners want to go.”

Naturally, the line between therapy animals and psychiatric service animals has always been blurry, because it comes down to varying definitions of the words “task” and “work” — and whether something like actively soothing a person qualifies. D.O.T. guidelines for airplanes muddied the waters considerably, however, with new guidelines saying, “Animals that assist persons with disabilities by providing emotional support qualify as service animals.”  People started thinking they could bring their Comfort Animals everywhere, so long as they had documentation that the animal was needed.  As Skloot notes:

  • “Soon, a trend emerged: people with no visible disabilities were bringing what a New York Times article called “a veritable Noah’s Ark of support animals” into businesses, claiming that they were service animals. Business owners and their employees often couldn’t distinguish the genuine from the bogus.”
  • However, “To protect the disabled from intrusive questions about their medical histories, the A.D.A. makes it illegal to ask what disorder an animal helps with. You also can’t ask for proof that a person is disabled or a demonstration of an animal’s ‘tasks’.”  You can only ask whether it is a service animal and what particular task it performs.  You many not ask for documentation.

.. how do you feel about service animals? .. ..

The article focuses on the fact that the U.S. Department of Justice is considering a proposal that would ban all but canine service animals and leave “therapy animals” out of the definition.  At her Culture Dish weblog, Rebecca Skloot follows-up on the magazine article with several helpful and thought-provoking posts.  One gives you DoJ’s Rationale Behind Banning Non-Canine Service Animals (January 7, 2009); another has DoJ’s reasoning for allowing Psychiatric Service Animals but leaving Therapy Animals out of the definition.  Skloot also gives more details about various non-canine service animals, including Panda the miniature horse, Sadie the Parrot and an assistance monkey.

By the time I finished reading Skoot’s materials, I was far less skeptical of Skloot’s assertion that “What’s most striking about Edie and Panda is that after the initial shock of seeing a horse walk into a cafe, or ride in a car, watching them work together makes the idea of guide miniature horses seem utterly logical. Even normal.”  Nonetheless, I’m not sure yet where I would come down on the question of whether only dogs should be considered as Service Animals.  I am, however, still certain that businesses should be able to ostracize mere Comfort Animals.   The definition of Service Animal and the scope of related obligations and rights under the ADA is a topic that is both interesting and important.

cloudy valley
the dog barks
at himself

… by David G. Lanoue author of the novel Haiku Guy

.. Pavlovian Lapdog Politics:  Last August, we wrote of our dislike for the Norwellianly-named Employee Free Choice Act, while scoffing at the claims of its proponents that the Act has bi-partisan support. Our main complaint was that — as Carl Strock wrote in the Daily Gazette — it should have been called the “Election Suppression Act” or the “Strong-Arm Sign-Up Act.” As Strock noted in his post “Employee Free Choice?” EFCA permits “signing a card handed to you by a possibly pushy or intimidating organizer” to count just as much as a secret ballot.

We don’t like it any more today, and in fact find that the economic arguments made by those against EFCA, about hurting small business and their employees, ring true.  See, e.g., “A Labor Dilemma for President Bam,” at Point of Law.   One thing for sure: It is not change, nor new politics, for a Democratic President to be seen as the lapdog of organized labor.  Our only hope is that Barack Obama, should he hold his nose and sign EFCA, can now say to the unions who helped elect him, “That’s the last time I will support a bill on your behalf that does not meet my standards of fairness and intelligent economics.

in the park
my dog fetches
a better stick

… w.f. owen — from Haiku Notebook

all day rain
on the playing field
a stray dog

… by Tom Painting – from A New Resonance 2: Emerging Voices

traffic jam
a plastic dog
keeps on nodding

………Yu Chang – Upstate Dim Sum (2002/I)

the village dog
suddenly disapproves…
the scarecrow

a long day–
the dog and the crow

… by Kobayashi Issa, translated by David G. Lanoue

distant thunder–
the dog’s toenails click
against the linoleum

not much afternoon left–
his dog runs loose
ahead of him

the dog out–
the stars in

. . . . by Gary Hotham – breathmarks (Canon Press, 1999)

January 9, 2009

when a perp pleads “not guilty” it isn’t a lie

Filed under: Haiku or Senryu,lawyer news or ethics — David Giacalone @ 12:54 pm

“To American lawyers, a twenty-year-old document is ‘ancient,’ while a seventeen-year-old person is an ‘infant.’ at one time or another, the law has define ‘dead person’ to include nuns; ‘daughter’ to include son, and ‘cow’ to include horse; it has even declared white to be black.”

…. from “The Party of the First Part: The Curious World of Legalese,” by Adam Freedman (Henry Holt and Co., 2007)

There are a lot of words and terms that lawyers use differently than the rest of humanity.  Besides the ones mentioned in the above quote by Adam Freedman, consider: brief, charge, count, party, practice, person, try and real.  Most non-lawyers take these differences in stride and accept the shift in meaning within the legal system or profession.

Nevertheless, there are large numbers of people (including one or two of my aunts) who believe there’s something wrong when a “perp” (the perpetrator who has in fact done the acts charged in an indictment) pleads “not guilty” at his or her arraignment.  They consider a perp’s plea of Not Guilty to be dishonest — a lie — and therefore immoral or unethical (or, for the less judgmental, an unacceptable waste of public resources).  Faced with the following multiple-choice question at his or her arraignment:

How do you plead to the charge?

  • guilty
  • not guilty
  • no contest

these fans of the inquisitional system of justice (where you are forced to answer every question, and to do so truthfully) insist that a perp should admit guilt and face the appropriate punishment.  If the defendant’s lawyer really believes he has a valid legal defense or justification for the seemingly criminal behavior, some of the Inquisitors might permit the defendant to say “not guilty.”  Otherwise, if he in fact did the deeds that amount to the alleged crime, they want him to plead “Guilty.”  It apparently doesn’t matter that in our accusatory system of justice

  • the defendant is “presumed innocent” until the State proves his guilt beyond a reasonable doubt.
  • the judge has just told the defendant he has three important Constitutional rights: 1) the privilege against self-incrimination; 2) the right to a trial by jury; and 3) the right to confront his accusers;
  • the judge will enter the plea of “not guilty” for him, if he fails to respond with one of the allowed answers; and
  • to everybody officially involved at court (judge, prosecutor, defense attorney) the term “not guilty” has a far broader meaning than “I didn’t do it”

A few criminal lawyers with weblogs have been discussing this topic at their weblogs the past couple of weeks, starting with Jeremey Richey (ECILCrime, “Is It Ethical to Plead Not Guilty?,” Dec. 20, 2009) and Mark Bennett (defending people, “Justice vs. Fairness,” Dec. 22, 2009), and spreading to Ken Lammers (CrimLaw, “morality and immorality of ‘not guilty’,”Jan. 4, 2009) and Scott Greenfield (“The Two Most Loaded Words in a Courtroom,” Simple Justice, Jan. 5, 2009, where there is even a discussion in the Comment section about the merits of possible substitute phrases).

Mark Bennett has a nice, pithy explanation of the cause of the confusion:

In The World, “not guilty” means “didn’t do it.” Not so in the criminal justice system, where it means, “the government hasn’t proven it.”

  • Jeremy Richey insists “It is perfectly ethical [honest] for a person to plead not guilty even if the person believes himself to be guilty as sin,” because he is merely doing what all the players in the judicial system expect him to do — “requiring the government to carry its burden.”  Therefore, “when a person enters a not-guilty plea, he is not being deceptive or dishonest.”
  • Ken Lammers says it might be immoral for the defendant to refuse to take responsibility for his criminal behavior, but “Quite simply, the trial system doesn’t care. It is set up to test the government’s ability to prove guilt – not to judge the defendant’s morality. The stains on the souls of those in the dock are between them and God, not them and the court.”
  • Scott Greenfield opines that “the vast majority [of defendants] fall within a relatively gray area of morality, where they possess a rationale for their actions that may fail to comport with what most people would consider moral choices but which is not so far outside the box as to render them evil.  Wrong, perhaps.  Stupid often.  But not quite evil.”  As for the Not Guilty Plea:

“These words are not a moral statement, but a legal one, encompassing the plethora of issues and challenges inherent in the criminal justice system.  To utter them in response to ‘how do you plea’ in the courtroom is never to be immoral, for morality plays no role in the proceedings.”

Because some blawgers and commentors were mocking those who confuse the everyday definition of “not guilty” with the legal or judicial meaning of those words, I piped in at Simple Justice that lawyers ought to be educating not ridiculing the public on this topic, and indeed has had centuries to do so.   The legal profession should, concisely and using Plain English, explain the Not-Guilty Plea’s meaning and justification in our criminal justice system, especially its relationship to the privilege against self-incrimination.  Then, we should use our public relations savvy and access to all sorts of media to get the word out — maybe even inserted into episodes of Law and Order or CSI — that:

  1. “Not guilty” doesn’t just mean “didn’t do it” in our judicial system. It also means “I’ve got some good defenses,” “I’m presumed innocent,” “you gotta prove it, dudes,” or “I want a trial”
  2. “Not Guilty” is the only answer available to a perp who isn’t willing to give up the important privilege against self-incrimination and the status of being “presumed innocent.” For him or her, it’s the best answer out of the three choices available at the arraignment.  Even if more “accurate” or “truthful” pleas were available, such as “did it, but you have to prove it” or “did it, but it was justified,” they would be a form of self-incrimination.
  3. Allowing a perp to preserve his or her 5th Amendment right against self-incrimination by making a Not-Guilty Plea serves two valuable and interrelated interests: The preservation of an accusatorial system of criminal justice and the preservation of personal privacy from unwarranted governmental intrusion.  Our 4th and 5th Amendment rights would be far less meaningful, if they were available only to the “innocent.”

[For more on the history and justification of the right against self-incrimination, with cites and links to relevant case law, see “Fifth Amendment Rights of Persons: Self-Incrimination,” from the Congressional Research Service Annotated Constitution.]

Let’s hope we don’t have to wait a couple more centuries for the legal profession to come up with informative explanations of the Not Guilty Plea (this Meida Manual by the Boulder County Bar Association doesn’t come close).  Given their expertise, the f/k/a gang thinks the Criminal Law Bar — prosecutors, professors, and public or private defenders — should take the lead.  Considering how many of them blog and tweet their days away, they surely seem to have enough spare time for the project.  We hope that some fragments of this post will be of assistance, and offer this opening, to get the ball rolling:

Why Isn’t the Perp’s “Not Guilty” Plea a Lie? The ability to make a Not-Guilty Plea is central to our criminal justice system, which is accusatory not inquisitional.  That is . . .

. . . . .

Finally, as is our habit here at f/k/a after long pieces of punditry, we offer some short pieces of poetry.

lonely road
a policeman listens
as i recite the alphabet

… by ed markowski

lightning flash–
only the dog’s face
is innocent

night fishing–
the pleading
of a katydid

accusing the pine
of foolishness…
evening mist

in and out
of prison they go…
baby sparrows

… by Kobayashi Issa, translated by David G. Lanoue

January 8, 2009

just another anniversary — as special as ever

Filed under: Uncategorized — David Giacalone @ 11:55 pm

Happy anniversary to Ed and Laurice Markowski. ..

Today (Elvis Presley’s birthday) is the 21st wedding anniversary of my friends Laurice and Ed Markowski, of Auburn Hills, Michigan.  Twenty-one isn’t of those “special” milestone anniversaries.  But, with Ed, it doesn’t have to be.  He’s been regularly telling me for the past few years how lucky he was to find Laurice, and he’s been even more effusive about her as their anniversary approached this past week.

When I introduced Ed and his haiku here at f/k/a in March 2005, I said:

I’m touched by Ed’s ability to present the joys and dignity of
blue-collar life, and the romance found in the mundane
moments of married life.

Here is a bouquet of anniversary and everyday poems of love by Ed Markowski, inspired by Laurice, the love of his life.

we dress
for bed

in love…
we follow a snow covered road
into the fog

anniversary dinner
these long strands
of melted mozzarella

anniversary day
my wife & i
assemble a treadmill

anniversary day
i decide to take
the long way home

in the bedroom window
as we unwind this afternoon
in a holding pattern

carnival breeze…
sharing a bowl
behind the tilt-a-whirl

evening mist
the moth in her hair
light grey

summer love
bite by bite
we share the first ripe plum

hunting season
i read the inscription
inside my wedding band

city snow
we laugh over wedges
of lemon meringue

house of mirrors
i promise my wife
i’ll change

only the waterfall
just as it was…
second honeymoon

… by ed markowski
“anniversary day” –   bear creek haiku (Spring 2002)

bonus: One more from 2009:

silver anniversary
i still take
the quick route home

. . . and one from the summer of 1987:

in love…
gniklaw emoh

January 6, 2009

ending the holiday season with a Beary Merry Christmas

Filed under: Haiga or Haibun,Haiku or Senryu — David Giacalone @ 11:35 am

Yesterday, January 5th, was Twelfth Night and today is the Feast of the Epiphany.  For most folks, they represent the end of the holiday season, when we take down decorations, look for loose-fitting clothes, and get back to our everyday routines. I can’t think of a better way to close the holiday season than by spending a little time with our poet-lawyer friend Roberta Beary (although we’d prefer to do so in person).

Curtis Dunlap had the same idea last night. At his Tobacco Road Poet weblog, he presented a YouTube video of Roberta performing her haibun (that’s a short prose piece with a linked haiku) “The Day After Christmas.”  Rather than repeating the video posting here, we suggest you give yourself a treat and view it at Tobacco Road, and then browse that interesting haiku site.

We’re going to let you savor the text version of Roberta’s “The Day After Christmas,” which was first published in Shamrock Haiku Journal (Issue 6), and can also be found at Haibun Today (October 15, 2008):

The Day After Christmas
(by Roberta Beary)

We are at the mother of all sales, scrunched up against the hats, the no-good, the bad and the downright ugly. Try this one, she orders, and this, and this. There is no room to move, let alone try something on. With stone face, I lift my hands and obey. She is, after all, my big sister. Buy the red one, she points, yelling for all to hear, it makes your nose look less big.

my neighbor’s tree kicked
to the curb

Here’s another pair from the author of the much-acclaimed volume of haiku, The Unworn Necklace:

too tired
to untangle
christmas lights

first snow
at every window
a child’s face

…. by Roberta Beary
“first snow” – Published in Haiku Happens (1998)

.. Orthodox Christmas: Of course, if you celebrate Christmas based on the Eastern or Greek Orthodox Christian calendar, your Christmas celebrations take place on January 7th, and we wish you a most merry Orthodox Christmas. In Schenectady, Xrysanthi, the little Angel pictured here is celebrating her first Christmas season.  She brings a special joy to her parents Kathryn and Michael, and their families and friends.

January 4, 2009

cardinal sins from Charon and Zevon

Filed under: lawyer news or ethics,q.s. quickies — David Giacalone @ 7:27 pm

As regular readers know, the f/k/a Gang considers Thematic Excess to be among the deadliest of sins when it comes to hosting the weekly Blawg Review carnival.  So, we were duly scandalized this evening seeing the content of Blawg Review #193, which appears at Charon QC‘s eponymous weblog.   The fictitious Charon teaches law in the U.K., and has decided to pen Blawg Review #193 in the guise of The Lord of Misrule (whoever that is), presenting his selection of the best recent posting from law-related weblogs in a prolix list formulated around the Seven Deadly Sins.

In the spirit of the New Year, however, we’ve decided not to chastise Charon excessively.  Three things helped us turn to mercy rather than mud-slinging:

  • Buried in the Avaritia-Greed category, we discovered this plum:

“Perhaps this would have been better in the Lust category… but David Giacalone of f/k/a had a sparklingly Savage year in 2008.”

. . . thanks, Charon.

If you’re not familiar with the polka-beat song (which Prof. Yabut can often be heard mangling in the shower), here are a few representative stanzas:

from “Mr. Bad Example
(Warren Zevon & Jorge Calderon)

I’m very well acquainted with the seven deadly sins
I keep a busy schedule trying to fit them in
I’m proud to be a glutton, and I don’t have time for sloth
I’m greedy, and I’m angry, and I don’t care who I cross

Of course I went to law school and took a law degree
And counseled all my clients to plead insanity
Then worked in hair replacement, swindling the bald
Where very few are chosen, and fewer still are called

I’m Mr. Bad Example, intruder in the dirt
I like to have a good time, and I don’t care who gets hurt
I’m Mr. Bad Example, take a look at me
I’ll live to be a hundred and go down in infamy

  • Finally, Charon’s recital of his own vices and peccadillos has convinced us he’s unlikely to be affected in the least by our opinion of his (confessedly award-winning) style.

So, you’re off the hook this time, Charon.  But, please, a little more discretion — and a lot less theme — next year.

no good deeds
but also no sins…
winter seclusion

caged bird–
watching the butterfly
with envy

… by Kobayashi Issa, translated by David G. Lanoue

p.s. Speaking of Greed, Anger, Pride and other such vices, the launching of LexTweet by the folks at LexBlog [see Legal Blog Watch, Jan. 2, 2009] seems to explain why Kevin O’Keefe slammed me so hard when I refused to jump on the Twitter bandwagon, and made a grudging apoplogy that was so meaningless.

let’s not overlook the death of Melissa Batten

Filed under: lawyer news or ethics — David Giacalone @ 2:25 pm

. . . Melissa “Missy” Brooks Batten (1972 – 2008) . . .

It was no surprise to find Harvard Law School graduate Barack Obama [HLS ’91] on the cover of the current issue of the Harvard Law Bulletin, when it arrived last month.  I was surprised, however, while belatedly thumbing through the Bulletin on New Year’s Day, to read about Melissa Batten, a 1997 HLS graduate.  Melissa wasn’t featured because she left her job as a public defender in 2002 to become a successful video game developer for Microsoft. Instead, her story is briefly sketched in the following In Memoriam item:

Melissa C. “Missy” Brooks Batten ’97 of Renton, Wash., died July 29, 2008. She was a developer in Microsoft’s games division in Seattle. Prior to moving to Washington, she was a public defender at the Mecklenburg County Public Defender’s Office in North Carolina, where she handled hundreds of cases and worked in the domestic violence court. On July 21, Batten filed an emergency temporary protection order against her husband. Eight days later, he killed her before killing himself. Donations in Batten’s memory can be made to the Eastside Domestic Violence Program in the Seattle area: www.edvp.com.

That’s right: A former assistant public defender who specialized in domestic violence cases was shot to death by her estranged spouse a week after obtaining an order of protection. I winced when I first read Melissa’s memorial blurb, feeling both the loss and the irony of her violent death.

Then, as a blogger, I thought: “Why haven’t I heard about her death in the blawgisphere?”  Since my failure to get around to any but a tiny number of other weblogs is virtually legendary, I thought the fault might be mine and Melissa might have indeed received coverage on law-related websites.  Searching this morning, however, I found quite a few posts at gamer blogs (see, e.g., here and there), but only one on a “blawg” about Melissa’s death: Skelly’s pointer at Arbitrary and Capricious to a Dagblog post by the anonymous Articleman, who I have since discovered is a Chicago lawyer and Harvard Law graduate.  Articleman‘s post [“The Murder of Melissa Batten: Please Give and Help Prevent Domestic Violence,” Dec. 21, 2008] is a thoughtful essay well worth your time (and extracted below).

The legal community needs to mourn and remember Melissa, and this post is our small effort to that end.  For news reports of her gunshot murder by her husband Joseph Batten, see this Seattle Times article; an emotion-filled SeattlePI column, and a post at Maholo.com with Fast Facts about Melissa.  As Dagblog recounts, “On July 29, he confronted her in the parking lot of the Redmond apartments where she had moved, and took her life with eight shots from a 9 mm handgun, before dispatching himself with one.”  Like Articleman, I think it is especially important to note that:

  • Melissa Batten spent a significant part of her legal career helping the disadvantaged, rather than cashing in on her prestigious law degree.  Seattle PI columnist Robert Jamieson, Jr. wrote:

“Batten left a blue chip private firm in Charlotte to work for the poor and disenfranchised at the defender’s office.  . . .

” ‘A great lawyer, a zealous advocate for justice,’ Kevin Tully, chief public defender for Mecklenburg County, told me. ‘Just an enjoyable person’.”

  • She left law to pursue her creative muse and apparently did the job with enthusiasm and success.
  • Domestic violence doesn’t just happen to the poor and uneducated, it “happens in all kinds of families and relationships. Persons of any class, culture, religion, sexual orientation, marital status, age, and sex can be victims or perpetrators of domestic violence.” (see domesticviolence.org for more information, and statistics on DV, from the ABA Commission on Domestic Violence, which offers training and brings together resources for lawyers who work in the field)

Articleman offered many insights and sentiments in his piece that I’d like to think I might have said, with a bit more time and effort.  But, I’ll borrow some of his well-phrased words:

“You can hear platitudinous journalistic tongue-clucking that the victim was a domestic violence lawyer whose knowledge couldn’t save her, who put her faith in a piece of paper that couldn’t save her.  I’m sure that Missy Batten was a very, very smart woman who knew that she was acutely at risk, and knew that brains and paper weren’t a cure-all.  The most important general wisdom I saw in the many articles about her death was this:  ‘a special shelter may be the only way to keep a woman…safe.  Unfortunately, because of funding issues, there are more people in danger than there are safe places to house them.’

“I wrote recently about the importance of bearing witness to suffering around us, especially in this holiday season, especially if we’re ok.  Barack Obama’s election was personal to me, in part because of my pride in having attended his school, and my agreement with his values.  Missy Batten’s death is likewise meaningful to me:  she tried to do good, and tried to create, two deeply important things.

“There are many, many people in danger of domestic violence, and not enough money, or lawyers, or paper, or jails, on the side of keeping them safe.  . . .  Giving to the EDVP, we can do those two things, things that we talked about so much in Campaign 2008.  I hope you choose to give too.”

The death of any young person is always sad. It seems especially sad when the person is talented, likable, and highly educated.  With young lawyers, an early death tends to be due to an illness (far too often breast cancer) or an auto accident, as opposed to murder.  We certainly don’t often think about domestic violence reaching our profession, but when it does it should motivate all of us to work harder to help prevent domestic violence throughout our society, and to protect its potential and actual victims, through better procedures and education.  I hope Melissa’s death will move more lawyers to assist that cause with their time and money.

. . Click to see Melissa’s video for the newest Banjo-Kazooie game ..

thin winter coat
so little protection
against her boyfriend

. . . . . . by John Stevenson – Quiet Enough (2004)

January 2, 2009

new year already old hat

Filed under: Haiku or Senryu,q.s. quickies — David Giacalone @ 9:48 pm

January 3rd 
only the panhandler
says “happy New Year!”

… by dagosan

It looks like I’m going to have to edit that senryu I wrote a couple years ago.  This afternoon (January 2, 2009), the pretty and popular young check-out girl at our public Library was quite taken aback when I handed her the items I wanted to borrow and said “Happy New Year.”   A few hours into her first work shift of 2009, and the idea of offering good tidings for the new year to someone she sees and chats with a few times a week had already floated into “whatever” oblivion for the young college student and part-time civil servant.  The same thing happened when I passed a neighbor on the sidewalk a block from home around noon.

Sigh. After expending all that effort trying to work up a head of steam of Christmas cheer, people are already sticking pins in my holiday balloon.  Well, I’m going to see what happens tomorrow — and Sunday, too — when I extend New Year’s greetings to folks encountered as I do my quotidian weekend tasks [Don’t you hate that over-used, pretentious word for “everyday”?  Maybe the New York Times could resolve to eschew quotidian in 2009].  Of course, by Monday (January 5th), if I’m still chirping “Happy New Year!” at all the passersby, people will be wondering if I’m going to hit them up for the price of a pint of dago red.

. . .  . While my old HLS classmate Christopher Edley (now dean of UC Berkeley law school, as I fiddle around with this darn weblog) and a few other deans are worrying about finding admissions criteria to help determine success after law school (via Court-o-rama); and USF law dean Jeffrey Brand is seeking lawyers with skill sets such as “empathy, persuasiveness and the willingness to have the courage to do the right thing — which the LSAT does not measure;” I’m going to settle for posting a handful of New Year’s poems by Master Haiku poet Kobayashi Issa, who always seems to find the right balance of bitter and sweet, hope and realism.

a present, a present
a New Year’s present!
her pink cheeks

my tumble-down house
just as it it…
“Happy New Year!”


the cat steals
a New Year’s nap…
sitting room

here and there
hanging in the thicket…
New Year’s ropes

a full round
of New Year’s greetings
at the inn

with a cheer
my hut’s New Year’s decorations
up in smoke

………………… by Issa, translated by David G. Lanoue

afterwords (Jan. 3, 2009): Scott Greenfield expands (as he does so well) on this topic this morning at Simple Justice, in “A New Year’s Shelf Life,” where he laments that the problem of the “contraction of the Happy New Year greeting opportunity” is part of a broader societal insistence on immediacy and brevity.  Despite agreeing with Scott that most topics worth discussion require nuance and explanation, dagosan and the rest of the f/k/a Gang want to point out that demanding immediacy and brevity is just fine when it comes to certain poetic genre.

John Stevenson Archive (Part II)

Filed under: Uncategorized — David Giacalone @ 10:00 am

— below is a list of f/k/a postings featuring two or more haiku or senryu by this Honored Guest poet – – you can also use the Search Box in our Sidebar to find any additional poems by this poet on this website —

Note: Click for Part I, “John Stevenson Archive (2005 – 2008)” where you will find scores of links to f/k/a postings that have multiple poems by John.

– click here for the Guest Poet Archive Index

John Stevenson [info

from sad to silly to . . . ” (Jan. 29, 2009)

re-prize: Modern Haiku (Summer 1996)” (February 8, 2009)

stein and hull and more white lies” (Feb. 9, 2009)

Frogpond brings HSA winners” (Feb. 18, 2009)

officer johnson’s undercover operation” (Feb. 19, 2009)

is Prune Juice you cup of tea?” (Feb. 21, 2009)

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