Archive for January, 2010

Putting My ALR Skills to “Good Use”

Every year, my parents give us kids a page-a-day calendar. One year it was Dilbert. One year it was Lawyer Jokes. This year? “Duh! The Dumbest Things Ever Said or Done.” Each day is a new adventure into just how ridiculous we are as a species. Last Friday’s entry was no exception:

Original Thinkers

In 1975 a North Dakota schoolteacher asked a court to change his name to 1069, which, he claimed, represented his unique relationship with the universe. When the judge turned him down, 1069 pursued his right to use a number as a name through the appeals court, where a judge asked if he would consider using the name Juan instead of the number One.

The appeals court found the idea of using a number for a name “offensive to human dignity.” The Supreme Court refused to hear 1069’s case bceause it lacked “a substantial federal question.”

Of course, this little bit piqued my interest. What better way, I thought, to put my new found Advanced Legal Research skills to the test than by tracking down ol’ 1069’s cases and seeing if the Supreme Court really did throw it out for a lack of subject matter jurisdiction? So, I hopped on Westlaw, did some quick searching, and moments later I was staring at his North Dakota Supreme Court opinion. In re Dengler, 246 N.W.2d 758 (N.D. 1976). Problem is, there’s no subsequent appellate history. He didn’t appeal it to the U.S. Supreme Court. Plus, there’s no reference to the name being “offensive to human dignity.” The case does contain a citation to a New Jersey case that said names would be refused if it is “the choice of a name that is bizarre, unduly lengthy, ridiculous or offensive to common decency and good taste,” but there’s no further mention of offensiveness. The court’s rejection of his application is mainly on the grounds of statutory construction in that “1069” doesn’t fit the statutory definition of a name.

The fact that this blurb got the facts of the case so incredibly wrong caused me to do a little more digging. I pulled his name from the case, Michael Herbert Dengler, and plugged it into Google. Apparently this guy garnered some attention, with Time Magazine doing a piece on him in 1977. The details were somewhat different, though. This 1069 was seeking to change his name in Minnesota, not North Dakota. This 1069 was a short order cook, not a schoolteacher. Then there’s the date… 1977, a year after the North Dakota decision. So I did a bit more research. Slate had the answers. Apparently he was so intent on changing his name to 1069 that he went to Minnesota and tried the whole thing again. The Minnesota Supreme Court did in fact agree with the trial court’s assessment that calling a person by a number was an “abject dehumanization and totalitarian deprivation of dignified human privacy.” In re Dengler, 287 N.W.2d 637 (Minn. 1979). Additionally, the Supreme Court did in fact reject 1069’s petition for certiorari in that case for lack of a substantial federal question.

The sad thing… I looked all of this up on Westlaw. A quick google search and subsequent Google Scholar search would have yielded me the same answers and saved a ton of money in Westlaw billing fees. So much for good use… I suppose the joke’s on me.

Next Time on Adventures in Law School Nerdiness: Was the North Dakota suit issue preclusive of 1069’s Minnesota claim?

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Dr. McCriminal or: How I Learned to Stop Worrying and Love the Guidelines

The Federal Sentencing Guidelines are a bit of a strange beast in the realm of criminal law. Created primarily to create judicial uniformity in sentencing, the guidelines are a macabre concoction of equal parts IRS Code, treasure hunt, and arithmetic with a twist of the absurd that don’t actually seem to do much in the way in making sentencing more uniform. If actual practice is anything like the past few Sentencing class periods, it would seem that the guidelines cause more confusion and disparity than uniformity. What the guidelines do actually do is take some of the discretion in sentencing from judges and gives it to prosecutors, in addition to creating room for advocacy in surprising and fun areas like whether an official victim existed or the crime itself was against an official. It’s a six point swing!

Some Background
For those of you not familiar with the guidelines, the process of sentencing for federal crimes is not at all similar to the state method. In state courts, either the judge or the jury sets the sentence for the crime committed after hearing evidence related to sentencing matters (this comes after conviction for the actual offense). In federal court, the Sentencing Commission, in its manifold wisdom, thought that it would be more uniform and efficient if lawyers had to do math (every lawyer’s favorite subject!) to figure out what the sentence on a particular offense is. Each offense starts out with a base point score. You add points for various things related to the offense. For example, aggravated assault has a base score of 14. Add 2 points if the assault involved more than “minimal planning.” Add 3 points if the assault caused bodily injury, 5 if serious bodily injury, or 7 for permanent or life-threatening bodily injury. In case you can’t figure out whether the injury was serious or permanent/life-threatening, you can just add 6 points and you’re okay. As you can see, it can get complex quickly… And that’s only the first little set of things you have to figure out! If there are multiple counts to the offense, you have to group like offenses together and figure out if multiple groups are close enough in score to increase your offense score. Next you calculate the defendant’s criminal history category (anywhere from I to VI, depending on the length of the defendant’s rap sheet), cross reference that with the offense score, and presto! You have your sentencing range. But wait, there’s more! If the person is a career offender or a terrorist, toss all that hard work you just completed out the window and come up with a new, higher number! Crystal clear, right?

Coming to Terms With the System
On the first day of this unit, Prof. spoke about the fact that he always gets excited to teach about the guidelines, even though he doesn’t like them. After spending some quality time with them, I think I can see why. It’s a convoluted mess of a system that doesn’t always seem to be based in logic. Why is it that “more than minimal planning” is two points and bodily injury is three? Why is it that an assault with a victim that’s an official can be as much as six points? Those are just some examples of questions that crop up, and that’s not even touching the drug-related guidelines which are even more arbitrary (this is where the infamous 100:1 crack:powder cocaine ratio comes into play).

Yet, there’s a morbid elegance to calculating the guidelines. It’s like watching one of those jewel heist movies where the guy does flips and twists to get through the room with the moving lasers. He makes it all look simple and fluid, but the guy knows one mistake could cost him an appendage. It’s the same with the guidelines; knowledge and preparation are of supreme importance. Try and wing it and you may end up falling on your face and getting your client slapped with a much larger sentence than you might have originally thought. That’s where the excitement comes into play; at least, that’s where it does for me. As a prosecutor, knowing the guidelines inside and out may be the ticket to maximizing the sentence on a defendant who really deserves to go away for a long, long time. There’s also discretion that the prosecutor has; which offense to charge with, whether to add points for related circumstances and conduct, etc. It puts quite a bit of power into the hands of the prosecutor. It also creates a lot of room for advocacy on specific points; if the prosecutor isn’t prepared to advocate his/her position, the sentence could be significantly cut. Conversely, a defense attorney working in the federal system needs to know the guidelines well in order to effectively advise the defendant of the potential sentence that may be coming. Failure could produce pretty disastrous results.

Surprisingly enough, I had fun working through the exercises. I think that something in the complexity appealed to the backwards way my brain works. Instead of seeing a convoluted maze of traps and pitfalls, I saw it as somewhat of a treasure hunt. How can I maximize the sentence of Tony “The Toyota” McCriminal inside the system? The confusion became an opportunity that provided some thrilling moments. So, in my own way, I captured a bit of excitement regarding this convoluted system for myself.

Arbitrary, potentially unjust, and sometimes downright confusing, there’s not a lot going for the guidelines. But, while they’re still in place, we have to work within them, which means we must understand them. Even if they are only guidelines, and not actual rules.

Top 5: Movies I Saw in 2009

As 2009 drew to a close I started thinking about my favorite movies of this year. All in all I saw a total of eighteen movies that were released in 2009, seeing about half of those in the theater and half after they were released on DVD. All in all, I thought it was a decent year for the silver screen; the big-budget blockbusters were out in force and were a mixed bag as usual even if it was the year of the sequel. As I looked back on all of the movies that I saw during the year, I was surprised that I only saw 18, and there are several that I have yet to see. So, while my 2009 movie viewing wishlist is incomplete, I present you with the Top Five Movies That Were Made in 2009 That I Saw in 2009 list!

Note: My rankings are a product my own whim and subject to change. This list is based purely on my own subjective enjoyment of these particular movies and is not a reflection on the films’ artistic quality or pedigree. No animals were harmed during the making of this list.

5. Avatar
This one deserves a mention simply for the sheer scale of the film and the excellence of its visual effects. Avatar’s effects were so grand and were so prolific that the two visual effects juggernauts in the industry (ILM and Weta) both worked on it. While I’ve since learned that others have compared it to Dances With Wolves, in my post-screening conversation with the Mrs., I said that it was Fern Gully meets Dances With Wolves with Really Amazing Visual Effects. The plot itself was both pro-environment and anti-war with a dash of “We hate everything human” thrown in for good measure, but don’t let any of that get in the way of the amazing effects. They’re really that good. I saw this movie in 3D, and I was simply amazed at how the movie was brought to life by the technology. This wasn’t the gimmicky sort of “spear-gets-thrown-at-the-audience” type of 3D effects, it simply added depth and perspective to the movie. There is still work to be done on the technology, but for me, it really added life to the film. I don’t know that I would have appreciated the scale of the movie without it.

4. Zombieland
This one took me a bit by surprise. I saw it in November after a two-final day. I planned on seeing it alone, but JT, BLS’s resident Zombie Laureate, joined me about ten minutes in, making us the only two people in the theater. I knew I wanted to see it, but I didn’t realize how much fun it would actually be. The presentation of the movie creates numerous laugh-out-loud moments, the protagonist is endearing, it has quite possibly the best cameo of all time, and Woody Harrelson in top form as the Dale Earnhardt-loving redneck zombie slayer. The movie goes a little bit into the origins and motivations of each of the main characters, just enough to satisfy but not enough to get bogged down by too much “serious stuff.” This movie is all ghouls, guns, and gore; and it’s just plain fun.

3. Star Trek
The origin of Kirk and Spock on the big screen? Nerdgasm! In a year filled with sequels this is the only one that makes my list. It’s pure origin story with a Star Trek twist-alternate realities! J.J. Abrams and crew couldn’t be bogged down in the vast amounts of canon created by five television shows and ten movies, so they went back to the beginning, threw in some science stuff, and created an alternate reality where they could explore the foundations of Kirk and Spock’s friendship free of constraint. It worked on several levels: both my wife (non-fan) and I (definitely fan) loved the movie. The actors chosen for each role had enough similarities with their predecessors that each was believable but brought distinctiveness so that no one was just a wooden copy of the original. While Zachary Quinto gave an amazing turn as Spock, I felt that Karl Urban’s Bones absolutely stole the show. His opening scene is simply classic. While the movie does suffer from an over-abundance of lens flare, it gives the movie a raw quality that has been curiously absent from the entire series up to this point. All-in-all, it was a great reimagining of the series, and I can’t wait to see where they take the crew next.

2. Up
Easily Pixar’s most emotional film to date, Up tugs on the heartstrings early and often. I found my eyes misting over not ten minutes into the movie, a condition that was a frequent companion during the film’s 96 minutes. The movie speaks to love, loss, unfulfilled dreams, friendship, and talking dogs. The bond formed between the protagonist and the boy scout-esque “Wilderness Explorer” is both funny and touching, and the Dug absolutely steals the show the moment appears and says, “My name is Dug. I have just met you, and I love you.” It’s definitely the most mature-themed of the Pixar movies in that the reality of the protagonist’s loss is ever-present throughout the movie. We see him struggle with that loss and find solace in his adventure and new friends. It’s both heart-wrenching and warming, and well worth the price of admission.

1. District 9
The summer of 2009 sported enormous sci-fi blockbusters. We had Star Trek, Terminator: Salvation, and Transformers: Revenge of Michael Bay to name just a few. For all the hype of these big-named, big-budget films, a relatively unknown and underhyped movie stole the show: District 9. Produced by Peter Jackson and directed by Neill Blomkamp, the film takes a wholly different approach to the well-worn alien invasion set piece. District 9’s aliens don’t arrive en masse over New York, London, Paris, or Tokyo. They don’t appear as conquering invaders or saviors from above. Rather, they arrive over Johannesburg as refugees and are treated by the city’s residents as such, with obvious parallels to apartheid. The aliens don’t want earth’s natural resources, its water, or its humans for food; they just want to go home. The film succeeds in portraying the alien refugees as flawed which, I think, goes a long way in making them believable and sympathetic. It is not without its flaws and it does require some suspension of disbelief, which is to be expected (I mean, c’mon, it’s an alien invasion movie). But in the end, this movie stuck with me for several days after seeing it, which for me is the hallmark of a movie that truly engaged me. None other in 2009 did quite like District 9.

There you have it! Feel free to disagree with me, and I would love to hear your Top 5 of 2009!

Other Movies worth noting:
Biggest disappointment: Public Enemies
Surprisingly enjoyable: State of Play
Sad I missed it: The Hurt Locker
Most Inspiring: American Violet
Guilty Pleasure: G.I. Joe