Thursday, May 14, 2009

The Forever War?

I read today that the Obama Administration is attempting to do away with the phrase "the war on drugs." Let's hope it's not simply another broken promise and believe our eyes and not our ears. Still, it's refreshing to hear that, at least in spirit, the government may stop its war against its own people, many of whom are simply drug users, or addicts, who, like the client I represent who recently lost his case in the Eighth Circuit, finally get sober during long prison terms for conspiracy to distribute. Not the best way to spend taxpayer dollars, but a fitting way to fight a war where the truth is often the first casualty.

Maybe I'm just down on the term "war" as I've been listening to an excellent audiobook about it, Dexter Filkins' excellent The Forever War tells stories about what he saw as a war correspondent during the wars in Iraq and Afghanistan.

I highly recommend the book as brings the war "home," or as close as a book can bring it, without much commentary or editorializing, but simply with stories of what the author saw while on the ground, embedded with the men fighting it who seemed to be mostly poor kids in their teens or early 20's from a place Filkins had never heard of.

I've been riveted by the stories all week, just listening to the audiobook, sometimes wanting to drive around the block again to hear the end of a story. "Driveway moments" as NPR calls them, are frequent. He describes the 22-year old who sat beside him on the transport, who made a certain comment that stuck with the author and then was killed four days later, for example, or the kid who stuck his arm out and insisted on walking in front of Filkins up the stairs and whose head was then split open by a bullet.

Josh Karton says that "the enemy of all art is generality" and Filkins creates great art, or at least good and memorable stories, by avoiding it with simple, concrete stories that show rather than tell the action and avoid judgment or interpretation of it.

I can't recommend this book enough. I once wrote about a sign that appeared in Iraq stating "America isn't at war, it's at the mall." This book tells the stories of the kids, and others, who went to war instead and who are, in many cases, still there. The stories are good and a lot of good comes from simply hearing these stories that have gone untold amidst our trips to the mall.

It's a good read, or listen, especially on Memorial Day weekend.

Tuesday, May 12, 2009

"It's Our Courtroom"

I’m in court this morning to waive a preliminary hearing and the deputies are telling a woman in the front row, who’s sitting with her child, that she has to leave. The judge hasn’t entered yet; the deputies are simply preparing for this case, in which a 19-year old Elkhorn, NE kid is charged with killing his father after the father had an affair with the son’s girlfriend.

The details of the alleged crime, which have run in the paper for days, are going to be ugly and I hear the deputies talking about the woman not being able to stay in court with her kids. So I say, not to them but to another attorney, “They can’t make her leave, not just for bringing her kids into court.” The deputy standing closest to me turn to me and says, “Yes we can, it’s our courtroom.” I have to do a two-minute prelim waiver, have to then go to the jail to meet with both a new and a new client and then have to rush back to the office to write a brief, so I don’t have the time nor the interest in debating with this guy who thinks the courtroom belongs to him and his friends who carry guns.

But think about the implications of this scenario. The deputies decide, without asking the judge, that kids should have to leave “their courtroom” since the testimony might not be appropriate. They don’t bother to check the law, the court rules or even check with the judge; they just decide she can’t stay.

I didn’t intervene, like I probably should have, and the woman doesn’t seem particulary bothered. I decide that I have “no dog in that fight” and let it go. But the implications, and the raw display of power, bug me. So I check the Court Rule, § 6-201, which says,

as a general principle it is the view of the judiciary of the State of Nebraska that proceedings should be open to the public at all times and only closed, in whole or in part, where evidence presented to the court establishes that by permitting all or part of the proceeding to remain open to the public, a party's right to a fair trial will be substantially and adversely affected and there are no other reasonable alternatives available to protect against such substantial and adverse effect.

I’ll find the judge tomorrow and tell her the story, so she knows that the courtroom she presides over was partially “cleaned out” before she came in, and that the deputies didn’t feel the need to consult with her before they decided who could stay or go. I won’t mention names, or get anyone in trouble, but want to make sure the guys with guns know they don’t get to control the courtroom, or disregard its rules without a consequence.

Monday, May 11, 2009

The Smell Test

I read a police report the other day in which a search warrant was procured after an investigator allegedly “smelled” raw marijuana when his allergies flared up after he entered a house. Another time, in misdemeanor DUI case, the judge denied the motion to suppress I filed after a cop smelled marijuana while sitting at a stop light and my client cruised through the green light with the window rolled down. When he denied the motion, after I argued the impossibility of such “probable cause,” he commented that I must not have been around pot very much. (How was I supposed to answer that question? Maybe he was just mad at me for asking the cop if he drove, Ace Ventura-style, with his head out the window?)

But now the Eighth Circuit has opened the door (window?) to even better smelling techniques on the part of officers by approving a warrantless search of a home after officers (1) received an anonymous tip that meth was being manufactured in the home and (2) smelled an odor consistent with meth manufacturing:

In this case, the officers had probable cause to believe methamphetamine was being manufactured in Clarke’s home. The officers received an anonymous tip that methamphetamine manufacturing was occurring. Upon arrival, Officer Groat smelled an odor which, based on his training and extensive experience, he recognized as consistent with methamphetamine manufacturing . . . Exigent circumstances also existed. Because the officers had probable cause to believe methamphetamine was being produced in Clarke’s home, the officers reasonably concluded there was a potential threat to the safety of the officers, anybody inside the home, and anyone in the surrounding area.

Who needs a drug dog when the officer’s own allergies “alert” in the presence of pot? Who needs a warrant to search a home when you can simply claim to have smelled "chemicals" consistent with meth production?

Who needs the Fourth Amendment?