Monthly Archives: August 2016

The canary in the stream

Horse fly larva

Horse fly larva

The expression and the actual practice is “the canary in the coal mine,” a means to detect deadly levels of carbon dioxide gas that overwhelms the canary, signaling to the miners that they might succumb next, and so they are fairly warned to escape.

There are comparable early warning signs, using other small creatures, to detect whether the river and stream waters that we drink, fish and swim in may be “impaired,” or significantly degraded.

Unfortunately, we do have “impaired waters” – so this is not an academic question.

All our County’s streams are affected by human activities, especially development, and some do not meet the standards of the Clean Water Act and Virginia Water Quality Standards for recreational use and aquatic life.

We have to be concerned about Catoctin Creek and Goose Creek and their tributaries, Little River, Limestone Branch, Piney Run, Broad Run and Sugarland Run.  We all have an obligation as stewards to use but not alter or compromise this most essential natural resource, the waters by which we live.

We have pollution from storm water runoff, grazing, failing septic tank systems.  The more impervious surfaces we have, the more our watersheds are compromised.  Nor can we ignore the fecal bacteria mostly due to livestock.  We have to remediate against these polluting practices.

The good news is that there are things we can do to protect and preserve our waterways and we have the means to detect when our streams are “impaired.” Continue reading

Homeland insecurity

concordmilitiaWe have changed our definition of what’s freedom.

I stand in court rooms in defense of the Accused and invoke the presumption we are all innocent including those charged.

Our government treats us, however, as if we are all presumed guilty, that we must prove otherwise, and we are all treated as suspect for the commission of some unstated possible terrorist act – without any evidence whatsoever.

We have become accustomed to being searched and radiated at airports and public buildings, though we comply reluctantly.

For years now the government, “our” government, has also been collecting every bit of information it can about who we are, what we do, what we say, where we go, what we write, our financial holdings, and with whom we associate.

Our personal information is being inhaled into the government’s mammoth data banks at the cost of our expectation and right to be let alone.

Yet, we brag our freedom is the envy of the world.

The fear of those who would govern this nation is compromising the freedom of the governed.

When 9-11 occurred, I was ashamed of the members of Congress.  Little has changed since. Continue reading

Trapped in a cave

trappedincaveThere’s a marvelous old story of imagined persons chained in place by their legs and necks since childhood staring straight ahead at a blank wall in a darkened cave deep in the earth.

They see only the reflections and shadows on that blank wall and what they see are the projections of puppets and objects passing before a bright fire but the source is hidden from their sight and knowledge atop a wall behind them.

These shades, and echoes of sound, are their only truth; they know no more.

As in every good story of captivity, we require an escape from these “unkindly” shackles, and one person does crawl up a tunnel to the sunlight above, finding it difficult to comprehend the light, still preferring the familiar shadow world below, but soon, with some difficulty, realizing the shadowy images below are false, unreal, forms of misdirection, and he feels pity for those left behind.

The intent of this allegory is obvious. We are metaphorically shackled by what we fail to question and examine and learn.

Case in point – we have a national debate that has sadly reduced for many to which presidential candidate is worse for the nation. (I have a different view about Hillary than those who see it this way.) But, in the debate of who is worse, Donald Trump is winning hands down.

It’s not just about who may win, although that is what we talk about almost 24/7.

Speaker Ryan fears he would win fewer House seats if he opposed Trump.

Senator McCain fears he can only win his Senate Primary if he supports Trump.

Many shun Trump but don’t oppose him because they want to win this congressional seat or that senate seat.

These are the shadows on our public wall that we stare at day by day. Continue reading

Equal justice for all? Not really!

supremecourtbuildingJustice is really much more unequal and arbitrary than as advertised, especially if you can’t afford to hire your own counsel.

I’ve been active in the National Association of Criminal Defense Lawyers (NACDL), served on their Board of Directors some time ago, and we described ourselves as “Liberty’s Last Champions.”

We represent those who have the resources to defend themselves and those who don’t.

Among our most worthy public defenders, years ago, was an NACDL member from Louisiana who said he couldn’t represent a client effectively, not within the bounds of ethical conduct, or the constitution, told this to the Louisiana courts, confessed that he was ineffective to represent the indigent clients that he was assigned to represent because the public defender’s office had not the resources to handle the cases, not the computer power, not the time to research the law, not the investigators to help prepare the facts of the case to determine whether a defense or a negotiated plea was the correct course. Louisiana reformed its system, and they’re going through another iteration as I write this.

But Virginia hasn’t gotten the message.

There is an outstanding lawyer who serves as a public defender in Loudoun County, is as efficient as one could possibly be, smart as could be at the law, and has a current case load of 178 cases.

Others in the public defenders office have similar caseloads.

Imagine what it takes to coordinate 178 different legal cases, to do so thoughtfully, to investigate and research them, on statutory and court regulated deadlines.

Consider also how motivated a public defender must be to overcome the fact that they are being paid, on average, $15,000 less a year than the Assistant Commonwealth Attorneys.

One of the critical phases of representation for an Accused who can’t pay for counsel is the bail that permits them to be free while the charges are pending.

We say that the Accused is innocent but we act quite the opposite way when setting bail, it appears to be about everything else, and the standard in many cases is not whether the Accused will show up, or presents a danger to himself or to others.

You should understand, when there is a bail hearing, and especially for a person who can’t afford counsel, he or she usually doesn’t come to court, they sit in a room with a tv at the Adult Detention Center, in a prison jump suit, watching and responding on a tv feed to the tinny sounding proceedings in a court room across town.

The communications at such bail hearings between a public defender and the Accused is non-existent.

You might think that the Accused receives a copy of the criminal complaint stating the charge and the brief affidavit of probable cause – why they were charged. But the Commonwealth gives the Accused as little information as possible.

Recently, I got “open file” discovery in Loudoun, meaning I get to look at “everything,” so they say, but they want me to copy it with a pen and paper, no xeroxing please, wouldn’t make available a copy, no, you can’t move that file, and, on this last go round, while looking at the file, there was a tab for a search warrant for a cell phone belonging to my client, but neither the warrant nor the supporting affidavit was in the “open file,” and I was told afterwards to get it from the court file. So much for that part about serving the Accused with a warrant when invading his 4th Amendment right to be let alone.

It is little wonder that the ACLU of Virginia recently issued a report, titled, “Unparalleled Power,” because of “events in Virginia and across the country [that] have sparked conversations about racial injustices, mental illness, the failure of the War on Drugs, and the enormous unnecessary cost of mass incarceration.”

The report charges that Commonwealth Attorneys in Virginia have “consistently resisted change,” meaning “common sense reforms,” and instead “lobbied the General Assembly to ramp up the failed war on Drugs.”

It’s a fixed game pretty much when, according to the ACLU, the Commonwealth Attorneys “have the authority to to decide how many charges a person will face at trial, and whether those charges will carry mandatory minimums.”

The ACLU doesn’t even think to suggest the judges rein in the prosecutors – as they hardly ever do.

The ACLU wrote, “prosecutors are rarely sanctioned for ethical or constitutional violations.”

Houston we have a problem but, unlike, NASA we don’t seem to have the gumption to solve it.

Sexism in America

Two great women (Hillary Clinton and Holly Flannery) and one impressed guy

Two great women (Hillary Clinton and Holly Flannery) and one impressed guy

On how far we have to go – well, we have quite a ways yet to go on respecting a woman’s dignity and right as a person to be treated as an equal.

On NPR, the next day after Secretary Hillary Clinton accepted the presidential nomination in the City of Brotherly Love, there was an on-air discussion among both men and women wondering – “Why didn’t Hillary cry?” and “Wouldn’t that have helped?”

Is a woman not perceived as human unless she sheds a tear? This semi-conscious sexism drives me crazy. What’s most distressing is that any woman would suggest another woman should cry for some calculated political effect – what I consider a disappointing form of sexist masochism.

If Hillary had felt the moment in such a way that she cried, then fine, but to suggest this as the projected and expected profile of any woman is sexist.

So yeah, I think these NPR commentators, men and women, were sexist pigs (with apologies to my pet pigs). Continue reading