davewalker.org Blog

Wasn’t there something, in that law thingy that they signed a long time ago, about being able to speak freely and having a free press or something like that?

Apparently is doesn’t apply in McCalester.

Apparently in McCalester, if you say something about an elected official that he doesn’t like, the cops show up at your door.

I know there is some sort of thing that is supposed to prevent that kind of thing. I think we talked about it in law school . . .

CONSTITUTION! That was the word I was searching for . . . .

In a stunning and unconscionable blow to the 1st Amendment, a federal court in California has granted an injunction against the website Wikileaks.

The whole purpose of Wikileaks is to expose government and corporate corruption through posting of documents leaked by anonymous contributors around the world. You would think that the United States Government, founded upon the very idea of free speech and freedom of the press, would be 100% behind such a venture.

Well, given recent history, maybe you wouldn’t think that.

Either way, it is an incredibly wrongheaded decision on its face. Not only did the court order the site shut down, but in addition Dynadot, the ISP for Wikileaks, has been ordered to turn over information that could lead to the discovery of the anonymous contributors. How very Orwellian of them.

The good news in all this, of course, is that the very nature of the Internet makes ham-fisted decisions somewhat moot. All one need do is go to one of the Mirror Sites in Belgium or India, and wait for the authorities to do something about it.

As to the fate of the brave contributors to Wikileak who may be ratted out by the stupidity of the American Justice system, one can only hope they will be able to escape the wrath of their governments, where ever they may be.

UPDATE: As I was reading the lawsuit, I saw this section:

 . . . [defendants are] ORDERED to immediately give notice of this Order to all of theWikileaks Defendants’ DNS host service providers, ISP’s, domain registrars,website site developers, website operators, website host service providers, andadministrative and technical domain contacts, and anyone else responsible or with access to modify the website, and that they are to cease and desist from any currentand any further use, display, posting, publication, distribution, linking to and/orother dissemination of copies of and/or images of the JB Property . . .

Of course, this being a WIKI, by definition, anyone who goes to the site can modify it. So, if you’re in the mood to defy the feds today, feel free to go to the mirror sites and mess with some of the information at dispute in this case. In the words of Homer Simpson, you can thus “STICK IT TO THE MAN, BOY!”

Why don’t we solve the Death Penalty question by requiring the standard of proof in all capital cases to be “Beyond a Shadow of a Doubt”?

This would, as I see it, have the following advantages:

• It would deter prosecutors from seeking the death penalty in marginal cases
• It would make jurors more likely to mete out the death penalty in cases where it was truly deserved
• It would drastically cut down on the number of false guilty verdicts.

I had thought, at first, that the new standard of proof should be a ‘winner take all’ proposition. That is, the State either wins with the higher standard, or the Defendant goes free. But as I pondered the unintended consequences of such a rule, it occurred to me that it wouldn’t be long before Prosecutors began saying things like “If you don’t vote to convict, this man will go free . . . is that what you want to see happen?”.

Of course, then we’d be right back to where we started from, with juries being pressured in to making rash decisions, and more Defendants getting punished for crimes they didn’t commit.

So, I think it would be sufficient if, for instance, in a first-degree murder case, the jury had these options:

1. Guilty beyond a shadow of a doubt with the penalty of death
2. Guilty beyond a reasonable doubt for a term in prison up to life with possibility of parole, or,
3. Guilty beyond a reasonable doubt of a lesser charge (2nd degree murder, manslaughter, etc.)

What am I missing? What would be the drawbacks in such a system?

I was discussing with a colleague today the proposition that there are too many good young lawyers and not enough good young teachers. The implication was that maybe some of the bright young people who become lawyers should instead become teachers.

I’d like to agree with that thought, but I can’t. Yet.

I taught in the public schools of Oklahoma for 14 years, and I counsel my former students not to go in to education as a career. I certainly couldn’t counsel them to choose a masters in education over a law degree.

I should be able to, but I can’t. Not in good conscience.

The reason isn’t that teaching isn’t an admirable, honorable profession. Of course it is. It’s probably the most admirable and honorable of all professions. But the way education is run in this country, at this point in our history, teachers are not only undervalued, they’re treated as little more than unskilled wage-slaves.

Ask many a good teacher what they hate most about the profession, and they’ll say “I don’t get to do much teaching anymore”. Most of my days were spent in some combination of crowd control, pointless meetings, and standardized test preparation. Very little actual teaching. In fact, for the two years I coached football, I did more pure teaching on the practice field than I ever did in the classroom.

It’s time to rethink public education from the ground up. We’re stuck with the system we’ve inherited, not the one we would choose. What needs to be done is a total reboot of the system. Let’s sit down and ask ourselves “If we could design an educational system from step one, what would it look like?” Then, we need to build that system. It may not be the same for everyone. In fact I would hope it would end up as a system of vastly different types of schools. Children are not interchangeable, yet every town in every state has schools that are essentially identical, as if there were really one model of education that is appropriate for all. That’s nonsense. If we could do that, then I’d beg my former students, and anyone else who would listen, to go into education.

And, the same thing goes for the way we train teachers. Schools of education are anything but. I’m not completely sure we need education degrees for teachers. Rather, I think we need teachers with good educations, in whatever discipline. If that was the requirement, then we’d have as many qualified teachers than we could ever need or want. It matters very little whether an educated person has ever taken a course in Audio/Visuals or Unit Preparation.

Think of the smartest person you know. If a university wanted them to teach, they would have but to hire them. But if a local high school wanted the same thing . . . no luck. Unless the smartest person you know just happens to have a teaching degree and a license from the state. There’s no sense in that.

Next post, I’ll talk about the one thing I think we could do with the current system that would help immeasurably to salvage many a school. It’s probably not what you’re guessing, either.

Don’t piss off the judge.

I actually have first hand knowledge of this case, as I was a juror in the original trial, not the second trial referred to in Mr. Autry’s contempt case.

The defendant, Ben Crider, murdered his step-daughter, Crystal Dittmeyer, and disposed of the body, which to this day has never been found. The guilty verdict decided by myself and the other jurors was subsequently overturned in a horrible decision by the Court of Criminal Appeals, citing the use of novel scientific evidence by the prosecution. For some reason the Court’s decision was deemed “not for publication”, but here it is anyway, thanks to the good folks at the Oklahoma Indigent Defense System.

The scientific evidence, used to identify a bite mark on Crider’s arm, may have been novel, but it certainly wasn’t reversible error. Everyone on the jury, indeed, everyone in the courtroom knew it was bite mark, and everyone knew who made it. From a juror’s view it was harmless error, if it really was error at all.

So, after Mr. Autry torpedoed Crider’s second trial, the then-District Attorney, Wes Lane, decided not to pursue a new trial, citing inconsistency in one of his key witness’s testimony. Mr. Lane got Crider to plead guilty to 2nd degree manslaughter, and he was set free after being sentenced to time served.

You might think that Mr. Lane would have insisted that Crider tell authorities where Crystal’s body is, so the poor girl could have a decent Christian burial after all these years of being stuffed in a hole somewhere. Mr. Lane didn’t.

So, to sum up: Crystal’s body is still out there somewhere; Ben Crider is free as a bird, somewhere in Kentucky; and David Autry owes the the State of Oklahoma 500 bucks.

It’s a funny old system of justice, ain’t it?

David Autry, by the way, is an absolutely brilliant defense attorney. If I was accused of murder, he’s the guy I would want sitting at the table with me at trial. Ben Crider was guilty as hell, but David Autry, eventually, got him off the hook.

Crystal Dittmeyer was unavailable for comment.

Add me to the list of people who have no intention of obeying Oklahoma’s new draconian, racist immigration law. What, you think I’m going to start asking people for their papers? Like this was North Korea, or China, or Cuba?

Thank you, but no.

I may actually go out and FIND illegal immigrants, and give them a ride wherever they want to go, or let them stay at the house for a few months, just to stick it to the man.

Further, I’m going to write my state representative and urge him to introduce a bill, making it legal for any American citizen of Hispanic heritage, if asked for proof of citizenship, to kick the person who asks square in the nuts.

I’m going to call it the “Citizenship Verification Act of 2007″.

The recent raid on an unlicensed racetrack in Southern Oklahoma is a perfect setting for a brief discussion on the difference between malum per se and malum prohibitum.

For those of you who didn’t go to law school, malum per se means ‘wrong in and of itself’. Murder, for example, is malum per se. It’s always wrong. It was wrong before anyone ever thought of writing down laws, and it will remain so.

Malum prohibitum means wrong because it’s against the law. Racing horses, and betting on the outcome, isn’t wrong in and of itself. In Oklahoma, in fact, the state government encourages people to do so, as long as they’re getting their cut of the profits. Horseracing, and betting on the outcome of horse races, is only illegal if you try to do it without Big Brother saying it’s okay.

See how it works?

Now, follow the headlines for the next few weeks, and try to divide all the stories that involve law-breaking into these two categories. You may begin to see a pattern – some things are only against the law because entrenched interests want to limit competition (do you really need a license to do most of the things that require licenses in this world?) or because the government wants to get a cut of the action (which is why you can legally play poker at a casino, but not in your living room), or simply because the government needs a way to tax stuff without calling it a tax (seriously, is that little sticker on the Coke Machine really there to promote the common welfare?).

I have a feeling that most of the reasons people get mad at the government have to do with the ever-increasing amount of things that are filed under malum prohibitum that really should be filed under laissez-faire.

What’s your favorite ridiculous malum prohibitum law?

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Here’s a scenario for you:

You’ve had a few drinks at a bar – two or three at most. You get in your car, begin to drive home, but soon you start to feel woozy and it occurs to you the drinks might be kicking in. Not wanting to be on the road while impaired, you pull in to a parking lot, turn off the keys, put them in your pocket (or purse, if you’re a woman), and call someone to come pick you up.

While you’re waiting for your knight in shining armor, a police officer pulls up, makes you get out of the car, does a field sobriety test, and arrests you. Surely, you think to yourself, I’m not being arrested for DWI, am I?

Nope.

What you’re being charged with is being in “actual physical control of a motor vehicle” while under the influence of alcohol, pursuant to 47 O.S. §11-902(A).

But does it make sense to penalize a person who has been responsible enough to get themselves off the road? I don’t think it does. In fact, I think it creates an incentive for people to stay on the road while intoxicated, which is clearly not in anyone’s interest.

Can it really be the policy of the State of Oklahoma to encourage people to drive drunk?

Probably not. Then why have legislators and law enforcement officials created this incentive? Rarely do legislators think about the unintended consequences and reverse incentives of the legislation they create. More likely, the goal was to look good to voters; legislators especially love to be seen as “tough on crime”. Who can blame them? It’s good politics. But if the result is more drunk drivers on the road, isn’t it time to re-think this?

In short, if the legislative intent was to keep drunk drivers off the road, why punish citizens who are acting in unison with that intent?