Outside Counsel

The Honorable John T. Elfvin once observed, “guidelines [are] guidelines, not mandates.” If, as I believe the most valuable quality a judge can possess is a good temperament than the measure of that quality is the proper and constructive exercise of judicial discretion. Indeed, I might go so far as to say that the exercise of judicial discretion is one of the most important qualities of a free society. In considering a just and fair sentence the Courts ought to look first to the principles that underlie the jurisprudential justifications for punishment: harm mitigation, retribution, rehabilitation, deterrence, and retribution. The Sentencing Reform Act of 1984, 18 U.S.C. § 3553(a)(2) (A) through (D) uses different nomenclature, and instruct sentencing courts to consider the necessity of the sentence imposed:

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other, correctional treatment in the most effective manner.

Broadly speaking (A) is a reference to the “just deserts” theory of punishment, while (B) through (D) are utilitarian in focus. When enforcing the federal sentencing scheme, courts are required to consider six factors, subsidiary to the traditional sentencing rationales.. (18 U.S.C. § 3553(a)(1)-(7). These are: (a) "the nature and circumstances of the offense and the history and characteristics of the defendant"; (b) "the kinds of sentences available"; (c) "the kinds of sentence and the sentencing range established" by the Sentencing Guidelines; (d) "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct"; (e) "any pertinent policy statement issued by the Sentencing Commission"; and (f) "the need to provide restitution to any victims of the offense." (See, e.g. United States v. Giraldo, 822 F.2d 205, 210 (2d Cir.). These factors are also focused on retribution and utility respectively, and it seems reasonable to say that in balancing these considerations – and leaving aside the actual Guidelines’ recommendations with regard to what constitutes a suitable punishment in any given instance, Congress intended that utilitarian concerns be given greater weight than retribution.

I like everything about the PNC Park experience, except the sandwiches. Naturally I have been open to the experience-- when you live in Buffalo you learn to seek out local eats. Unfortunatly, the Primanti Brothers experience amounts to a bland carb bomb. The good news is that we saw a cool ballgame. Pittsburgh has been underachieving this season, and the evening's starter for the Bucs, Charlie Morton, was 0-6 going into the game (and had put together a string of 14 consecutive starts without a victory-- going back to September 2, 2013). Watching him it wasn't difficult to see why: he had good stuff, but wasn't aggressive. He came away with a 4-3 win, having pitched for 5.2 innings, giving up five hits, one earned run, and 4 walks wile posting 4 strikeouts.

Funeral for a ham.

I honestly do not know how Jeff Simon manages to be so consistently tone deaf. It is a kind of a gift, I suppose. What is truly disturbing about this particular column is that he seems to be saying that he knew all along that the Brose prosecution was fishy. I only wish I had the same oblivious lack of self-awareness.

The Worst Day Of My Life Is Now New York’s Hottest Tourist Attraction. It is amazing to me that a horror that stunned the world so quickly transformed into a political tool. The mental image of the man who had just stolen an election on the smoldering charnel pit with his bullhorn makes me want to puke, and that was just the beginning.Some sort of memorial had to be erected, I suppose. They couldn't have just left up the chain link fence and the photographs of the missing. Even so, what they have managed to come up with as a monument to a world historical obscenity is an astonishing obscenity in its own right. A gift shop? Paid admission to a mass grave?

"There is no way out until the end, and it’s all so numbing that maybe this is the whole point: The exhibition starts with one shining, unfathomably terrible morning and winds up as all of our lives, as banal and constant as laundry, bottomless. I can feel the sweat that went into making this not seem tacky, of wanting to show respect, but also wanting to show every last bit of carnage and visceral whomp to justify the $24 price of admission — vulgarity with the noblest intentions."

One of the first things you learn about when you go to law school is The Blue Book: A Uniform System of Citation. It is compiled by the Harvard Law Review Association, the Columbia Law Review, the University of Pennsylvania Law Review, and the Yale Law Journal, and is what it says it is: a form book for proper legal citation. "Bluebook style" is fancy-pants slang for "the way law reviews cite things". The Supreme Court doesn't use it-- it has it's own set of citation forms-- but a lot of judges do, and insisting on Bluebook format is the way lawyers with a stick up their asses establish that they have sticks up their asses  were on the magazine when they were in law school. The University of Chicago uses the simplified "Maroonbook", which Outside Counsel prefers. Proceeds from the sale of Bluebooks-- which pretty much every incoming law student buys-- go to the law reviews of Harvard, Columbia, Penn and Yale, so right there is a reason to hate it. Recently an attempt was made to add Bluebook form to an open source software system-- and shot down, kinda. It's an interesting story. There's a lot more of this sort of thing that goes on than you might think. A lot of building codes, and even municipal codes are "proprietary". We recently had a matter that involved a question of what the standard was for the placement of electrical wiring over a driveway. The Code for the municipality referenced a national standard, but finding an official citation to the standard, which was necessary to quote it to the court, required paying a fee to the publisher. In other words, if you want to know what the law is, you gotta buy the book. That is messed up.

The Anti-Kidnapping Band is pretty much irrisistable: a $20 buck pouch for your watchband that holds a ceramic razor blade, a polymer handcuff key, and a 4' Kevlar friction saw. It'll clear airport security-- and that means you can probably get into federal court with it too!

Whether we needed it or not we now have Bob Dylan singing "Full Moon and Empty Arms". What's

it like? Well, you could go listen to it, and I expect you will, but to me it is oddly pretty, like someone's grandfather, backed by a really sharp Country & Western band. There are some notes he strains for, but on the whole it is a sincere take on a song that he must have heard thousands of times growing up, based, of course, on a theme by "Rocky" Rachmaninoff. This is roots music for Dylan-- before Buddy Holly, before Harry Smith's Anthology of American Folk Music-- this is what he was listening to. Do I need to hear a whole album of Bob Dylan singing standards? Uh, I bought Another Self Portrait the day it came out. Of course I need to hear this.

I think it is long past time for us to stop referring to things that are not wars as wars. Think about it: leaving aside the fact that our recent history with things that are actual wars has been pretty dismal, our history with things that are not wars that we call wars has been even worse. War on Drugs? Oh, please. War on Poverty? Who you gonna believe, me or Mathew 26:11? And of course, the War on Terrorism. I heard some nitwit on the radio talking about winning the War on Terrorism this morning and people in the car behind me heard me yelling. There is no such thing as a War on Terrorism. Terrorism is a methodology. When we talk about terrorism what  we are talking about is a tactic used by (non-white*) people to disrupt governmental order. It is possible to institute security measures that diminish the possibility of terrorist disruption-- and those measures operate on a spectrum that ends in totalitarianism, without ever completely eliminating the possibility of a person or group employing terrorist methods.

So lets just stop talking about a War on Terror as though it means something. It doesn't, and using the phrase serves primarily to cloud meaningful discussion.

* Let me know the next time some white guy gets called a terrorist. I believe white guys who kill a lot of people are properly referred to as "quiet guys who kept to themselves" or "Second Amendment advocates".

Banned album art.

School Board results below. Patti Pierce and Larry Quinn were the hand-picked candidates of Carl Paladino, and were both endorsed by the Buffalo News. It seems odd to me that the most unpopular General Manger the Sabres have had in my memory proved to be the favorite of about half the voters. It also appears that what happened here was largely race driven. The African-American and Hispanic candidates seem to have split their support. That is less surprising. I'd like to see the district numbers.

The big story here is the turnout. 50,301 live votes, and about 2,300 absentee. As reported yesterday, Outside Counsel was 102 at our polling place; by 4:30 675 people had voted there.

Buffalo School Board (at-large)
Lawrence Quinn	8,351	16.6%
Patricia Bowers Pierce	7,196	14.3%
Barbara Nevergold	6,809	13.5%
Bernard Tolbert	5,595	11.1%
John Licata	4,686	9.3%
Samuel Davis	3,968	7.9%
Sergio Rodriguez	3,195	6.3%
Gizelle Stokes	2,766	5.5%
Ralph Hernandez	2,578	5.1%
Wendy Mistretta	2,211	4.4%
Stephon Wright	1,137	2.3%
Adrian Fitzgerald Harris	1,079	2.1%
Stephen Buccilli	843	1.7%
96 of 98 Precincts Reporting
Source: Buffalo News

Forty maps that help explain the history of the Middle East.

I was #102 at my polling place this morning at 9:00ish. Pretty good turnout for a school board election. It'll be interesting to see how it shakes out: my vote resembled the Buffalo News' endorsements not at all. Carl Paladino has put a lot of money into this election-- we may get a picture of how wide (or deep) his support is. Me personally? (1) I think charter schools are a union-busting tactic that have next to no relevance to actual educational outcomes. Charters that are full of poor kids perform/fail at just about the same rate as do traditional public schools. To the extent that there is any variation whatsoever, I suspect it can be accounted for by the greater involvement of parents who put their kids in a charter. That investment would carry over, so I do not see that the charter model can be said to improve outcomes. (2) Unions are good. They promote and protect academic freedom, and prevent abuse. (3) We cycle through school superintendents at a furious rate in Buffalo. It seems to me that superintendents are probably not the real problem; that some stability might help the situation; and that a fair amount of the discontent that exists with regard to the present superintendent is a combination of frustration with a poverty-infected system and plain old racism. I doubt that a clone of Jean-Jacques Rousseau, John Dewey and Horace Mann could do much in a system where eighty-six percent of the students qualify for free or reduced rate meals. (4) Common Core is a red herring. The Buffalo School Board has nothing whatsoever do do with this issue.

Sixty years ago today Roger Bannister broke the four minute barrier.

To Niagara Town Court last night, representing a victim. It's a good idea to do that if you can-- it shows the prosecutor that your client is serious, and prevents them from treating the matter as routine. When I do it-- which is not all that often-- I make a point of looking sharp. The bow tie helps, as does a fresh shine on the shoe leather. You don't want to overdo it-- go with a plain grey flannel if possible. The prosecutor isn't going to be glad to see you, and the defense lawyer is going to be even more unhappy. You don't belong on their planet, and both of them resent your injecting themselves into a process that they both believe is exclusively their province. There is a thin electrical sensation in the back of their nervous systems that also resents the fact that if the victim's civil action hits, your fee will be more than they are making for that evening, but that goes unsaid.

Because I do not regularly appear in courts where the chief business is grinding out criminal dispositions I have time to think about the process. I always notice that the people who are in there are a lot more used to the place than I am. It's a precarious world, and most people don't realize that they are maybe just one fuck-up away from never being able to get away from it. Town Court is a court of limited jurisdiction-- it is for misdemeanors and violations, not felonies. One year, or a thousand bucks are the top penalties. A thousand bucks might as well be a million though. These are not people with credit cards-- these are people who scrape up the bread for their DWI fines and pay in cash or with two or three money orders. They don't have a regular relationship with a bank is what I'm saying. They don't really have a regular relationship with many institutions, actually, except maybe (probably) the county. If they had a relationship with the State of New York they'd be in County Court, not siting in these orange fiberglass seats in this linoleum floored, cinder block room. A lot of them are young-- like, probably they should be in high school young, and the reason they aren't is in their lap, the toddler who was their ticket out of school. That kid has no shot, of course. The Town of Niagara is pretty diverse racially, and the room is about evenly divided between black and white. The races mix comfortably: they all know each other. For some reason there weren't many Native Americans there last night, but there were some. No need for a Spanish interpreter.

A woman in a Hamilton Tiger Cats sweatshirt approaches a lawyer. "No, I can't take your case," he says. She asks why. "Because it's the summer and I don't want to spend my Thursday nights here. I'm not taking any cases."

A different lawyer is at the bench talking to the judge. "They're telling me they can't find the PSI," he says. "What's a PSI?" my client whispers to me. "Pounds per Square Inch," I whisper back, and the guy in front of me laughs. It's his Pre-Sentence Investigation report that's missing, and that is probably good news-- when they find it he'll be going back in for a while, but tonight they'll just mark the case over for another week or two, and he'll stay out.

The shoes tell a lot of the story. That pair of Air Jordans don't look like courtroom attire, and neither does that Harley tee shirt, or those camo pants, but for as much time as these people spend in court, they don't really have courtroom clothes. They don't have church clothes. They have the clothes they own, and that's what they come to court in. 

These people are the lucky ones. The unlucky ones are wearing chains and jumpsuits and are sitting over against the wall. One fuck up. One bad break. One time when they each pushed their luck too far, and now here they are, in this fluorescent lit room where they will keep returning for most of the rest of their lives, for their own case, or for their kid's case, or for their grandchild's case. It doesn't seem strange to them. Chances are their mother brought them the first time, to pay a fine for their father, or to pay a fine for themselves, and maybe -- probably-- when they walked out they were holding their grandmother's hand, and looking over their shoulder. Shoplifting a six pack. Going for a joyride. Getting into a scrap in a parking lot. It doesn't take much. Sometimes it's just being in the wrong place at the wrong time. Lots of times the Town of Niagara is the wrong place to be, just like the billion shitty little towns just like it.