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Sunday, August 24, 2014
Rights group alleges abuses by Kenya anti-terror police group
[JURIST] Kenya's Anti-Terrorism Police Unit (ATPU) has carried out a series of extrajudicial killings and enforced disappearances in violation of international human rights laws, Human Rights Watch (HRW) [advocacy website] reported [HRW report] Monday. Based on interview research conducted between November 2013 and June 2014, terrorism suspects were badly mistreated, killed, beaten, abducted and detained without access to families or lawyers. HRW called on Kenya to thoroughly investigate the allegations of human rights abuses and urged the US to suspend...
Zimmerman: No Appeal From The Court of Public Opinion (Update)
George Zimmerman was acquitted on a Saturday night. Keyboards were pounded. Reporters reported. Pundits opined. And the jury in the court of public opinion rendered its verdict.
Almost no criminal lawyer, prosecution or defense, saw a second degree murder conviction coming. Education and experience condemns us to view evidence and law with detached logic, so there is no emotionalism, no reliance on "common sense," to fudge the proof.
While juries regularly reach verdicts that bear little relation to the facts, evidence and applicable law, mostly because it's a deeply flawed system, that didn't happen here. The best discussion of what happened that has been produced thus far comes from the Unwashed Advocate, Eric Mayer, who succinctly lays it out.
Acquittal was the right verdict in this case, no matter how much you feel Zimmerman acted out of prejudice, or how terrible it is that a young man was killed.
But the court of public opinion rendered its opinion on twitter following the verdict. For those who embrace the "wisdom of crowds," consider its holding:
1. Trayvon Martin's family should appeal the verdict, up to the Supreme Court if necessary.
2. On appeal, they can make George Zimmerman testify.
3. Then, George Zimmerman will be convicted because a young man is dead.
It's not that people intentionally determined that the Constitution should be ignored. It's that the crowds have no clue. Maybe they slept through civics class. Maybe they don't remember. Maybe they don't care. But less than ten days after we celebrated the independence of this nation, the court of public opinion has decided they don't like them.
There will be no appeal because of the double jeopardy clause, which precludes it. Zimmerman did not have to testify, and will never have to testify in a criminal prosecution, because he has the right not to testify. And most sadly, the fact that a young man is dead does not compel the conclusion that someone be convicted of a crime.
So much for the adoration of crowdsourcing, or the desiderata that the public can be entrusted with the handling of the law. In the court of public opinion, assumption runs rampant, as people get their own "feel" for right and wrong, and then become so entrenched in their own bias that they refuse to consider the hard details of evidence and proof. People need no trial to tell them what happened. They hear a story and whatever gut reaction they have to it becomes their reality.
As it turns out, much of what was told about the death of Trayvon Martin is either false or mired in mystery. When left with the proposition that we will never know what "really" happened, the significance is that the prosecution then lacks evidence to prove its case. But Trayvon is dead, so it's unfair since he can't tell his side of the story? True, but that doesn't change the requirement that a defendant be proven guilty. The rule is not proof if its available, assumption if it's not. Except in the court of public opinion.
Is there nothing left to do? There is the possibility of a civil suit for wrongful death by Trayvon Martin's family, just as Nicole Brown Simpson's family sued O.J. The standard of proof is lower, "preponderance of the evidence" rather than "beyond a reasonable doubt," but the outcome will be money damages at worst, not conviction of a crime and imprisonment.
There is also the possibility of a prosecution in federal court for violating Trayvon Martin's civil right to live by shooting him, under the dreaded dual sovereignty that allows the feds a shot if the state fails to convict. That's what happened to LAPD Sgt. Stacey Koon in the Rodney King beating.
Will either of these happen? Time will tell. The former seems far more likely than the latter, but Trayvon's family may be more legally sophisticated by this point, such that they realize the difficulty that exists with providing evidence to prove their claim. It's not that they can't believe, but they can't prove.
As show trials go, this one has generated plenty of fodder for television heads to fill the empty minutes between commercials. But it has also shown that the court of public opinion can't be trusted. Americans still don't understand their own system. They don't get that the rights they want for themselves have to be given to people they despise as well. They refuse to accept that someone they feel with absolute certainty is guilty can be properly acquitted.
Did George Zimmerman have hate in his heart? Who knows. I don't. Neither do you, no matter how strongly you believe you do. But he wasn't proven to have killed Trayvon Martin because of his ill will toward a young black man, and when that happens under our system, acquittal must follow. Yet the court of public opinion refused to accept the verdict, instead pushing its million member jury deeper into ignorance.
There is one truth that neither conviction nor acquittal can change:
Update: Already this morning, television news has broadcast the twits of New York City politicians and candidates following the verdict. They have the potential to enlighten, to calm, to inform. Instead, they are pandering and inflaming the passions and ignorance of the public, playing the confirmation bias card.
Whether they too lack a working grasp of our legal system, or know better and just don't care, is unclear. Either way, a million people could end the day stupider than it began. Is it worth a vote? Don't answer.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Almost no criminal lawyer, prosecution or defense, saw a second degree murder conviction coming. Education and experience condemns us to view evidence and law with detached logic, so there is no emotionalism, no reliance on "common sense," to fudge the proof.
While juries regularly reach verdicts that bear little relation to the facts, evidence and applicable law, mostly because it's a deeply flawed system, that didn't happen here. The best discussion of what happened that has been produced thus far comes from the Unwashed Advocate, Eric Mayer, who succinctly lays it out.
Acquittal was the right verdict in this case, no matter how much you feel Zimmerman acted out of prejudice, or how terrible it is that a young man was killed.
But the court of public opinion rendered its opinion on twitter following the verdict. For those who embrace the "wisdom of crowds," consider its holding:
1. Trayvon Martin's family should appeal the verdict, up to the Supreme Court if necessary.
2. On appeal, they can make George Zimmerman testify.
3. Then, George Zimmerman will be convicted because a young man is dead.
It's not that people intentionally determined that the Constitution should be ignored. It's that the crowds have no clue. Maybe they slept through civics class. Maybe they don't remember. Maybe they don't care. But less than ten days after we celebrated the independence of this nation, the court of public opinion has decided they don't like them.
There will be no appeal because of the double jeopardy clause, which precludes it. Zimmerman did not have to testify, and will never have to testify in a criminal prosecution, because he has the right not to testify. And most sadly, the fact that a young man is dead does not compel the conclusion that someone be convicted of a crime.
So much for the adoration of crowdsourcing, or the desiderata that the public can be entrusted with the handling of the law. In the court of public opinion, assumption runs rampant, as people get their own "feel" for right and wrong, and then become so entrenched in their own bias that they refuse to consider the hard details of evidence and proof. People need no trial to tell them what happened. They hear a story and whatever gut reaction they have to it becomes their reality.
As it turns out, much of what was told about the death of Trayvon Martin is either false or mired in mystery. When left with the proposition that we will never know what "really" happened, the significance is that the prosecution then lacks evidence to prove its case. But Trayvon is dead, so it's unfair since he can't tell his side of the story? True, but that doesn't change the requirement that a defendant be proven guilty. The rule is not proof if its available, assumption if it's not. Except in the court of public opinion.
Is there nothing left to do? There is the possibility of a civil suit for wrongful death by Trayvon Martin's family, just as Nicole Brown Simpson's family sued O.J. The standard of proof is lower, "preponderance of the evidence" rather than "beyond a reasonable doubt," but the outcome will be money damages at worst, not conviction of a crime and imprisonment.
There is also the possibility of a prosecution in federal court for violating Trayvon Martin's civil right to live by shooting him, under the dreaded dual sovereignty that allows the feds a shot if the state fails to convict. That's what happened to LAPD Sgt. Stacey Koon in the Rodney King beating.
Will either of these happen? Time will tell. The former seems far more likely than the latter, but Trayvon's family may be more legally sophisticated by this point, such that they realize the difficulty that exists with providing evidence to prove their claim. It's not that they can't believe, but they can't prove.
As show trials go, this one has generated plenty of fodder for television heads to fill the empty minutes between commercials. But it has also shown that the court of public opinion can't be trusted. Americans still don't understand their own system. They don't get that the rights they want for themselves have to be given to people they despise as well. They refuse to accept that someone they feel with absolute certainty is guilty can be properly acquitted.
Did George Zimmerman have hate in his heart? Who knows. I don't. Neither do you, no matter how strongly you believe you do. But he wasn't proven to have killed Trayvon Martin because of his ill will toward a young black man, and when that happens under our system, acquittal must follow. Yet the court of public opinion refused to accept the verdict, instead pushing its million member jury deeper into ignorance.
There is one truth that neither conviction nor acquittal can change:
A young man named Trayvon died. He didn’t need to die. That is both tragic and sad.And there is another truth that twitter cannot change. For all the vast information that has become available to us by virtue of the internet, there is no wisdom of the crowds.
Update: Already this morning, television news has broadcast the twits of New York City politicians and candidates following the verdict. They have the potential to enlighten, to calm, to inform. Instead, they are pandering and inflaming the passions and ignorance of the public, playing the confirmation bias card.
Whether they too lack a working grasp of our legal system, or know better and just don't care, is unclear. Either way, a million people could end the day stupider than it began. Is it worth a vote? Don't answer.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
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Bank of America to Pay $17 Billion in Justice Department Settlement
Saturday, August 23, 2014
Rights group alleges abuses by Kenya anti-terror police group
[JURIST] Kenya's Anti-Terrorism Police Unit (ATPU) has carried out a series of extrajudicial killings and enforced disappearances in violation of international human rights laws, Human Rights Watch (HRW) [advocacy website] reported [HRW report] Monday. Based on interview research conducted between November 2013 and June 2014, terrorism suspects were badly mistreated, killed, beaten, abducted and detained without access to families or lawyers. HRW called on Kenya to thoroughly investigate the allegations of human rights abuses and urged the US to suspend...
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Fighting Video with Video
Sheriff's deputies in Clark County, Ohio, have been given dispensation to wear "pocket cameras" on the job. Not because someone decided it was a good idea for them to video their interactions with member of the public, which is not only a perfectly fine thing to do, but one that has been embraced by other department. According to the Dayton Daily News:
But what the Clark County Sheriff's office is doing shows the danger of playing this game. Inexplicably, police haven't quite gotten the memo that they are rather unique public employees. They aren't let loose on the streets with guns and shields because they are just a bunch of cool guys, but because they hold a special authority that society has entrusted to them to protect and serve.
When they take the oath and strap on theSam Browne body armor, they do with the knowledge that they are no longer acting as ordinary people who just happen to be entitled to seize other ordinary people by pointing a gun at their head. Their authority comes from the job, from the People, who put up the money for their uniform allowance.
Are there rules for the use of pocket cameras in Clark County? Who decides when the camera gets turned on? Must deputies preserve what the camera sees, whether it's good for them or not? Does Gene Kelly, the Sheriff, get to decide what's of "evidentiary value" and what's not? Who preserves the integrity of the video? On whose computer does it get downloaded? Or deleted? Or altered?
A picture may be worth a thousand words, but that's true whether the picture is accurate or modified to show something false. And if the picture shows a cop doing something bad, then the lack of a picture is worth even more words, the words of argument that there is no proof of a beating, a false arrest, a killing.
But the set up of deputies carrying personal video to offset the public having video of their own smacks of a deeply entrenched "us" versus "them" problem, and provides all sorts of opportunity for facile abuse. Cops want to video their interactions for everyone's benefit? Cool. But then it has to be done right, used from the initiation of all interactions and remain on until the bitter end, preserved in a manner that secures it from any alteration and available to everyone, cop or non-cop alike, should it be needed.
Why isn't the public required to do so if that's what you demand of cops? Because you are cops, whose function is to protect and serve at the behest of the public. This is the life you chose and the obligation that goes with it.
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Clark County Sheriff’s deputies are wearing pocket cameras that record their work to help their cases and to protect themselves against accusations of misconduct.So that's how it's going to be, if we record them, they record us. Tit for tat. Fight fire with fire. So nobody in Dayton will be arrested or hassled for videotaping police anymore? What's wrong with that?“Every call we go on, someone’s going to record us,” Clark County Sheriff Gene Kelly said. “We have that same technology.”
Deputies are not required to wear the cameras but can purchase them independently or with their uniform allowance.
Of course, that's not how it worked out when Rory Bruce was tried, but it reveals the one-way street attitude that video is going through on its way to maturity. When the cops want to use it, because it benefits them, it's perfect. A picture is worth a thousand words. When it reflects poorly on cops, it never tells the full story and should be completely disregarded.Kelly said that law enforcement can use the cameras to their benefit if there are false allegations.
“They say a picture is worth a thousand words,” Kelly said.
What Elliott records with his camera can be used for evidence.
“If I feel there are evidentiary purposes, I will submit it to the courts,” said Elliott, who has worn his for about a year.
But what the Clark County Sheriff's office is doing shows the danger of playing this game. Inexplicably, police haven't quite gotten the memo that they are rather unique public employees. They aren't let loose on the streets with guns and shields because they are just a bunch of cool guys, but because they hold a special authority that society has entrusted to them to protect and serve.
When they take the oath and strap on the
Are there rules for the use of pocket cameras in Clark County? Who decides when the camera gets turned on? Must deputies preserve what the camera sees, whether it's good for them or not? Does Gene Kelly, the Sheriff, get to decide what's of "evidentiary value" and what's not? Who preserves the integrity of the video? On whose computer does it get downloaded? Or deleted? Or altered?
A picture may be worth a thousand words, but that's true whether the picture is accurate or modified to show something false. And if the picture shows a cop doing something bad, then the lack of a picture is worth even more words, the words of argument that there is no proof of a beating, a false arrest, a killing.
Members of the Clark County Sheriff’s office are not permitted to have original copies of the digital media evidence after their shifts, according to digital media evidence policies for the office.
And what happens to the deputies if they do? Who decides what gets uploaded after a shift? Is this intended to prevent a deputy from screwing with videos at home or uploading embarrassing videos on Youtube of their interactions on the job?
There probably isn't anyone who disagrees with this, though its hardly as simple as Kelly would have it. We're still a ways off from figuring out how video will best serve "deputies and civilians," ignoring, of course, that deputies are civilians, but I hesitate to be overly critical of Ben Hunt, human resources and labor relations administrator at the Clark County Sheriff’s Office, for his confusion. It's got Tale of Two Cities potential, best and worst at the same time.“They can be used to protect deputies and civilians to be sure everything is safe and appropriate,” Hunt said.
Officials believe that the cameras will be helpful in protecting themselves and the community.
“I think there will be a time when everyone carries one,” said Kelly.
But the set up of deputies carrying personal video to offset the public having video of their own smacks of a deeply entrenched "us" versus "them" problem, and provides all sorts of opportunity for facile abuse. Cops want to video their interactions for everyone's benefit? Cool. But then it has to be done right, used from the initiation of all interactions and remain on until the bitter end, preserved in a manner that secures it from any alteration and available to everyone, cop or non-cop alike, should it be needed.
Why isn't the public required to do so if that's what you demand of cops? Because you are cops, whose function is to protect and serve at the behest of the public. This is the life you chose and the obligation that goes with it.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/14/fighting-video-with-video.aspx?ref=rss
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Pharma sales reps are FLSA exempt as outside salesmen (5-4)
This morning the US Supreme Court decided - on a 5-4 vote - that pharmaceutical sales representatives are "outside salesmen" and therefore exempt from overtime under the Fair Labor Standards Act. The Court also unanimously held that the Department of Labor's recently-announced contrary interpretation was entitled to exactly zero deference.
Christopher v. SmithKline Beacham (US Supreme Ct 06/18/2012)
Christopher, a pharmaceutical sales representative, sued the employer for violation of the Fair Labor Standards Act (FLSA) alleging failure to pay overtime. The trial court granted the employer's motion for summary judgment and denied Christopher's motion to amend the judgment based on the trial court's failure to consider an amicus brief filed by the Secretary of the Department of Labor (DOL). The 9th Circuit affirmed. The US Supreme Court affirmed (5-4).
The job of a pharmaceutical sales representative is to try to persuade physicians to write prescriptions for products in appropriate cases. For over 70 years DOL acquiesced in an interpretation that they were "outside salesmen" who are exempt from FLSA overtime requirements. In amicus briefs filed in Circuit courts DOL took the position that a "sale" requires a "consummated transaction." In Supreme Court briefing DOL's position was that there is no "sale" unless the employee "actually transfers title."
The Court said that the DOL's new interpretation is entitled to no deference at all because it would impose massive liability for conduct that occurred before the interpretation was announced, there had been no enforcement actions suggesting the industry was acting unlawfully, DOL gave no opportunity for public comment, and the interpretation is "flatly inconsistent" with the FLSA.
The FLSA definition of "sale" includes consignments, which do not involve a transfer of title. Although DOL regulations say that sales include the transfer of title, that does not mean a sale must include a transfer of title. The regulations also use the phrase "other disposition" which - in this unique regulatory environment - includes the work of pharmaceutical sales representatives. The representatives also bear all the exterior indicia of salesmen (average salaries exceeding $70,000, work that is difficult to standardize to a particular time frame, etc.)
The DISSENT reasoned that sales of drugs are made by pharmacists, not pharmaceutical sales representatives. The pharmaceutical sales representative neither make sales nor promote "their own sales." (The dissent agreed that the DOL's current views expressed in briefs are not entitled to any weight.)
Source: http://www.lawmemo.com/blog/2012/06/pharma_sales_re.html
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LawBiz® Legal Pad: No, It’s Not the Same: Pricing vs. Billing, Part 2
Ed advises: keep track of your work, bill timely, and collect efficiently.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/WBlS5sY1GFQ/
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Second Circuit Applies Morrison v. National Australia Bank to Allow Certain Extraterritorial Application of RICO
In European Community v. RJR Nabisco, Inc., Case No. 11-CV-2475 (2d Cir. Apr. 23, 2014), the United States Court of Appeals for the Second Circuit held that the Racketeer Influenced and Corrupt Organizations (“RICO”) statute, 18 U.S.C. § 1961, et seq., could apply to conduct outside the territory of the United States. In doing so, the Second Circuit addressed the United States Supreme Court’s ruling in Morrison v. National Australia Bank Ltd., 130 S. Ct. 2869 (2010) [blog article here], which held that United States statutes are presumed not apply to extraterritorial conduct, unless Congress has clearly indicated its intent that the statute have extraterritorial application. Applying Morrison, the Second Circuit determined that RICO could apply to extraterritorial conduct, because a number of the statutes listed as predicate acts for RICO liability clearly apply extraterritorially. The Second Circuit ultimately concluded “that RICO applies extraterritorially if, and only if, liability or guilt could attach to extraterritorial conduct under the relevant RICO predicate.” Thus, even after the Supreme Court’s ruling in Morrison, RICO liability can still attach to foreign conduct where the underlying predicate statute applies to extraterritorial conduct.
In this case, the European Community and 26 of its member states (collectively the “European Community”) brought an action against RJR Nabisco, Inc. and a number of its corporate affiliates (collectively, “RJR”) alleging that “RJR directed, managed, and controlled a global money-laundering scheme with organized crime groups in violation of the RICO statute, laundered money through New York-based financial institutions and repatriated the profits of the scheme to the United States, and committed various common law torts in violation of New York state law. The complaint alleged a number of predicate racketeering acts, as required by the RICO statue, including violations of the Travel Act, 18 U.S.C. § 1952, and violations of the statutes criminalizing mail fraud, wire fraud, money laundering and providing material support to foreign terrorist organizations. The complaint also alleged claims under New York state law for fraud, public nuisance, unjust enrichment, negligence, negligent misrepresentation, conversion and money had and received. RJR filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing primarily that RICO could not apply to extraterritorial conduct in the wake of Morrison.
In considering RJR’s motion to dismiss, the United States District Court for the Eastern District of New York determined that the racketeering enterprise alleged in the complaint was a foreign enterprise “which consisted largely of a loose association of Colombian and Russian drug-dealing organizations and European money brokers whose activity was directed outside the United States.” The district court held that the complaint failed to state a viable RICO cause of action, because the “focus” of the RICO statute is the racketeering enterprise, and, absent a domestic enterprise, Morrison’s presumption that United States statutes do not apply extraterritorially would preclude such extraterritorial application.
The Second Circuit disagreed, holding that “Congress manifested an unmistakable intent that certain of the federal statutes adopted as predicates for RICO liability apply to extraterritorial conduct.” The Second Circuit held further that when a predicate act underlying a RICO claim applies extraterritorially, then any claim based upon that act would also. In support of this holding, the Second Circuit cited RICO predicate statutes that only apply to extraterritorial conduct, such as 18 U.S.C. § 2332, which criminalizes killing and attempting to kill United States nationals outside of the United States. The Second Circuit found that these predicate statutes exhibited Congress’s intent that, in certain circumstances, RICO should apply extraterritorially. The Second Circuit then determined that the European Community’s claims that alleged predicate acts of money laundering and providing material support for terrorism could apply extraterritorially in light of the clear indications from Congress that those statutes were designed to criminalize foreign conduct.
The Second Circuit reached a different conclusion with respect to the RICO claims based upon predicate acts of mail fraud, wire fraud and violations of the Travel Act. The Court held that these claims did not apply extraterritorially because Congress did not exhibit the intent to make those statutes apply extraterritorially. The Second Circuit, however, allowed those claims to proceed, because it held that the complaint alleged “that RJR essentially orchestrated a global money laundering scheme from the United States by sending employees and communications abroad.” The Court held that this allegation, and other similar allegations, established a domestic enterprise and that the alleged scheme was directed at the United States in a way that had significant domestic ramifications. Ultimately, those allegations provided a sufficient domestic nexus for the claims to proceed past the pleading stage. The Second Circuit, however, made clear that, at trial and on summary judgment, the European Community would be required to provide proof of the domestic nature of those predicate statutory violations.
Whereas the Supreme Court’s decision in Morrison dealt specifically with the Securities Exchange Act of 1934, the Second Circuit’s application of Morrison to RICO claims in this case suggests that Morrison may have significant implications beyond the securities laws. Future decisions likely will rely upon the Court’s approach here of carefully heeding the underlying principals articulated in Morrison, and requiring a showing of clear Congressional intent before any federal statute will be applied to extraterritorial conduct.
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Officer Safety and Second Hand Smoke
Via John Wesley Hall at Fourth Amendment, a decision out of the 10th Circuit that puts an end to the pressing question of whether second hand smoke presents a sufficient justification to circumvent the 4th Amendment and enter a home without a warrant. Lest you think this is too ridiculous to be worthy of consideration, bear in mind this is on appeal, the district court having denied suppression.
In United States v. Mongold, Special Agent Ashley Stephens (who apparently is male) of the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) was investigating Claudia Moore, whom she knew to be a felon from prior dealings, for drug dealing. After conducting observations, she, together with three other agents, went to Moore's apartment to conduct a "knock and talk," since she lacked probable cause to get a warrant.
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In United States v. Mongold, Special Agent Ashley Stephens (who apparently is male) of the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) was investigating Claudia Moore, whom she knew to be a felon from prior dealings, for drug dealing. After conducting observations, she, together with three other agents, went to Moore's apartment to conduct a "knock and talk," since she lacked probable cause to get a warrant.
Aside: For those unaware, a "knock and talk" is a means of circumventing the warrant requirement by relying on submission to the shield, lies, fear and the possibility that the agents might either see or cause something to happen to give rise to an exception to the warrant requirement that would allow them to enter a home. And yes, it's been held to be perfectly lawful since anyone, cop or Fuller Brush salesman, can knock on your door and say "hi." Or scream "police", as the case may be.According to the testimony, Stephens heard "scurrying and shuffling" inside the apartment upon her knocking on the door, "which immediately caused us concern." A male voice asked who it was, and after he responded "police," there were "loud movements" and a "short delay" before Mongold opened the door. That's when the bad stuff happened.
After the delay, Mr. Mongold, who had been living in the home for several months, opened the door. Agent Stephens smelled marijuana and recognized what he believed were prison tattoos on Mr. Mongold. Agent Stephens asked for Ms. Moore. Mr. Mongold told him that he would go get her and turned to walk to the back of the house to find her. The officers followed him inside even though they did not have permission to enter the house.
Once inside, they saw ammunition. Knowing that Moore was a prior felon, possession of ammunition was a crime, and it went downhill from there. Mongold, Moore and her two adult children subsequently consented to a search of the place, which found drugs and guns.
The defendant moved to suppress before the district court, based on the initial warrantless entry. The government's argument below was that the smell of marijuana, combined with the "prison tats" on Mongold's arm, suggesting that he too was a felon, created a justifiable fear of officer safety, which allowed for Stephens to enter for a protective sweep. The court below also held the entry justified under exigent circumstances to preserve evidence.
The Circuit wasn't as impressed. While the court acknowledged that the smell of marijuana is accepted as a basis to believe there is pot inside, it merely gives rise to a belief that it's basic possession of marijuana.
But that wasn't the only argument. There remained their deep concern for the safety from the smell (yes, I'm being facetious calling it "second hand smoke," because it's unclear whether the smell is smoke or fresh pot, and the opinion really has nothing to do with the second-hand smoke aspect in any event).Based on the foregoing, if marijuana possession is the only crime for which the officers in this case had probable cause, the exigency exception for destruction of evidence should not apply because marijuana possession is not a serious crime.
Even the use of cool active verbs ("scurrying"), curious descriptors ("loud movements") and expressions of deep concern reflecting both the terrible, life-and-death dangers of conducting a "knock and talk" to circumvent the Constitution, didn't sway the court. Instead, the court reached the conclusion of remarkably wisdom: An idea so radical, so outlandish, that it never occurred to either the agents or the prosecutors: walk away. While this might make for good fodder to be chiseled into the lintels over courthouses everywhere, the bad news is that the opinion, while persuasive, is not precedential: At the suppression hearing, Agent Stephens argued that he feared for his and the other officers' safety because the home's owner, Ms. Moore, was a known felon, and he suspected Mr. Mongold was a felon as well, based on his "prison tattoos."
Officer safety is not an alternative ground to affirm because the first element of the test is dispositive. The Government presented no evidence that the officers had "reasonable grounds to believe that there [was] immediate need to protect their lives or others." Before entering the home, the officers had not seen a weapon or any other indication of heightened danger. They could most easily have protected the officers' safety by leaving Ms. Moore's home, not by entering it.
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value.
This, of course, means that the next time a second-hand smoke case arises, the district judge may not be willing to adopt such a radical concept as expecting the agents to walk away rather than conduct a warrantless search of a home after smelling marijuana or seeing prison tats, because they're very scary to agents.
And don't discount the possibility that if the odor was of burning pot, the agents would be authorized to break down the door to protect themselves from the second hand smoke. Truth is, this opinion doesn't preclude such a holding at all. It could still happen.
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Source: http://blog.simplejustice.us/2013/07/13/officer-safety-and-second-hand-smoke.aspx?ref=rss
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Attorney L. Lin Wood on Representing the Ramseys and Other High-Profile Individuals
John and Patsy Ramsey, Richard Jewell, and Gary Condit are names everyone has heard as they were all on trial in the court of public opinion. These cases were spread throughout the media and, even though there was never an arrest made in any, the public had judged the accused. L. Lin Wood was the lawyer representing these individuals as they fought for their reputations. An expert in First Amendment litigation and management of the media in high-profile cases, Wood has been referred to as "the attorney for the damned."
On this episode of The Paralegal Voice, Vicki Voisin has the opportunity to interview L. Lin Wood about the benefits and difficulties in representing high-profile individuals and how a paralegal can be most effective in these cases. Wood began his career in defamation cases when he represented Richard Jewell in the Centennial Olympic Park bombing case and has since represented the Ramseys, Gary Condit, attorney Howard Stern, and many others in whom the media took a particular interest. He describes how fighting against the media can be different than a regular plaintiff and how he protects his clients from public accusations. He explains that there are additional issues when dealing with a public figure including when to sue for slander and how to control what his clients say to the media. In terms of paralegals working in libel cases, there are three qualities Wood expects: acute knowledge about the case, understanding of the situation, and ability to keep track of a wealth of information coming from the media.
L. Lin Wood is an Atlanta attorney who has developed a national reputation during his more than 36 years as a trial lawyer focusing on civil litigation, representing individuals and corporations as plaintiffs or defendants in tort and business cases involving claims of significant damage. He can be found at www.whetriallaw.com.
Special thanks to our sponsors. NALA is a professional association for paralegals providing continuing education and professional certification programs for paralegals at nala.org. Also, visit ServeNow.com for a nationwide network of trusted, prescreened process servers.
On this episode of The Paralegal Voice, Vicki Voisin has the opportunity to interview L. Lin Wood about the benefits and difficulties in representing high-profile individuals and how a paralegal can be most effective in these cases. Wood began his career in defamation cases when he represented Richard Jewell in the Centennial Olympic Park bombing case and has since represented the Ramseys, Gary Condit, attorney Howard Stern, and many others in whom the media took a particular interest. He describes how fighting against the media can be different than a regular plaintiff and how he protects his clients from public accusations. He explains that there are additional issues when dealing with a public figure including when to sue for slander and how to control what his clients say to the media. In terms of paralegals working in libel cases, there are three qualities Wood expects: acute knowledge about the case, understanding of the situation, and ability to keep track of a wealth of information coming from the media.
L. Lin Wood is an Atlanta attorney who has developed a national reputation during his more than 36 years as a trial lawyer focusing on civil litigation, representing individuals and corporations as plaintiffs or defendants in tort and business cases involving claims of significant damage. He can be found at www.whetriallaw.com.
Special thanks to our sponsors. NALA is a professional association for paralegals providing continuing education and professional certification programs for paralegals at nala.org. Also, visit ServeNow.com for a nationwide network of trusted, prescreened process servers.
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Zimmerman: No Appeal From The Court of Public Opinion (Update)
George Zimmerman was acquitted on a Saturday night. Keyboards were pounded. Reporters reported. Pundits opined. And the jury in the court of public opinion rendered its verdict.
Almost no criminal lawyer, prosecution or defense, saw a second degree murder conviction coming. Education and experience condemns us to view evidence and law with detached logic, so there is no emotionalism, no reliance on "common sense," to fudge the proof.
While juries regularly reach verdicts that bear little relation to the facts, evidence and applicable law, mostly because it's a deeply flawed system, that didn't happen here. The best discussion of what happened that has been produced thus far comes from the Unwashed Advocate, Eric Mayer, who succinctly lays it out.
Acquittal was the right verdict in this case, no matter how much you feel Zimmerman acted out of prejudice, or how terrible it is that a young man was killed.
But the court of public opinion rendered its opinion on twitter following the verdict. For those who embrace the "wisdom of crowds," consider its holding:
1. Trayvon Martin's family should appeal the verdict, up to the Supreme Court if necessary.
2. On appeal, they can make George Zimmerman testify.
3. Then, George Zimmerman will be convicted because a young man is dead.
It's not that people intentionally determined that the Constitution should be ignored. It's that the crowds have no clue. Maybe they slept through civics class. Maybe they don't remember. Maybe they don't care. But less than ten days after we celebrated the independence of this nation, the court of public opinion has decided they don't like them.
There will be no appeal because of the double jeopardy clause, which precludes it. Zimmerman did not have to testify, and will never have to testify in a criminal prosecution, because he has the right not to testify. And most sadly, the fact that a young man is dead does not compel the conclusion that someone be convicted of a crime.
So much for the adoration of crowdsourcing, or the desiderata that the public can be entrusted with the handling of the law. In the court of public opinion, assumption runs rampant, as people get their own "feel" for right and wrong, and then become so entrenched in their own bias that they refuse to consider the hard details of evidence and proof. People need no trial to tell them what happened. They hear a story and whatever gut reaction they have to it becomes their reality.
As it turns out, much of what was told about the death of Trayvon Martin is either false or mired in mystery. When left with the proposition that we will never know what "really" happened, the significance is that the prosecution then lacks evidence to prove its case. But Trayvon is dead, so it's unfair since he can't tell his side of the story? True, but that doesn't change the requirement that a defendant be proven guilty. The rule is not proof if its available, assumption if it's not. Except in the court of public opinion.
Is there nothing left to do? There is the possibility of a civil suit for wrongful death by Trayvon Martin's family, just as Nicole Brown Simpson's family sued O.J. The standard of proof is lower, "preponderance of the evidence" rather than "beyond a reasonable doubt," but the outcome will be money damages at worst, not conviction of a crime and imprisonment.
There is also the possibility of a prosecution in federal court for violating Trayvon Martin's civil right to live by shooting him, under the dreaded dual sovereignty that allows the feds a shot if the state fails to convict. That's what happened to LAPD Sgt. Stacey Koon in the Rodney King beating.
Will either of these happen? Time will tell. The former seems far more likely than the latter, but Trayvon's family may be more legally sophisticated by this point, such that they realize the difficulty that exists with providing evidence to prove their claim. It's not that they can't believe, but they can't prove.
As show trials go, this one has generated plenty of fodder for television heads to fill the empty minutes between commercials. But it has also shown that the court of public opinion can't be trusted. Americans still don't understand their own system. They don't get that the rights they want for themselves have to be given to people they despise as well. They refuse to accept that someone they feel with absolute certainty is guilty can be properly acquitted.
Did George Zimmerman have hate in his heart? Who knows. I don't. Neither do you, no matter how strongly you believe you do. But he wasn't proven to have killed Trayvon Martin because of his ill will toward a young black man, and when that happens under our system, acquittal must follow. Yet the court of public opinion refused to accept the verdict, instead pushing its million member jury deeper into ignorance.
There is one truth that neither conviction nor acquittal can change:
Update: Already this morning, television news has broadcast the twits of New York City politicians and candidates following the verdict. They have the potential to enlighten, to calm, to inform. Instead, they are pandering and inflaming the passions and ignorance of the public, playing the confirmation bias card.
Whether they too lack a working grasp of our legal system, or know better and just don't care, is unclear. Either way, a million people could end the day stupider than it began. Is it worth a vote? Don't answer.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Almost no criminal lawyer, prosecution or defense, saw a second degree murder conviction coming. Education and experience condemns us to view evidence and law with detached logic, so there is no emotionalism, no reliance on "common sense," to fudge the proof.
While juries regularly reach verdicts that bear little relation to the facts, evidence and applicable law, mostly because it's a deeply flawed system, that didn't happen here. The best discussion of what happened that has been produced thus far comes from the Unwashed Advocate, Eric Mayer, who succinctly lays it out.
Acquittal was the right verdict in this case, no matter how much you feel Zimmerman acted out of prejudice, or how terrible it is that a young man was killed.
But the court of public opinion rendered its opinion on twitter following the verdict. For those who embrace the "wisdom of crowds," consider its holding:
1. Trayvon Martin's family should appeal the verdict, up to the Supreme Court if necessary.
2. On appeal, they can make George Zimmerman testify.
3. Then, George Zimmerman will be convicted because a young man is dead.
It's not that people intentionally determined that the Constitution should be ignored. It's that the crowds have no clue. Maybe they slept through civics class. Maybe they don't remember. Maybe they don't care. But less than ten days after we celebrated the independence of this nation, the court of public opinion has decided they don't like them.
There will be no appeal because of the double jeopardy clause, which precludes it. Zimmerman did not have to testify, and will never have to testify in a criminal prosecution, because he has the right not to testify. And most sadly, the fact that a young man is dead does not compel the conclusion that someone be convicted of a crime.
So much for the adoration of crowdsourcing, or the desiderata that the public can be entrusted with the handling of the law. In the court of public opinion, assumption runs rampant, as people get their own "feel" for right and wrong, and then become so entrenched in their own bias that they refuse to consider the hard details of evidence and proof. People need no trial to tell them what happened. They hear a story and whatever gut reaction they have to it becomes their reality.
As it turns out, much of what was told about the death of Trayvon Martin is either false or mired in mystery. When left with the proposition that we will never know what "really" happened, the significance is that the prosecution then lacks evidence to prove its case. But Trayvon is dead, so it's unfair since he can't tell his side of the story? True, but that doesn't change the requirement that a defendant be proven guilty. The rule is not proof if its available, assumption if it's not. Except in the court of public opinion.
Is there nothing left to do? There is the possibility of a civil suit for wrongful death by Trayvon Martin's family, just as Nicole Brown Simpson's family sued O.J. The standard of proof is lower, "preponderance of the evidence" rather than "beyond a reasonable doubt," but the outcome will be money damages at worst, not conviction of a crime and imprisonment.
There is also the possibility of a prosecution in federal court for violating Trayvon Martin's civil right to live by shooting him, under the dreaded dual sovereignty that allows the feds a shot if the state fails to convict. That's what happened to LAPD Sgt. Stacey Koon in the Rodney King beating.
Will either of these happen? Time will tell. The former seems far more likely than the latter, but Trayvon's family may be more legally sophisticated by this point, such that they realize the difficulty that exists with providing evidence to prove their claim. It's not that they can't believe, but they can't prove.
As show trials go, this one has generated plenty of fodder for television heads to fill the empty minutes between commercials. But it has also shown that the court of public opinion can't be trusted. Americans still don't understand their own system. They don't get that the rights they want for themselves have to be given to people they despise as well. They refuse to accept that someone they feel with absolute certainty is guilty can be properly acquitted.
Did George Zimmerman have hate in his heart? Who knows. I don't. Neither do you, no matter how strongly you believe you do. But he wasn't proven to have killed Trayvon Martin because of his ill will toward a young black man, and when that happens under our system, acquittal must follow. Yet the court of public opinion refused to accept the verdict, instead pushing its million member jury deeper into ignorance.
There is one truth that neither conviction nor acquittal can change:
A young man named Trayvon died. He didn’t need to die. That is both tragic and sad.And there is another truth that twitter cannot change. For all the vast information that has become available to us by virtue of the internet, there is no wisdom of the crowds.
Update: Already this morning, television news has broadcast the twits of New York City politicians and candidates following the verdict. They have the potential to enlighten, to calm, to inform. Instead, they are pandering and inflaming the passions and ignorance of the public, playing the confirmation bias card.
Whether they too lack a working grasp of our legal system, or know better and just don't care, is unclear. Either way, a million people could end the day stupider than it began. Is it worth a vote? Don't answer.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
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Friday, August 22, 2014
‘Michael Jordan’ of Court Reporting Suffers Upset Defeat
Jo Ann Bryce didn't win any medals in Sochi, but in the Olympics of court reporting, she's a champion.
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Why It’s Important for Lawyers to Build Expertise and Stand Out From A Crowd
In this increasingly saturated market, being a successful lawyer means standing out from the crowd and becoming the expert in a specific field. Due to economic pressures, it is now necessary for a lawyer to develop a powerful brand in order to make a good living. This means going above and beyond being a hard worker and a self-aware lawyer. Additional research in the field, networking, and self-promotion to garner awareness are all necessary actions required to thrive in the legal community.
In this episode of The Legal Toolkit, Jared Correia interviews internationally established marketing strategy consultant, Dorie Clark, about why it is important for lawyers to become subject matter experts, how they might realistically do so, and what the benefits of success are. Clark explains how many lawyers don't try to become experts because they don't believe it is possible, others think that expertise and success should fall into their laps due to hard work, and a third group think that it requires a genius level of intelligence. They should instead be expanding an expert niche, doing original research, combining ideas and fields, or creating a definitive guide to a system. Although expertise requires additional work, the benefits include a more trusting relationship with clients resulting in increased efficiency and results.
Dorie Clark is the CEO at Clark Strategic Communications and is a frequent contributor to Forbes, Harvard Business Review, and Entrepreneur. She has guest lectured at Harvard Business School, the Harvard Kennedy School, Stanford University's Graduate School of Business, the Wharton School and the MIT Sloan School of Management. Her new book, Stand Out: How To Find Your Breakthrough Idea and Build a Following Around It, further delves into the topics discussed in this podcast.
In this episode of The Legal Toolkit, Jared Correia interviews internationally established marketing strategy consultant, Dorie Clark, about why it is important for lawyers to become subject matter experts, how they might realistically do so, and what the benefits of success are. Clark explains how many lawyers don't try to become experts because they don't believe it is possible, others think that expertise and success should fall into their laps due to hard work, and a third group think that it requires a genius level of intelligence. They should instead be expanding an expert niche, doing original research, combining ideas and fields, or creating a definitive guide to a system. Although expertise requires additional work, the benefits include a more trusting relationship with clients resulting in increased efficiency and results.
Dorie Clark is the CEO at Clark Strategic Communications and is a frequent contributor to Forbes, Harvard Business Review, and Entrepreneur. She has guest lectured at Harvard Business School, the Harvard Kennedy School, Stanford University's Graduate School of Business, the Wharton School and the MIT Sloan School of Management. Her new book, Stand Out: How To Find Your Breakthrough Idea and Build a Following Around It, further delves into the topics discussed in this podcast.
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Many Seek Justice In Ferguson, Mo., But Will Have To Wait Awhile
Demonstrators want an indictment of the police officer who fatally shot Michael Brown earlier this month. But investigations — one of them a federal civil rights case — can take weeks, if not months.
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Can Technology Fuel Small Firms: J. Craig Williams Interview At LegalTech West Coast
During the 2014 LegalTech West Coast trade show, Legal Talk Network producer Laurence Colletti interviews Lawyer 2 Lawyer host J. Craig Williams who specializes in civil litigation, white collar criminal matters, as well as admiralty and tax issues. Together they discuss how small law firms use technologies to even the playing field with large law firms. Williams explains that technology is pervasive in how lawyers give trial presentations, communicate with clients, market their services, and even manage a practice. Small and medium sized firms can adapt more quickly to new technologies making up for their lack of big-firm resources. Tune in for 3 tools every lawyer should be using and 3 ways to make a practice more nimble.
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Holder Seeks To Soothe Nerves During Visit To Ferguson
The attorney general hugged community leaders, a highway patrol captain and the mother of Michael Brown during his visit, and got an update on the federal investigation into the teen's shooting.
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Are you cheating yourself?
The business cycle consists of three elements: marketing to get the new client and retain the old client; production to produce and deliver the legal service, advice and/or documents; and finance to collect your billings and operate your firm. The first two tend to be the focus of most lawyers. Billings and collections tend to be ignored or given short shrift or delegated to a staff member with less interest and skill.
One statistic shows that sole practitioners spend 40% of their time in non-billing tasks, such as marketing, billing, collections and other aspects of running the law practice. In firms of 11 to 20 lawyers, the percent falls dramatically to 8%. Hence, the larger firm earns more money. They produce more effort; they bill more; and, even with poor collection efforts, they will likely collect more revenue than their solo counterparts.
Perhaps you should engage personnel to deal with some of the non-billing tasks, whether internally or outsourced and/or perhaps you should consider practice management software as your assistant. Failure to attain the appropriate resources to enhance your production efforts and non-billing needs is cheating yourself. Coaching will help you understand how to address these issues.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/fMA8QXkoUEc/
Supreme Court blocks Virginia same-sex marriages
[JURIST] The US Supreme Court [official website] on Wednesday put a hold [order, PDF] on same-sex marriage in Virginia as it takes time to decide whether same-sex couples should be allowed to wed nationwide. The hold, which is the result of the court granting a stay application filed on behalf of opponents of same-sex marriage, means that the July 28 ruling [opinion, PDF] by the US Court of Appeals for the Fourth Circuit [official website] that declared Virginia's voter-approved same-sex...
Source: http://jurist.org/paperchase/2014/08/supreme-court-puts-blocks-virginia-same-sex-marriages.php
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Thursday, August 21, 2014
Entropy: It's Not What It Used To Be*
In thermodynamics, entropy is the measure of how things go from order to disorder. Its application is far broader, however, applying to life in general. For those of us, like me, who strive to maintain order, it is the enemy.
My ability to do what I do, to function, depends on my maintaining order. In a world of chaos, it's a constant battle. No man is an island, and so almost every function relies to some greater or lesser extent on interactions with others. In order to prepare an affidavit, a person must take or return my phone call, do so in time for me to get their words on paper in both an accurate and comprehensible manner, make sure I've captured their thoughts properly, get it executed and file and serve the document. If the person decides that he would rather go to the beach than speak with me, but will get back to me later, the entire scheme can fall apart. A call back on Monday at 11 doesn't help when the papers are due Monday at 9.
When I explain how their conduct affected my ability to do my job, the response is one of two things: "Oh, I didn't realize," or "you should have told me that before." Of course, I can't tell you anything if you don't take or return my call. "Oh."
It's a fragile set up at best. Some people are reliable in a way that allows other to count on them, to plan ahead and not find themselves in a quagmire from which they can't emerge. These are people who make other people's lives go smoothly. They tend to be somewhere along the anal compulsive spectrum, which sounds pretty nasty but is actually a really good thing for organized people, especially lawyers.
Others are chaos personified, off in the thousand directions without any thought whatsoever to the consequences for themselves or those who rely on them. Their alternative to order is their tolerance of disorder. It's not that they don't eventually come to realize what they failed to accomplish because of their chaotic approach to responsibility, but that they can live with themselves that way.
The other day, a massive failure to accomplish a task upon which I relied was explained to me as the result of unforeseen circumstances. It wasn't quite true. Getting hit by a truck is an unforeseen circumstances. Making overly optimistic promises which you chose not to keep when time or interest gets tight is not an unforeseen circumstances. It's life.
There is a difference between explanations and excuses. When something doesn't go as intended, which happens despite best efforts and planning, there is either an explanation or it was just a screw-up. If the former, then there is a reason. If there is no reason, then it's a screw-up. Yes, screw-ups happen. No, they don't have to. Are they your fault? Yes. That's why we call them screw-ups.
Excuses are a different animal. Excuses are explanations that shift the fault onto the party who caused the problem. Most are imperfect, in that fault is born by more than one party, often all parties, who either failed to do what they should have, or said they would, as well as parties who failed to anticipate or accommodate the chaos wrought by others involved. See how that works? We knew that other people screw-up, and so we assume the responsibility of inserting that potential in our equation of order. When we organize our world, we do so in anticipation of entropy.
It's all a choice. Frankly, the failure to realize this, to conduct oneself as an island of order in a world tending toward chaos, to both live an ordered life and recognize that others don't or won't, is a choice. If you want to do what you can to do better, be more responsible, keep your promises to others despite reliance on those who infuse their chaos into your world, you can. But you must make the choice.
It's hard to fight entropy, but those who do keep the world running.
* The title is brazenly stolen from Buzzfeed's 21 Jokes Only Nerds Will Understand.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
My ability to do what I do, to function, depends on my maintaining order. In a world of chaos, it's a constant battle. No man is an island, and so almost every function relies to some greater or lesser extent on interactions with others. In order to prepare an affidavit, a person must take or return my phone call, do so in time for me to get their words on paper in both an accurate and comprehensible manner, make sure I've captured their thoughts properly, get it executed and file and serve the document. If the person decides that he would rather go to the beach than speak with me, but will get back to me later, the entire scheme can fall apart. A call back on Monday at 11 doesn't help when the papers are due Monday at 9.
When I explain how their conduct affected my ability to do my job, the response is one of two things: "Oh, I didn't realize," or "you should have told me that before." Of course, I can't tell you anything if you don't take or return my call. "Oh."
It's a fragile set up at best. Some people are reliable in a way that allows other to count on them, to plan ahead and not find themselves in a quagmire from which they can't emerge. These are people who make other people's lives go smoothly. They tend to be somewhere along the anal compulsive spectrum, which sounds pretty nasty but is actually a really good thing for organized people, especially lawyers.
Others are chaos personified, off in the thousand directions without any thought whatsoever to the consequences for themselves or those who rely on them. Their alternative to order is their tolerance of disorder. It's not that they don't eventually come to realize what they failed to accomplish because of their chaotic approach to responsibility, but that they can live with themselves that way.
God, grant me the serenity to accept the things I cannot change,Then again, it has nothing to do with God. It has to do with us. We make choices. If you're inclined to believe in a deity, then know that the deity imbued you with the power to make wise or foolish choices, and left it to you to decide which.
The courage to change the things I can,
And wisdom to know the difference.
You can choose a ready guide in some celestial voice.When I'm asked how I manage to get as much done in a day as I do, the answer is order. I organize. I plan ahead. I try to anticipate the chaos I will confront in the course of trying to get things done so that I can accommodate it as much as possible, and will give myself enough room so that someone else's choice of disorder won't completely undermine what I need to accomplish.
If you choose not to decide, you still have made a choice.
You can choose from phantom fears and kindness that can kill;
I will choose a path that's clear-
I will choose Free Will.
The other day, a massive failure to accomplish a task upon which I relied was explained to me as the result of unforeseen circumstances. It wasn't quite true. Getting hit by a truck is an unforeseen circumstances. Making overly optimistic promises which you chose not to keep when time or interest gets tight is not an unforeseen circumstances. It's life.
There is a difference between explanations and excuses. When something doesn't go as intended, which happens despite best efforts and planning, there is either an explanation or it was just a screw-up. If the former, then there is a reason. If there is no reason, then it's a screw-up. Yes, screw-ups happen. No, they don't have to. Are they your fault? Yes. That's why we call them screw-ups.
Excuses are a different animal. Excuses are explanations that shift the fault onto the party who caused the problem. Most are imperfect, in that fault is born by more than one party, often all parties, who either failed to do what they should have, or said they would, as well as parties who failed to anticipate or accommodate the chaos wrought by others involved. See how that works? We knew that other people screw-up, and so we assume the responsibility of inserting that potential in our equation of order. When we organize our world, we do so in anticipation of entropy.
It's all a choice. Frankly, the failure to realize this, to conduct oneself as an island of order in a world tending toward chaos, to both live an ordered life and recognize that others don't or won't, is a choice. If you want to do what you can to do better, be more responsible, keep your promises to others despite reliance on those who infuse their chaos into your world, you can. But you must make the choice.
It's hard to fight entropy, but those who do keep the world running.
* The title is brazenly stolen from Buzzfeed's 21 Jokes Only Nerds Will Understand.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/14/entropy-its-not-what-it-used-to-be.aspx?ref=rss
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