Wayne Schoeneberg Online

2011-12-24T14:33:00.004-06:00

This is not the kind of post that probably belongs on the law office website. So I guess I will put it here. I may also post it on Speaking For Americans.

My wife assigned me the job of going to the grocery store to pick up some items for Christmas Eve dinner for the kids. When I pulled up on the parking lot I realized I was not the only one with that assignment. The parking lot was incredibly crowded.

When I went inside I was surprised at how many people were pushing grocery carts through the aisles on this Christmas Eve. I was surprised at how many couples there were. I was there alone. But the number of couples behind so many carts really added to the crowded conditions.

There were lines at the deli, at the fish counter, and at the meat counter. That is unusual. But I was glad for my local Dierbergs. I shop at the store in Warson Woods. it is a pretty good store. It is usually well-stocked, clean and I can get in and out quickly.

As I came toward the dairy aisle I noticed there was a glut of people standing at the end. I could not figure out what the jam was. One by one the people seemed to move forward. When I came around the corner, I noticed there were four men standing in front of the display case. Three of them wore Dierbergs aprons. They were obviously employees. I stood there for a minute and watched. I assumed they were solving some sort of problem.

Then I noticed they were talking to a fourth man who was dressed in regular clothes and did not have any employee indicia. The longer I watched it was clear that these men were simply having a nice visit. The problem is that they were taking up more than half the width of the aisle and that customers could not get through.

I kept standing there expecting them to get on their way. Finally, when they didn’t, I went up to them and in a nice way said that it didn’t look real good to the rest of the customers that these employees were standing around blocking the aisle. Especially on a day like today.

Apparently I offended them. One of them looked at me and told me that he was already clocked out. Another looked at me as though I should mind my own business. And I heard the third one ask as I walked away what I had said. I went back to my cart and stood there. As though in an act of defiance the men all stayed and talked for about another minute.

It did not bother me that these men were standing around, apparently on company time, just chatting. I don’t pay their salary. It really did not offend me that they were standing in the aisle and blocking it. I am sure it was just an oversight. I just wanted to point out to them that they were standing there in company garb and obstructing the customer flow. To me it seemed in bad form, especially today.

What will I do about it? Nothing more than write this blog. I will still shop there. I don’t remember the faces of any of the men involved. I just thought I’d tell you about it.

I Gotta Love You

2011-12-22T17:49:00.002-06:00

It has been about a year since I have posted anything on this site and yet it continues to get a lot of traffic. So to those who keep coming back to see what I have to write about, I thank you.

I have a new web site for my office and I hope that you will go to it and take a look. I blog there about things going on in my legal life. I do admit that i am a bit more restrained but lately I have been feeling the need to let go on some of the things I see happening in the legal community.

I also invite you to "Like" my law office Facebook page. I do post a few things there that you may find of value.

It is almost Christmas. I hope that you and your loved ones are together and that you are in good health. I will continue to blog, post and just generally raise hell whenever and wherever I can. Thanks for reading. Please visit the other sites if you have time and I would love to have your comments.

Merry Christmas

Can't Do That Much and Do It Well

2010-12-11T18:40:00.002-06:00

It is not my intention to get into a pissing match with any particular attorney over this. I just want to point out to you some of the ridiculous things that lawyers do.

When I first started practicing law we were not allowed to do any advertising. We got our business by word of mouth. If we did a good job then our clients would tell their friends and family members and we would get more clients that way.

That way is still the main source of my new clients. People for whom I have worked in the past tell their friends who need a lawyer to come to me. I try to keep that in mind on every case I handle. Not only do I want to do a good job on each case for my own personal satisfaction, I want to make sure that the client is happy with the result.

Now somewhere along the line the Supreme Court of the United States said that it was alright for lawyers to advertise. All hell broke loose. Lawyers ads are everywhere. I don’t quarrel with lawyers who advertise. It is a necessary component of the practice now. So, I advertise. I don’t do it a lot. But you could say that this blog is a form of advertising.

Okay, here is the point of this blog. Below is a list. This was taken from the web site of a lawyer in St. Charles County. He has one lawyer in his firm, him. He is rather young and inexperienced. I have met him. I am not impressed with him and I have not heard anybody signing his praises.

This list is what he claims are his areas of practice. WHAT? You have got to be kidding me. Can one lawyer actually have that much breadth of experience that he handles Adoptions and Aviation & Mass Transit Accidents? Does he even know what it takes, how much money and man hours are involved, in handling an aviation accident? Look at that list. I mean what doesn’t this one lawyer do? (Skip to the end of the list for more of my ranting and raving)

Family Law
Housing & Construction Defects
Adoption
Animal Bites
Assault & Battery
Aviation & Mass Transit Accidents
Business & Commercial Law
Business Organizations
Child Support
Civil Rights
Constitutional Law
Construction Law
Consumer Protection
Contracts
Criminal Law
Criminal Law -- Federal
Custody & Visitation
DUI DWI
Discrimination
Eminent Domain Land Use & Zoning
Lemon Law
Litigation & Appeals
Medical Malpractice Law
Motor Vehicle Accidents
Motor Vehicle Defects
Personal Injury
Premises Liability
Products Liability Law
Real Estate Law
Slander/Defamation/Libel
Social Security -- Disability
Toxic Substances
Traffic Violations
Transportation Law
Trusts
Wills
Workers' Compensation Law
Wrongful Death
Divorce

This is the kind of thing that gives lawyers bad names. Some unsuspecting person could see this website and actually believe this guy handles all of this stuff.

I have been doing Personal Injury work, Criminal cases, DWI case and traffic cases for over thirty years. I have to keep current on the law in every area I practice. I go to seminars about my areas of practice. I do not have the time to keep current in the law on what I would need to know to handle even a divorce or adoption, let alone Trusts and Wills and Eminent Domain. That is why I do not do them.

Wills and trusts can be complicated if done right. It is not for lawyers to dabble in. People’s assets are at risk. There are tax consequences if not done properly.

“Real Estate Law” ? What is that, anyway. Lawyers don’t handle closing any more in Missouri. So does he draft contracts? Real estate agents have been doing that for years.

Transportation Law? Barges? Trucks? What does that mean?

Land Use and Zoning? Let me tell you this. Zoning is a very complicated area of the law. In the St. Louis area there are a only a handful of lawyers who know how to do it well. Every smart lawyer I know who has a client with a zoning problem sends that client to one of those lawyers. Just like those lawyers send their Criminal cases or DWI cases to me. This guy is not on the list of those lawyers who can handle zoning matters properly.

It looks to be a desperate attempt to cover every possible area of the law to lure in some unsuspecting client who is not sophisticated in that particular area of the law.

Sorry, my friends, this kind of thing drives me up a wall. I had to vent about it. As I said, I am not going to mention his or her name. I just wanted you to see the kinds of things lawyers, unfortunately, do once they became allowed to advertise. It hurts the legal profession and makes all of us look like petty money grubbers, or as the term goes, “ambulance chasers.”

If this lawyer came to me for legal advice I would tell him that he may be opening himself up for a malpractice lawsuit himself. But I doubt he would listen to me.

For What It Is Worth

2010-11-26T12:35:00.003-06:00

Thanksgiving has come and gone. I am full. I spent the day with my wife’s family. Her father, a Navy veteran of WWII lives in Farmington, Missouri. He moved there to a small apartment after living in the VA home in Cape Girardeau for a while. It is a nice apartment but I think he would like to get back to the VA home. There is one in Warrensburg that interests him.

My father-in-law goes by Bud. He is an interesting guy. He spent his time in the service as a SeaBee. Now he is 84 years old. He spent the rest of his adult life as a home builder. Age has slowed down his body but not his enthusiasm.

I suppose I get reflective around this time of year. The holidays approach. As America continues to diversify it gets harder to remember all of the holidays. Being politically correct has never been one of my strong points. I respect the rights of all people. It is part of my professional responsibility and part of my personal makeup.

On the other hand, I am what I am. To me the “holidays” means Christmas. Entrepreneurs wrestled Christmas from the hands of the Christians years ago. Christmas may, in theory, be a religious holiday. But in the minds of most Americans, from Jews to Gentiles, Hindus to Muslims, it is the period of year when people spend a lot of money on things they would not normally buy.

Christians have the added element of celebrating the birth of Christ. Many Christians voice offense at the term “Xmas.” Some of them are sincere, some of them don’t even know why they are supposed to be offended. Greeting cards range from “Merry Christmas” to “Happy Holidays.”

So, whatever this season means to you, I hope that you enjoy it. With Thanksgiving officially behind us, the “holiday” season is officially upon us.

The law profession is, in many ways, a strange profession. That applies doubly to my part of the profession. As most of you know I handle mainly Personal Injury cases, DWI cases, Criminal cases and Traffic cases.

Think about this. That means for a person to be my client, some type of misfortune must have befallen that person. For example they, or a family member has to have been injured in an accident. It could be a car accident, an injury at work, or some other type of event that visits them unexpectedly and interferes with the day-to-day enjoyment of the simple tasks of everyday life.

Or perhaps they have made a bad decision or choice. It catches up with them in the way of a criminal charge, DWI, or even a traffic ticket. Now they find themselves charged with a crime. Maybe it is something as routine as speeding. Maybe that speeding event brought on a charge of driving while intoxicated or driving under the influence of drugs. That can happen with prescription or even over the counter drugs.

Perhaps a family argument escalates into shouting. One or the other feels physically threatened and calls the police. By the time the police arrive tempers are flaring and there are claims of pushing, shoving, slapping or choking. The police, rather than just let everybody calm down, arrest one of the people involved and now the spouse, significant other, mother or father sits in jail charged with a crime.

In my office I see people charged with everything from Trespassing to Murder. To paraphrase the man on the popular Pawn Star series, “You never know what’s going to walk through that door.”

So how does all of this rambling fit in here? I’m going to tell you right now.

Because of all of my great and wonderful clients, this has been a great year for my law office. We have had some great successes. I have had murder cases, drug cases and even serious assault cases dismissed. Clients facing life sentences, as well as lesser charges, have been acquitted. I have gotten some remarkable deals for clients on DWI and other cases. I would not have had the opportunity of enjoying those victories if it were not for the people in trouble who have asked for my help. Those people came to me and paid the fee I quoted for my services.

We are in some of the worst economic times we have been in for a long time. The holiday season is coming up. Money is tight. Frankly money is usually tight for most of my clients. So I looked around to see how I could help. Here is my solution.

From now until December 23, 2010 any person, old client or new client, who comes to my office charged with a Felony, Misdemeanor, DWI, Traffic Ticket or Municipal Ordinance violation (That means from Murder to Littering) can tell me what they think they can afford to pay for my services. If I can handle the case for that price, I will do it.

Now, I am not going to do it for free. If you think my services aren’t worth anything, why are you in my office, get it? But, if you come to see me on a case that I usually charge $1,000.00 for and you can’t afford that, tell me what you can afford and I may take your case for that amount. I don’t have to take it. (It may be financially impossible to handle a case for the amount you suggest. Ethics rules may prohibit me from taking on certain cases) But for the most part, I will let you tell me what the case is worth to you.

I don’t want to get into all of the details. It has to be a new case. You can’t bring me some case that some other lawyer has charged you a fee on already. I am not going to undercut some other lawyer.

You have to be prepared to pay the fee you suggest or at least show me that you have the reasonable means to pay it.

I may not accept your case for the same fee as I accept for a similar case. Each case is different and just because I take one person’s drug case for $500.00 doesn’t mean I will do them all for $500.00.

You will have to come in to the office to see me and discuss your case. I will not be able to handle these transactions on the phone for all sorts of reasons.

Now I am doing this because of the Holiday season and the poor economy. So that you understand, this is my way of giving back this year. This is my way of showing my appreciation to you for being my clients. Of course, I hope that none of my existing clients have to use this offer. To do so means that more misfortune has befallen you, and I do not wish that upon you. If you have been my client and paid my normal and customary fee this year, consider this as my way of giving back to the community on your behalf. I am doing this in your honor.

I wish you all the best of fortune and luck. I want all of you to prosper. I hope you will use this holiday season to pass along my best wishes to all of your friends and family members. I thank you for the trust and confidence you have shown me in the past.

I will end this offer at 4:00 p.m. (CST) on December 23, 2010.

Should We Teach the Bill of Rights?

2010-11-07T19:11:00.001-06:00

“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Amendment IV to the Constitution of the United States.

Now that doesn’t seem that complicated to me.

Unless the government can state particularly what thing they are looking for and swear that there is some probable cause why they think it will be where they say it is, they can’t search.

Why is it, then, that people come into my office on a regular basis charged with a crime that is a result of a warrantless search and seizure?

I hear the same story over and over again. “The police said if I don’t let them search they are going to get a warrant.” Okay, let them try. If they had the probable cause they needed they would already have the warrant. Make them get it. It doesn’t go against you at all. If you consent to the search you give up a very important right. And you give up the right to challenge the search in court.

That certainly applies if you have something you shouldn’t have. There is always a chance they can’t get the warrant and never have that piece of evidence they need to convict you. Even if you don’t think you have nothing to hide, unless they spell out exactly what it is they are searching for, they could discover something you didn’t even know you had.

Not long ago a young lady came in my office charged with possession of cocaine. She was pulled over for speeding. It was late at night. She looked a little nervous. The patrolman asked her if she “ ... had anything in the car she shouldn’t?”

Well how should she know what he meant by that? He didn’t know either. He was on a fishing expedition. He had no probable cause to believe she had anything illegal in the car. So, what did she do? She let him search. And, there in the passenger door pocket he found a vile of cocaine. There really wasn’t much in the vile. But there is no lower limit on cocaine. You can’t have any.

Our later investigation showed that a friend of the girl’s brother had left the vile there about a week before that when the brother was using the car. Of course, that is a hard sell to a prosecutor. She was in sole possession of the car at the time. She was the one they were charging.

If she had not consented to the search the patrolman would have had no authority to search and she would have driven away with only a traffic ticket. If he had searched anyway we could have challenged the search in court. Of course, she told him it wasn’t hers. He did not believe her.

Now you don’t think the brother’s friend was going to man up and day it was his, do you? No. So here she was charged with a felony.

The Constitution was put in place to protect the people from the government. It was done so because the founding fathers knew then that government was prone to abusing its authority. So they wanted to protect us.

In my opinion it is an indictment of our educational system that people come out of high school without knowing the Bill of Rights. Some educators act as though teaching kids about their rights to be free from searches, or to remain silent is teaching them how to game the system.

Kids are going to do some wrong things. Some kids are going to suddenly find themselves confronted by police officers whether or not they are doing something wrong. The least they can do is know their rights and exercise them. But if they never learn them, they are meaningless against police officers who are willing themselves to game the system.

Take a minute and tell your children about the Bill of Rights. Learn it yourself. Thousands of Americans have given their live supporting and defending the Constitution. It is a disservice to them to not know and appreciate what they were fighting for.

Guilty Pleasure

2010-11-04T21:07:00.003-05:00

This afternoon I was headed from the office to court in Clayton so I decided to take Interstate 64. Many of you still know it as 40-61. I had plenty of time so I got in the slow lane and put my cruise control on 60 mph. There I stayed.

Those of you familiar with that stretch of highway know that there are many places where an entrance lane suddenly appears to the right of the slow lane. Those lanes are for the cars getting on at any number of crossroads. More about them later.

Traffic was not rush-hour heavy. It was a little congested so that sometimes there was a line of cars to my left that were collectively going faster than I was, but still impeding those who were behind them from getting by.

I had not intended to make any phone calls so I had not put my earpiece in my ear. I was just listening to NPR chat on about what the elections meant to everyone. It is important to listen to commentators tell us what we already know. But, hey, I used to be in radio and I am all in favor of people having jobs, even as radio commentators, so I gladly listen.

Suddenly my phone rang. I turned down the radio and picked the phone up with my left hand and held it to my ear. It was the mother of a young man who had recently been horribly injured in an accident. She was calling with concern about his medical treatment and I listened to her, helping her through some of it as best I could while in the car.

I always check my mirrors when I drive. It is just a habit I developed many years ago. I scan from one side to the rear-view mirror to the other side. It was then that I noticed a car weaving through traffic and approaching from behind. I could tell that the operator was in a big hurry.

The car finally got right up behind me. I could see the driver was a young woman. The line of traffic in the lane to my left extended about five cars behind me. But I was in the slow lane. The driver made a couple of futile attempt to insert her car into the traffic lane to her left. She was unsuccessful at that. She began to flash her lights at me.

I am not sure if she wanted me to speed up or pull out of her way. I had no intention of doing either. I was in the “slow” lane. At that point I would have had to pull onto the shoulder to let her by. I was doing the speed limit. All of the cars to my left were going faster than I was. If she just dropped to the back of that line she would have passed me soon enough.

I continued to listen to this injured boy’s mother as I drove along. I did not pay much more attention to the car behind me until we got to one of those entrance lanes. Suddenly she veered to the right and pulled around me. When she got to about my front fender I saw her, holding a soda and the steering wheel with her right hand, turn almost all the way around in the driver’s seat and face me.

Her face was angry. She held her left hand in the “telephone” gesture up to her left cheek and mouthed the words “Get off the phone” at me. She then turned and sped off, once again weaving through the traffic.

I am not sure if she was angry because I was on the phone, or because she couldn’t get around me. Either way she was not having a good day. I continued on my way. The nice lady with whom I was speaking finished with her questions and I hung up the phone.

I have to tell you that I had a guilty pleasure as I rounded a curve a few miles up the road and saw the previous young girl stopped on the side of the highway courtesy of the Missouri State Highway Patrol. I know I shouldn’t. But I did.

But to assuage myself of that guilt I promise that if she calls me to handle her traffic ticket, I will take her call, even if I am in the car.

Oh, I'm sorry, the picture of the knee socks had nothing to do with the article. I just thought I'd use it anyway.

Don't Let the Facts Confuse You.

2010-10-27T09:54:00.005-05:00

Updating the blog can sometimes fall to the bottom of the list. This week it has. But I have a window of time today and thought I would bring it up to date, sort of.

I went to a seminar last week that dealt primarily with the updates on DWI laws and Court decisions. Lawyer have to attend a certain amount of Continuing Legal Education seminars each year. In each of those years we have to complete a certain number of Ethics credit hours.

These credit hours are usually jammed in with some other seminar. Thus, this particular seminar had a segment devoted to computers and ethics. Most of the segment was devoted to online social activity.

With the advent of Facebook, Twitter, MySpace and other social media networking there seems to be a problem with lawyers posting some pretty stupid things on the Internet. I have no intention of embarrassing the profession by revealing those to you in this blog. However, some of them are really stupid.

On occasion you might read something here about a case I have handled. You should keep in mind that I am not ever going to disclose anything on this website or any other social media that is not public record. In other words, if you read it here it has already been in some newspaper, on television or in a public document in the courthouse.

Sometimes I talk to you about cases. Please understand that I always change the names of the people involved. In order to further protect my client’s privacy, and I feel the need now to disclose this to you, I also change the jurisdiction (County) of the case and do not truthfully report to you the accurate timeline of the case.

In other words, to protect privacy and confidentiality I have to twist the date, time and place of the case around and change the names so that a casual reader is unable to identify the real people involved.

To make this even more confusing for you, sometimes my clients authorized me to disclose the details of their case. Sometimes they want their case publicized. In that case, I may use the actual specific facts, names, dates and locations. The purpose of sharing any case information with you is to make you a better informed citizen, not to gossip about my client’s cases. You don’t need to know the actual names, dates or places to get the point as to how these situations affect your life. I hope you all can appreciate that.

Is all of this confusing enough for you? This is all as a result of attending that seminar about ethics and computers. The seminar lasted all day. It was Harrah’s casino in Maryland Heights. It was a very informative seminar.

Recently I appeared in Federal Court. I represented a client who was charged with, and pled guilty to, stealing around $17,000 from her employer. I was able to mount a very successful defense for this lady in spite of her guilty plea and she was granted probation. A condition of her probation is that she repay the money she stole. Not bad!

I was supposed to have depositions yesterday morning on a murder case but at the last minute someone from the Prosecutor’s office called to tell me that the prosecuting attorney responsible for the case was ill and would not be available. That sort of threw off my schedule.

My appointment calendar was filled last week with court appearances and appointments for new cases. The court appearances ran the gamut from municipal night court to preliminary hearings on some serious felonies. The appointments, interestingly enough, were mostly for DWI cases. I see a steady stream of people who have been charged with driving under the influence of alcohol. I would think that the bad economy would find fewer people out on the roads. That is not evident based on the people who are finding their way to my office.

There is an interesting website I want to recommend to you. It is called Speaking For Americans. A lot of interesting articles from a number of different contributors. I recommend that you become a contributor. It is free. You can register anonymously if you want. I am sure there are some things about which you feel strongly. Get it off your chest.

I am looking for ideas as to how to improve the law firm’s website. What things would you like to see on a law firm website? If you have any thoughts, please let me know.

Time to get back to work. Speaking of work, I have also seen an increase in the number of people I have spoken with regarding workers compensation cases. No matter how careful you try to be, sometimes the unthinkable happens and you get injured on the job. If that happens to you, a friend or family member I can help you. Just call Katie at 636-486-4861 and ask her to set up an appointment with me. I am sure I’ll be able to get you on the right path for you.

Try to Relax

2010-10-19T14:42:00.001-05:00

As a trial lawyer I spend a lot of time in Court. It is not a trial everyday. Instead many days are spent just making pre-trial appearances while the case winds its way through the court system. For instance, this afternoon I will appear on two traffic matters. My actual time in the courtroom will be, if I am lucky, about five minutes. My time in front of the judge will be nil. I will walk in, go to the clerk, tell her we need a new date because this is the first appearance and we don’t even have the police reports. She will look at the wall calendar, select a date in the future, ask me if it is a good date for me and if I have that date available she will mark it on her calendar and I on mine. I’ll be done.

This morning I am off to a different start. Although I have a preliminary hearing scheduled this morning at 10:30 I get to start my morning off meeting with a young man who is a web site developer, maintainer, fixer and changer. I have no idea what his official professional designation is. I call him a web site guru. He is probably tired of that moniker. My guess is that the phrase is one that dates me as a man of a certain age.

This morning we chose to meet at Shaw’s Coffee on The HIll. It is on the corner of Shaw and Marconi. The Hill is a unique place in St. Louis. It is a small picture of Italian culture. It is filled with Italian restaurants, markets and shops. Vivianos Grocery is right next door and I will make a visit there before I leave today.

I thought my meeting was at eight this morning. Apparently it is at nine. I have a habit of being early so I am sure this is my bad. I am using the time well. I am just sitting and watching and listening. Two ladies sat down at the table next to me. I have not heard, not do I want to hear, most of their conversation. But I did hear one excitedly announce that she was going to be meeting with St. Charles Mayor Patti York. Quite a coincidence, I thought, being from St. Charles County and all.

They are involved in some project that will also have them meeting with the press. I should look at them and remember their faces.

The traffic here is surprising. It shouldn’t be. The place has a lot more character than a Starbucks and the prices are better. I had an Americano and a biscotti, chocolate of course. It was under five dollars.

There is a mix of business people, what appear to be students and those who seem familiar enough to be locals. Sitting right outside on the patio is a young man in a striped T-shirt, beads around his neck and tattoos everywhere. A young lady sits nearby hunched over her laptop like a mad scientist looking at an experiment. Just as I write that a man much her senior, and with whom she is not familiar comes up and introduces himself. She is obviously expecting him. They sit and a meeting starts in earnest without even ordering a coffee. He wears a St. Louis Police Department lanyard. A detective, maybe?

She begins speaking in a loud, animated voice. It appears he has handed her a photo lineup. She studies it for a moment and then makes some marks. He retrieves it without saying anything and puts it in his folder. Correct police procedure, I might add.
Well that brings me back to my schedule. It is time to go to court for my preliminary hearing. There are little times like these that present themselves for all of us to enjoy. It is up to us to recognize them and then take advantage, even if you are a lawyer. Hope you find yours today.

Exiled From Main Street

2010-10-18T19:56:00.003-05:00

If you are a regular reader of this blog you already know how I feel about judges interfering with plea bargains. So let me tell you about a recent visit to the St. Charles Municipal Court.

Before I begin I need to tell you that I consider the judge at this court to be a good and honorable lawyer. I have had dealings with him in the past. He has been an opponent in some cases. He is smart, well prepared and courteous. Let me go on.

It was a Thursday night. I was standing in line with three other lawyers waiting to have our cases heard. The judge came in and court was opened by the bailiff. The first lawyer in line approached the bench with his client. I was not paying a great deal of attention. It was the assumption that some plea bargain had been made with the prosecutor and this would be the culmination of the case.

The judge, as judges do, asked the defendant what happened. The defendant went on to explain that he was involved in a fracas on Main Street in St. Charles. At the mention of Main Street the judge sat up straighter in his chair and raised his eyebrows. Without any warning he announced that he had been thinking about imposing a fine of $500 on all of the offenses that took place on Main Street because things were getting out of hand there. He then went on to tell this defendant and his lawyer that he was not going to honor the plea bargain.

Without warning, he instantly imposed the policy he had been thinking about imposing and imposed it, if you will, retroactively. He announced that he was not going to follow the plea offer and that the lawyer should go talk to the prosecutor.

If there are any judges reading this blog let me set this out for you in clear terms so that you understand. That is a slap in the face of a lawyer standing before you representing the defendant. It is an embarrassment. It is humiliating. It puts everybody in a difficult circumstance. I guess it doesn't put the judge in a difficult circumstance. But it puts everybody else in a difficult circumstance.

I know my reaction must have been evident. When it became my turn to stand in front of the judge he noted my reaction. He asked me, sincerely I believe, if I had something to say about it. He was not being confrontational. I don't believe that to be the case. However, I did not say anything at the time because I did not want to adversely influence the outcome of my client's case.

The next day I called the judge. Although it did not talk to him personally I left a voicemail message telling him what I thought. I also told him it would not be necessary to return the call. I just wanted to share my thoughts with him.

Once again, I have never seen a judge refuse to go along with the plea bargain because the judge thought it was too hard on the defendant. They always seem to object to the plea bargain because they think the defendant is not being punished enough. Of course, it is their courtroom and they can believe what they want.

For the lawyers reading this blog, and also for those who visit Main Street in St. Charles, be warned! The judge in St. Charles Municipal Court has announced that there will be a $500 fine for incidents on Main Street.

I don't want to get into the issue as to whether or not that means every case on Main Street is going to end up with a fine of $500. Does that mean that there will be no individual consideration of each individual case? The city Council has set a range of punishment on these infractions. One would think that the court would approach these with an open mind and punish the egregious cases more severely than the minor cases.

I don't know what will come of this for most lawyers who appear in front of this judge with clients who have engaged in illegal conduct on Main Street in St. Charles. I do know how I will deal with it.

What'd He Say?

2010-10-12T07:18:00.002-05:00

Last night I had to appear in Municipal Court. Municipal courts are really different from one another. Some are held in little buildings that used to be houses in the community. Others are held in large edifices much too grand for what they really house.

Municipal judges vary, too. Some take their job seriously. Some just show up for the paycheck.

Last night I was in front of the municipal judge who I have known for many years. He is a little younger than I. It was curious to look at him last night and notice that his age was beginning to show. It made me stop and think about my own age.

This particular judge takes his job very seriously. He demonstrates the appropriate decorum for the public. At the same time, he knows how to treat lawyers that appear before him. Although his court use one of the busiest in the area, it is one of the best run.

However, last night, this judge did one of those things that I disagree with. I don’t think it is wrong. I just think it is wasted.

My client was a young lady, 18 years old, who had a DWI. She had been at a party with her friends, had a few beers, and decided she needed to go to Taco Bell. So she drove down the street to the nearest Taco Bell, was weaviing while she drove, and got stopped. The officer gave her the standard field sobriety tests and she failed. She took a breath test and blew well over the legal limit.She also had a little marijuana in her car and the officer cited her for possession of marijuana in Municipal Court.

After a little negotiation the prosecutor agreed to recommend a suspended imposition of sentence, probation, SATOP and the ever present Victim Impact Panel. The marijuana possession was amended to littering (the favorite of all municipal prosecutors) and she paid a fine on that.

Even before my client came forward the judge noticed that she was only 18 years old. He asked me if her parents were with her. Just by chance this young lady was there with her mother. Why an 18-year-old would be expected to bring her parents is beyond me. An 18-year-old is an adult. But this seemed to get the ball rolling for my friend, the judge.

The next thing I knew he had the defendant and her mother up at the bench. He launched into a long diatribe about the evils of drinking and driving. He went on and on about how he was putting it this girl on probation and how he doubted she was going to successfully complete the probation. He told her about how he would put her in jail for 30 days if she violated the probation.

I mean all that is fair. Probation is a gift. The judge doesn’t have to put her on probation. And, sure, if she violates probation she is a fool. But I don’t think that a person that age standing there with her mother, in front of that Judge, or any judge, heard anything he had to say.

Clearly she was scared. Clearly she heard the words. She was trembling so badly that I am sure she forgot everything he said within minutes after walking away.

There are a couple of judges who feel the need to give long lectures to young people who stand before them at sentencing. I think these judges forget what it was like to be young. First of all I think most of these young people look at judges as old, irrelevant people who really don’t know what life is like today. In a lot of respects they are right. But the judges feel they are imparting great words of wisdom. They aren’t.

Oh, by the way, I didn’t mention to the judge, and he didn’t ask, but my client is already on probation for possession of marijuana in another county. The judge who put her on probation for the possession of marijuana gave her a similar speech. I don’t think she heard him, either.

Doing The Right Thing

2010-09-26T13:31:00.003-05:00

Last week I had the opportunity to try the case in Lafayette County, Missouri. Lexington is the county seat.

I had not been to Lexington, Missouri for quite a few years. The last time I was there I was representing the brother of my current client.

My client’s family is a family that is not held in the highest repute by the Lafayette County’s prosecuting attorney’s office. Frequently in rural counties there are families who just draw negative attention from law enforcement. This is one of those families.

My client was charged with two counts of Financial Exploitation of the Elderly and one count of Financial Exploitation of the Disabled. Of course, that sounds just horrible. How could anybody do that? Well, the jury decided that he didn’t. He was found not guilty on all three counts.

I don’t think the prosecuting attorney ever understood what her case was about. My client was part of a work crew. The man who ran the work crew was the salesman. They would take their equipment and travel the rural roads offering to do a chip and seal finish on driveways.

On these three occasions they went to the “alleged victims” homes. The man running the workgroup would talk to the homeowner. He would offer to chip and seal the driveway. They would negotiate a price. Before one penny was paid they would complete the work. After the work was completed the home owner was allowed to review and inspect the work. Only if he or she was satisfied with the job would the money be paid. In each case that is what happened.

In each of these cases the homeowners then got buyer’s remorse. Within a few days of paying the money the homeowners decided they did not like the job. What did they do? Well the first thing they did was call the man who sold him the job. He had given the homeowners his actual name, business card and telephone number. He had told them that if they did not like the job or had any complaints he would come back and make it right.

Apparently he did not get back to these particular homeowners as quickly as they would like. In one case a full 24 hours had not passed before the homeowners called the police. The police came out and started an investigation. Because my client works on driveway paving projects they were led to him.

Not one of the homeowners claimed that my client had any conversations with them about price or quality of the job. There is no question he was there. One of the “alleged victims” even if said that he was a hard worker. He ran a bobcat, spread oil on the driveway, help lay and tamp the chat that went on top of the oil seemed to know what he was doing. One of the homeowners did say that she had a direct conversation with him. When the work was done, he came to the door and asked if he could have a soda. She gave him a soda and he replied, “Thank you.” That was the extent of the conversation.

Because of his family’s reputation in the community he was charged. You should understand that the statutory definition of “elderly” is a person over the age of 60. That’s it! If you are over the age of 60 the state legislature feels that you are so incompetent that you are entitled to special treatment. A disabled person is defined as follows: "Disabled person", a person with a mental, physical, or developmental disability that substantially impairs the person's ability to provide adequately for the person's care or protection. You can read the entire statute at http://www.moga.mo.gov/statutes/C500-599/5700000145.HTM

The particular person that they were claiming is disabled was a 57-year-old lady with a mild form of muscular dystrophy. She had a drivers license, bank account, was able to drive, able to cook, able to take care of herself and able to take care of her husband. The State would have preferred that she was over 60 because they looked absolutely ridiculous trying to show that her condition “substantially” impaired her ability to provide adequately for her care or protection.

I can’t close this article without commenting favorably upon the judge in the case. It was refreshing to have a judge who actually listens to the arguments made by defense counsel. I thought we were treated very fairly during the trial. I did not agree with every ruling made by the judge. However, I don’t expect that to ever happen.

The trial lasted about a day and a half. The jury was out about 2 1/2 hours. They found my client not guilty on all three counts. Interestingly enough, there is another almost identical charge pending against my client that the prosecutor filed before this case went to trial.

Depositions in that case are scheduled this week. I can’t wait to attend!

Buyer Beware

2010-09-18T09:47:00.003-05:00

I am mindful of the fact that there are lawyers who read this blog. This is for them.

Be careful of the new Missouri Supreme Court Publications site. I was sitting here this morning, at home, preparing for trial and realized that I needed a copy of my MAI-CR. It didn't make much sense to drive the 35 miles from the house out of the office, pick up the books and then drive 35 miles back when I could just go to the Missouri Supreme Court Publications site and buy the full set of MAI-CR online.

That way, I could always have the most current version at my fingertips.

I was given a number of options. I could pay by credit card or have them send me an e-mail invoice. I considered paying by credit card. The payment page warns that there will be a “credit card user fee” or some such thing if I chose to pay by credit card.

It seemed cleaner, from a bookkeeping standpoint, to have an invoice and simply write a check to Supreme Court Publications. So I chose to have them e-mail me an invoice. That having been done I went back to the page to log on to the MAI-CR end to get to work.

Well, it doesn't work that way. I subsequently, yes after I placed the order, got an e-mail saying that I wouldn't be able to use the service until the invoice was paid in full! Well great. This trial will be over by the time the check gets to Jefferson City.

Want something instantly? Apparently it isn't going to happen on the Missouri Supreme Court Publications website.

Got to go. Have to drive out to the office.

Independent Judiciary?

2010-09-05T13:12:00.001-05:00

Recently one of my readers sent me a long, thoughtful question regarding the role of the judiciary in our court system. As he pointed out the judiciary is supposed to be a branch of the government that is separate, but equal.

The Legislature passes the laws. The executive branch enforces the laws. The judicial branch interprets the laws. Of course at the trial level there is very little interpretation going on. Trial judges are supposed to enforce the law as it has already been interpreted by the appellate courts. The trial judges of the judiciary branch preside over the day-to-day operation of the courts.

They handle motions, pretrial rulings on evidence, and they preside at hearings and trials. It is a very important job. It is a job where impartiality and judicial independence is very important. Citizens come in contact with trial judges. Although decisions made by trial judges do not generally have a broad impact, they almost always have a direct impact on the life, freedom or well-being of a citizen.

Whenever I handle a criminal case in the Federal courts, I am always impressed with the attitude and demeanor of the judges. All of the cases start out before a Magistrate judge. That judge presides over the initial arraignment, any pretrial motions and hearings or any other informal matters that are necessary to resolve prior to the case going to the District Court Judge.

The proceedings in Federal Court are much more formal than in most State courts. At the same time they are much more efficient. By comparison, though, I always feel that the judges in Federal Court demonstrate clearly that their role is to stand between the Government and the defendant as a neutral official whose job it is to make sure that the defendant’s rights are protected. I do not get the same feeling in a lot of State courts. Sadly, more times than not, I leave the State court proceeding with the impression that the judge feels he or she is on the prosecution team.

Part of that may be as a result of the way we select trial judges. In the Federal system even trial judges are nominated by the President of the United States and confirmed by the Senate. They are appointed for life. That gives them a certain independence. As long as they commit no high crimes or misdemeanors during the term of their office they can stay on the bench until death.

In Missouri we elect most of our trial judges. There are a few counties in which they are appointed. However, in rural counties judges run for election. In my opinion, that causes some problems. Although I know many judges, I consider only a few to be social friends. Those judges are more likely to be candid with me when they are not on the bench. And those judges will admit that it is hard to ignore the consequences some of their actions may have with the electorate. However, those same judges are more likely to make a decision that is unpopular if it is the right decision.

I have long preached for judges staying out of the plea bargain situation. That has little to do with judicial independence. That has to do with my feeling that when the prosecuting attorney and defense lawyer come to the judge with a plea bargain they have worked carefully to structure that bargain. It is usually based on, among other things, the strengths and weaknesses of the particular case. There are facts that the lawyers know that the judges don’t. Because of that, I think that judges should accept that plea bargain without getting involved. Why would they get involved? Well, I have had judges tell me that they are worried about what voters would say about them if the defendant got in some further trouble.

What really irks me is that I have seen a number of circumstances where judges reject a plea bargain. However, I have never seen them rejected because they thought it was too hard on a defendant. Universally, I have seen the bargain rejected because they think it is too easy on the defendant. What’s that all about?

I clearly do not think that judges should should rubber stamp every situation that comes before them. More importantly I don’t think they should rubber stamp everything the prosecutor puts in front of them. Unfortunately more judges are willing to accept what the prosecutor says without hesitation than what a defense lawyer recommends. That is wrong.

I understand why judges want to be reelected. They have one of the best jobs in the law profession. They make a decent wage, they have nice working conditions, they have a good retirement plan and if they have a health package. Once they get the job, all they have to do is keep it.

Sadly, the best way to do that is to be known as a “law and order” Judge or a “hanging” Judge. The facts are that people in law enforcement are more likely to vote than those who end up as criminal defendants. Since most lay people do not understand the judicial system it doesn’t do a judge much good with the electorate by trying to be independent and enforce the Bill of Rights. Most people who have never been involved in the criminal justice system don’t think that “criminals” should have any rights at all. Most people see the Bill of Rights as a document that is individually directed to their rights, not to “those” people.

So my reader wonders how separate the judiciary really is? I am afraid it is not as independent as it should be. One of the great pejorative terms used to condemn a judge is that he is an “activist judge.” What that usually means is that the judge has made a decision that irks the person being critical.

The course of in my life there have been independent judges. The civil rights movement was dependent upon independent judges. We would still have segregated schools if it were not for them.

As a practical matter the only people who see firsthand what a judge does or doesn’t do on a regular basis are the lawyers. Lawyers are fairly spineless group of people. It is hard to find one who will run against a sitting judge. And since that is the only universe of potential opponents judges can pretty well get away with anything they like once they take the bench.

Independent judiciary? Yes, on paper. In practice, seldom. At one point in my long career I thought this might change. I am past that believing that. I still do not accept it.

A Tale of Two Bails

2010-09-02T09:02:00.002-05:00

This could be called the Tale of Two Cities, or the Tale of Two Counties, or even the Tale of Two Judges. Instead, I choose to call it the Tale of Two Bails.

As most of you know I practice law all over the State of Missouri. One day I may be in Lafayette County, the next day and Howell County and then back to St. Charles County. Because of that I am exposed to a wide range of judicial philosophies.

In rural Missouri we elect our judges. It really isn’t a bad way to do it. However, in some counties judges are prone to lack enough backbone to vigorously support the Bill of Rights. They think that granting bail to somebody is dangerous because the voters might not like it.

I agree that elected officials should reflect the wishes of the electorate. I also think that judges fall into a separate category. Judges should not go around pandering to the electorate. If that were part of their obligation we would just let them step aside and we would have a good old-fashioned lynch mob.

So let me tell you the tale of two bails.

In a recent case I was representing a man who was charged with murder in the second degree, or in the alternative, involuntary manslaughter. He was a young man who had never been in trouble before. He has been in jail for quite a few months. His family has been unable to raise bond money.

We filed a motion requesting he be released on a lower bond. He had family in the area, he was from the area, he had a job before he was arrested and there is no reason to believe that he would flee before trial.

We had a hearing on the Motion. At that hearing the defendant’s mother testified and the mother of the person who was killed testified. Both were in favor of reducing the defendant’s bond and allowing him to be released before trial. Seems like a no-brainer, right?

The judge denied the Motion. It really seemed the judge didn’t even listen to the evidence. In giving the ruling the judge seemed more interested in the fact that the defendant’s mother wore a T-shirt that the judge found objectionable, than anything else. That’s right, there was a slogan on the front of the defendant’s mother’s T-shirt that caught the attention of the judge and the judge went so far to mention that in making a ruling.

Now the slogan on the T-shirt was not profane or in-your-face. It was a cute slogan that a large charity had used to sell the T-shirts in a fund-raising effort. I have seen them before. I admit I haven’t seen one in court before. Do I wish the woman hadn’t worn the T-shirt? Yes. Do I think the judge should have let that have any impact on the ruling? No.

So this young man sits in jail awaiting his trial. He has lost his job, his family is suffering, he has not been convicted of anything, and yet the bond is denied to him. No bail, stay in jail.

Let me tell you another story. In a different county, far, far, away, I represent another man who is charged with forcible rape. He is in jail awaiting trial. Well, he was in jail awaiting trial. He is now free on bond.

My client in this particular county was accused of forcibly raping a woman at gunpoint. He had previously been in prison for child molesting. Oh, that was his second trip to prison. His first trip to prison was for burglary. He was finally paroled on the child molesting charge and that is when he picked up his new charge of forcible rape.

Under those circumstances we did not even consider filing a motion for bond reduction. It just did not occur to him or to me that a judge would consider reducing his bond and letting them post bail on these charges. We talked about it. He was willing to sit in jail awaiting trial. I will tell you that the charges against him are very weak. There is very little evidence that he committed this forcible rape. But that will be determined at trial. It will be determined the same way the murder trial is determined; at trial. The eventual guilt or innocence, in my opinion, of the defendant should not weigh on the ultimate issue of a reasonable bail.

Suddenly my client in the forcible rape case developed a fairly serious health problem. The local jail took him to the hospital. The hospital said that he needed surgery. The prosecuting attorney called me. He asked me if I was going to file a motion for a medical furlough for my client. He explained that if I filed a motion for medical furlough, my client could be released on his own recognizance (that means he does not have to put up any money at all for bail) so that he could get his medical treatment and the county would not have to pay for it. Whoa!

I called my client. We talked about this. He thought it was a good idea. Who wouldn’t?

Now, make no mistake this man does have a serious medical condition. It affects his heart. He is going to have to have surgery. So on the appointed day we appear before the Court for our Motion for Medical Furlough. The Judge listened to me and the Prosecuting Attorney explain to him that the defendant had this condition and needed treatment.

He did not require medical records, testimony from doctors, x-rays, reports, records, or anything else other than the representation by two officers of the court (I’m talking about me and the prosecutor) that this man needed treatment. Based on that representation he entered an order releasing the man from jail pending trial so that he could get medical treatment.

This is what any good judge would do. This is what a judge who has confidence in his rulings would do. This is what a judge who understands the Bill of Rights and the justice system would do. I cannot imagine getting this ruling in the other county. I can certainly not imagine getting this ruling from the judge in the murder case under any circumstances.

I’ve said it before, I will say it again, there are judges who do not fully appreciate their role of impartiality in the system. There are judges who talk about the “victims” before they have ever heard one word of evidence in a trial. There are no victims until a defendant is convicted. Until then there are only “alleged victims.”

In every trial the judge reads instructions to the jury about the defendant being presumed innocent. I don’t know how some judges can read that instruction and never hear it.

Liar, Liar

2010-08-25T09:33:00.004-05:00

Alright, I thought by this morning my anger would pass. I have been doing this for over 35 years. I should not be surprised when a police officer lies under oath. Yet, it still shocks and offends me when it happens.

I had to try a case yesterday in east central Missouri. I have never handled the case in this county. I don’t know any of the local players. This was going to be a bench tried case. For those of you who don’t know, that means there is no jury, only a judge.

One of the issues in the case was who was actually driving the cars involved in this collision. Two cars collided at an intersection. It happened in a rural setting. It took the Highway Patrol 35 minutes to get to the scene of the collision. When they got there there were no drivers in the vehicles.

My client was charged with careless and imprudent driving by failure to yield. For reasons that are entirely too complicated to go into, my client was unable to enter into a plea bargain. His injuries were so severe that he has no recollection at all of even being in the collision. Interestingly enough, the other person has no recollection of even being in the collision. We have two people in a collision and neither of them can remember what happened.

So we decided that the best way to resolve the issue was to have a bench trial. It did not occur to me before the trial that the State would not recognize the problem of placing the drivers and vehicles. But apparently that never crossed their mind. I believe everybody just assumed that identifying the drivers would not be an issue. However, at a minimum there had to be some testimony putting my client behind the wheel of one of the cars. It became evident when they put the Highway Patrolman on the stand That no one on the prosecution side had thought about that.

I think the judge could have gone either way on that issue. Do I think they proved beyond a reasonable doubt that my client was driving? No. However, I am an involved advocate. The judge, who has taken an oath to uphold the law, believed beyond a reasonable doubt that my client was driving one of the vehicles.

You see when the paramedics arrived they did have to take the other man from his vehicle. However, my client was sitting on the curb. Now had the State brought in the paramedics they could have testified that these were the only people present when they arrived and is shown with a little more certainty that my client was driving. Although no one could affirmatively put him behind the wheel, they could have ruled out with more certainty that someone else might have been driving. I mean, theoretically, another person could have been there and left. That person could have been driving one of the vehicles. It is the obligation of the State to come forth with the evidence. As I said, I think they missed the burden on this point. The judge disagreed with me.

So when this particular Highway Patrolman was on the stand and started to testify that my client was the driver I objected. I pointed out to the court that the Highway Patrolman did not know that. The judge, in one of those little tricks that judges play, said that he would allow the Highway Patrolman to testify about that, not for the truth of the matter but to explain why he took certain actions.

Someday I will write an entire article on that kind of crap. Sometimes it seems like the judge and the police officer and the prosecutor are all on the same team. The judge should not be on anybody’s team. The police officer should simply be an accurate reporter of the facts. The prosecuting attorney should be the advocate. Many times it just doesn’t work out that way.

In any event, once the judge gave the Highway Patrolman a free rein to testify the Highway Patrolman started to wax eloquent about what happened out there.

In other words, when the pressure was on, when he saw that he was not going to be able to definitely show that my client was the driver of the vehicle he had a choice to make. Would he lose on that point or would he lie? He lied!

First he said that the paramedics had told him that my client was the driver. Then he said that the paramedics had told him that they had extricated the drivers from the cars. Both of those statements were lies.

There was an ambulance report in existence that showed that my client was sitting on the curb when the paramedics arrived. Clearly he wasn’t extricated from the car by the paramedics. Clearly the paramedics would not have said he was driving because they did not know. Even if the paramedics had said he was driving the Highway Patrolman should have noted that in his report. He did not. This officer simply worked on the assumption that my client was driving the car. He did no investigation at all to confirm that. He realized that as he sat on the witness stand. And then he made a choice that tells what kind of man he is.

I will never forget the name of this Highway Patrolman. Every time I see his name on the ticket or a police report I will wonder whether it is the truth or the truth as this Highway Patrolman wants it to be. This man has done a disservice to the Missouri State Highway Patrol.

Police officers are supposed to be scrupulously honest reporters of the facts as they exist. They are supposed to come to court and relay the facts. They are not supposed to be advocates. They are supposed to be reporters. This officer crossed the line. He lost focus as to what he was supposed to be doing. He disgraced himself. He disgraced the Missouri State Highway Patrol. He spit in the face of the justice system.

I have seen this happen over and over again. One would think that after 35 years of watching police officers lie under oath that would be used to it. I hope that never happens.

Keep Your Mouth Shut

2010-08-22T19:24:00.000-05:00

This is Sunday evening. I’m looking at my schedule for next week and reviewing the events of last week. It was a busy week. It was not only busy for me.

The Federal government indicted Roger Clemens for lying to Congress. I think everybody is sorry to see that happen for a lot of reasons. Roger Clemens was a great baseball player. While accounts he seems to be a pretty nice person. He claims he never used steroids. I understand that perjury is perjury but it should only be a crime to lie to Congress when Congress stops lying to us.

A few years ago we started a witch-hunt in major league baseball about steroid use. One or two players decided to “out” other players. I am not sure what their motivation was.

I don’t know how I feel about steroid use. I know why athletes do it. As far as the adult, professional athletes I don’t object to them abusing their bodies that way if they want to. However, it puts pressure on other athletes who may not want to use steroids. In order to compete and make the millions of dollars that professional athletes make they may be forced into steroid use just to keep up.

If Roger Clemens lied to Congress, shame on him. Not shame on him because he lied to Congress. Shame on him for being so stupid. Every time I talk to a client who is considering making a statement to any Federal investigator the first thing I stress is that he or she must tell the truth under any circumstances. Once they make the decision to talk, the truth is the only way to go. I don’t know that I recommend everybody talk to the Federal government. We have a right to remain silent. I think we should use that more often.

I’m sure the Roger Clemens case will drag on for a long time. How long ago was it that Barry Bonds was indicted? He still hasn’t come to trial.

Speaking of cases that never seem to go away there is the case of the former Illinois Governor Rob Blagojevich. I, along with many others, was surprised by the verdict. I was surprised that he was not acquitted of all of the charges. Of course the only count he was convicted of was “lying to the Federal government.” So, there you go! If they can’t convict you of the actual crime they get you for lying about it. What is the lesson? Exercise your right to remain silent.

I am representing any number of people right now who would unquestionably not even be charged with a crime if they had just asked for an attorney minute the police started asking questions. But for some reason, a reason I will never understand, people think they can talk their way out of bad situations. They can’t. So what you have in the Blagojevich case is a man who would probably be walking free today if he would have just kept his mouth shut.

I don’t think there is any chance that Rob Blagojevich is ever going to keep his mouth shut. He is just too stupid to do that.

This really didn’t start out to be a lecture about the Fifth Amendment. But maybe it should be. It seems that Americans now really don’t appreciate the Bill of Rights. There seems to be this odd trust of the government on one hand and distrust of the government on the other. People run around and holler about high taxes but don’t think about their individual rights.

I am sincerely concerned about the future of this country. I will give you an interesting insight. The people I deal with who are most aware of our individual rights are those who have come here from other countries. I am not talking about illegal immigrants. I’m talking about legal immigrants. I’m talking about those who have waited and waited to be admitted to this country and who have become citizens. Those people know and understand the importance of the Bill of Rights. Too often, people who have been here all their lives, and who come from generations of Americans, are ignorant of the rights granted to them by the Constitution. All they want to holler about is high taxes.

Okay, I’m done for today. I hope you get something good out of this. This is going to be a busy week. I have a lot of court appearances and a lot of contested hearings. All I can hope for is that the judges before whom I will appear have the same respect for the Bill of Rights as a newly sworn-in immigrant American citizen.

Truthful Sentencing

2010-08-17T20:26:00.001-05:00

There was a news story today about the Three Strikes law in California. You might remember this law. It provides that if a person is convicted of a third felony the minimum sentence is 25 years to life. About 15 years ago a man with two previous nonviolent crimes was convicted of a burglary for breaking into a food pantry to steal something to eat.The man got the sentence that was required by law.

At that particular time most people were in agreement with that sentence. After all, this guy had had two opportunities before that. He committed another felony. He should go to jail for at least 25 years.

The news story today was that a judge let him out of jail. This judge said that the sentence was unreasonable, unduly harsh, cruel and unusual punishment. The judge confined his decision to this case. Most people now seem to agree with him.

The law students at Stanford University Law school are working on a project reviewing many of these Three Strike cases. In cases where the punishment seems severe for the crime, especially the third crime, they are filing court challenges to the reasonableness of the sentence. I don’t know how successful they are being. But it does bear some scrutiny.

One of the problems we have with our legal system is that a criminal laws are passed by elected legislators acting on emotion. These legislators, in an effort to pander to their constituents, frequently put harsh sentences on various crimes. When the crime rate doesn’t go down they go back to their legislatures and raise the penalties. They then go back to their constituents and brag about how hard they are on crime.

The answer to lowering the crime rate is not in harsh prison sentences. We should have learned this lesson some time ago. We haven’t. Crime does need to be punished. But it needs to be punished appropriately. What we need is truth in sentencing.

If a person is sentenced to serve 15 years, they should serve 15 years. Perhaps they should get some time off for good behavior. But it should probably not be more than 10%. Usually the time off for good behavior works to the benefit of the prison guards. If the prisoners have an incentive to behave well they are less inclined to be a problem to the guards. That is a good thing.

Unfortunately in the state of Missouri we do not have truth in sentencing. One person might be sentenced to seven years in the penitentiary and do seven years. The next person might be sentenced to seven years in the penitentiary and do 15 months. That is wrong.

The problem with imposing long, harsh prison sentences is that even the enforcers will not impose those sentences on most offenders. People who are involved in the legal system will frequently look at mandatory prison sentences and realize that they are unreasonable.

Legislators should take a look at the penalties imposed for certain offenses and make them reasonable. Long mandatory sentences result in prison overcrowding. Decisions then have to be made by bureaucrats as to who to let go in order to make room for other prisoners.

It is easy to look at a person who has committed a third felony and assume they have no hope in life. Maybe they don’t. However, locking them up for the rest of their lives is not the answer. This especially applies to nonviolent criminals. Will they be in and out of jail for the rest of their lives? If not for the rest of their lives, at least for most of their lives. But we, as citizens, must be reasonable. Long sentences do not solve the crime problem.

Reasonable sentences that will be enforced and reasonable sentences that can be imposed are the answer.

Watch for the DRE

2010-08-08T09:13:00.001-05:00

Years ago the National Highway Safety Administration developed a series of standardized tests called Standardized Field Sobriety Tests. These tests consist of the Horizontal Gaze Nystagmus, The Walk and Turn and the One Leg Stand. Conducted by a trained individual and in a laboratory setting they are far from perfect in determining whether a person is under the influence of alcohol.

The original purpose of the tests was not to determine if a person was too impaired to drive. The original purpose of these tests was to give a police officer at the roadside a guideline to help determine whether or not they should even bother to bring the driver to the station for a breath test. Through years of misapplication by lawyers and judges who really had their collective heads up their collective asses, the tests have become significant evidentiary tests in almost every alcohol related driving case.

Remember these are scientific tests. They have to be administered exactly as instructed or they are invalid. It is just like you remember in your high school chemistry or physics classes. You must follow the exact instructions or the results of your experiments weren’t valid. In the situation of administering these tests, the police officers have to remember exactly how to give the tests, give those precise instructions to the suspect driver, score the tests accurately and just as accurately record the results.

I am telling you that this almost never happens. These officers are trying to recite these instructions from memory while standing on the side of the road, watching a suspect who may or may not be intoxicated. The cop in question probably hasn’t been back to DWI school for five years. Any mistake has has ever made in giving the instructions is now incorporated into the way he gives the tests. Most of the time the officer will testify the the driver “failed” the tests. The tests are not “pass/fail” tests. On each test the officer is to record “clues”.

Believe me when I tell you that these filed sobriety tests are not good evidence of anything and should never even be admitted at a trial because they are more prejudicial than probative. But a bunch of lawyers through the years who have not understood what the tests are about have, with the help of a bunch of judges who didn’t get it either, developed an entire body of case law that allows these tests into evidence for purposes they were not originally intended. The original purpose of the tests was to help the officers decide whether the suspect driver had a chance of blowing more than .01 on the breathalyzer.

For those of you who think that blowing .08 or more on the breathalyzer makes you automatically guilty of driving under the influence of alcohol, you are wrong. Sadly many lawyers practicing in the State of Missouri believe that to be the law. It is not.

If you are eve on a jury for a DWI case be very suspect if they start giving evidence about Standardized Field Sobriety Tests. Chances are that evidence is being offered for the wrong purpose, by a prosecutor who does not even understand why he/she is offering it, and testified to by an officer who does not know or understand how to administer the tests, score the tests or interpret the test results, defended by a lawyer who does not know how to cross examine on the issues and admitted into evidence by a judge who is clueless as to the travesty taking place right there in the courtroom.

Now, hold on folks, if you think this is a mess, the powers that be have come up with a gimmick called Drug Recognition Evaluation (DRE). If you haven’t heard about it yet, you will. It is a series of tests administered by a “Drug Recognition Evaluator” (a cop who has been through some course at the police academy) that takes over an hour at the police station and has at least ten separate parts of the tests, some of which are divided into subparts. At the end of the test the evaluator gives a subjective opinion as to whether or not he/she thinks the suspect is under the influence of some drug.

The sad thing is this intrusion upon our liberties and privacy is going to be ignored because the government is going to tell us that it is in our best interests to allow this in an effort to remove impaired drivers from the roads.

That ladies and gentlemen is just a crock. Yet so many of you will say, “Oh no. We need to do this to make our roads safer.” Look around, we have been aggressively prosecuting alcohol related driving offenses for years. Has it stopped people from drinking and driving? No.

There may be ways to address the problem of impaired driving but infringing on our rights of privacy is not the solution. And allowing police officers to administer these tests which, even if administered correctly, yield very little of an evidentiary value is just wrong. We have laws against driving under the influence of alcohol or drugs. That conduct should be illegal. But we should also only punish people who actually violate the law.

When we lower the requirements for a person to be found guilty of any kind of law violation we are slowly eroding all of our rights. Please do not forget that these are your rights. I have spent over thirty years protecting your rights. One of the motivators I have is that they are my rights, too.

Stop Trying to Stop Me

2010-08-04T09:35:00.005-05:00

St. Charles County is discussing whether or not it should ban bicycles from certain roads. I am not sure how I feel about this.

Apparently people enjoy riding their bicycles on the hilly, two-lane roads in southern St. Charles County. I am not into bicycle riding. I have ridden on the Katy Trail and number of times. It was enjoyable. It was mostly flat and not too challenging. That is about all I need.

A few years ago my brother-in-law was involved in bicycle racing. He would tell stories of going out into St. Charles County and riding his bike for miles. None of his accounts included stories of near collisions with vehicles.

Apparently it is the drivers of automobiles were complaining. The struggle between bicyclists and motorists has been going on for years. Granted there are bicyclists who do not follow the rules. They do put themselves, and others, at risk. But so do drivers of automobiles. Why not ban automobiles from those highways?

I thought that we were in a time when we wanted less government intrusion into our lives. But maybe I am wrong. As usual, we only seem to want less government intrusion into our lives. We don't care whether or not the government intrudes into the lives of others. And therein lies the problem.

Government says we have to wear helmets when we ride motorcycles. Government says we have to wear seatbelts when we ride in cars. Government says we cannot text and drive. Government says we cannot smoke marijuana. I know a lot of people who would not wear a helmet when they ride their motorcycles if they had a choice. I know a lot of people who would not wear seatbelts when riding in a car if they had a choice. I know a lot of people who would smoke marijuana if they had a choice. Government has taken away those choices.

An interesting sidebar to this whole issue is that there is now a debate between governments as to who can regulate this. The Missouri Department of Transportation says that it makes the rules. St. Charles County says it can make the rules. Why do there have to be rules?

The people who form the country established a Bill of Rights. The Bill of Rights was supposed to protect the citizens from government. We are a government of the people. It becomes clear to me, as each day goes by, that we really need to be protected from ourselves.

There seems to be an overwhelming urge for a delayed everything. There seems to be an overwhelming urge to complain about government regulation of everything. It really is hypocrisy. People only want to regulate the conduct of others. But they do not want others regulating their conduct.

Government should stay out of this.

2010-07-25T17:41:00.002-05:00

This past weekend I attended a seminar at the Lake of the Ozarks on DWI Law and Science. Keeping up on the law is an important component of any lawyer’s practice. It is especially so when defending those who are charged with crimes.

DWI or DUI is a crime in the state of Missouri. In Missouri it is against the law to operate a motor vehicle in an intoxicated or drugged condition. Just what does that mean?

Most of the cases that I have handled in the thirty plus years I have practiced deal with alcohol related offenses. In Missouri there is a rebuttable presumption that a person is intoxicated if they have a blood alcohol content of .08 or above. Read that carefully. “A rebuttable presumption.”

What that means is the fact that a person has a blood alcohol reading of .08 or above does not automatically make them guilty. But sadly most people don’t understand that.

That is why these seminars are so important. This year the General Assembly met and made some significant changes in the laws dealing with alcohol related offenses. And you can be sure that these laws did not do one thing to protect the rights of people charged with DWI. To the contrary. These laws increased the penalties for some offenses and made it harder for people charged with DWI or DUI, as it is sometimes called, to defend themselves.

At the request of Governor Jay Nixon, a guy who I at one time liked and respected, a commission met with the sole purpose of writing stricter laws about driving while intoxicated.

Nobody likes drunk drivers. That isn’t the point. People should not get drunk and drive. On the other hand, drivers who are not under the influence of alcohol or drugs should not be wrongfully convicted. But each year it is harder to get fair treatment in the courts if a person is charged with DWI.

People get stopped, they are scared, they are put through a series of tests on the roadside that are supposed to be given a certain way. Most of the time they aren’t properly administered. But how do you prove that? The cop says he did the tests right. Trust me, many of them don’t. But unless you get a good lawyer who knows how to defend these cases, you don’t have a chance.

Then, based on those tests you are arrested and given a breath test. You are damned if you do and damned if you don’t. And the Governor wanted to make it a crime not to take the breath test!

Police are applying for search warrants to take your blood against your will based on these wrongfully conducted field sobriety tests and the judges are giving them the warrants.

Ever since September 11, 2001 the rights of citizens are being sacrificed in the name of law and order. It has to stop sometime, somewhere.

These seminars are a good starting point. They help the lawyers who attend to understand how to combat overreaching police, prosecutors and, yes, judges. The system is becoming rigged against people charged with alcohol related driving offenses. It has to stop.

West Plains

2010-07-18T12:05:00.004-05:00

On Friday the 16th of July I had to go to West Plains, Missouri for a preliminary hearing. West Plains is the county seat of Howell County. It is located in south-central Missouri. My client was charged with five counts of various white collar crimes. We left with two of the charges being dismissed. It is a small victory, but a victory nonetheless. The State’s case is pretty weak and I expect a very good outcome.

The trip takes about three hours from my house to the courthouse. The picture you se here is the Howell County Courthouse. It looks like the architect was uninspired about designing a courthouse. Until they added an elevator shaft, (that is that thing sticking out on the right) the building was just a simple square with a flat roof. My wife, a student of architecture, tells me this is an art Deco project built in 1933 as part of a public works program after the previous courthouses burned down. Apparently there is a history of Courthouses in Howell County burning down.To me it is just a square box.

But as you can see from the next picture it is more interesting on the inside, at least from a lawyer’s point of view. You see that door is to the Circuit Clerk’s office. That by itself is not that interesting. See the pedestal next to it? That is what I found interesting. On that pedestal sits a Bible.

The Bible was open to the book of Psalms. I find that to be one of the most inspiring books in the Bible. Proverbs runs a close second. Almost all the lessons an person would ever need in life are found in those two books. Still, I was fascinated by the fact that right here in this Courthouse was a Bible sitting in a place of prominence.

I must confess that it took me back a bit. Why was this here? Is this the Bible they use to swear people in? Maybe. But it wasn’t used in our hearing. In fact, as I think back on it, the judge used sort of a secular oath when he swore in the witnesses.

West Plains is deep in the Bible belt. I guess what I saw should come as no surprise. Since courthouses usually cater to the locals, I am not surprised that it sits there without question.

I must point out that I was really impressed with the local Associate Judge. This was one of the most professional Associate Circuit Court proceedings in which I have ever had the pleasure of participating. The judge was dignified, intelligent, and commanded respect without demanding it. To top it off the State had brought in two lawyers from the Attorney General’s office in Springfield. I like having good lawyers on the other side of a case. Things run a lot more smoothly.

My next scheduled appearance is August 3rd. It will be in the Circuit Court. I had never been to West Plains. I came away with a very favorable impression of the place. I am still not sure about the Bible being displayed in the Courthouse but I do expect to learn more about that on my next trip.

Sunday Morning Bill of Rights

2010-07-11T11:57:00.003-05:00

It is Sunday morning. I was off to have coffee with my Ukrainian friend Anatoliy. We get together on some Sunday mornings to speak Russian, drink espresso and discuss the cultural differences he has observed since coming to America. Anatoly and his wife are now American citizens and very proud to be.

With that pride comes concern. Anatoliy and his wife, as do most of the immigrants from the former Soviet block, get most of their news from the Fox Network. They are politically very conservative. We spend a lot of time talking about the future of America.

Anatoliy is very afraid that the country will become socialist. He always asks me about events he has heard about on Fox news. I try to assure him that our country is safe and stable. He is very conservative when it comes to crime. He has been here less than ten years and already he is beginning to forget what the Bill of Rights is all about.

On the way to meet him I saw an interesting set of circumstances unfold. I travel north on Lindbergh Boulevard through Frontenac. It is no secret that the Frontenac police sit in wait, almost constantly, for people to exceed the forty mile per hour speed limit on that part of Lindbergh. I see a car almost every morning on the way to the gym

This morning was no different, except the car was parked at a different location. I made note as I passed the police car. The officer was sitting there with his radar gun at the ready. I wondered if he had turned it on me as I passed to see if I would speed up after I passed the speed trap? In a few moments I looked up and saw him approaching from the rear at a rate of speed much higher than forty. He did not have his lights and sirens on. I caught up to him at the stop light at I-64, formerly highway Forty. We both turned left and he sped up at a very high rate.

I didn’t travel far before I saw the object of his attention. He had pulled up to where two other Frontenac cars had stopped a vehicle. He was getting out of his car as I passed.

What I saw was three police cars and officers, an older model Volvo station wagon pulled over in front of them and a young African-American male sitting on the guardrail looking rather frightened.

The doors and trunk of the Volvo were closed but I had the distinct feeling they wouldn’t be for long. This is reminiscent of a scene I see a lot. The civilian is often Hispanic or African-American They are surrounded by officers and are sitting on the ground or perhaps a guardrail.

Our Constitution dictates that we in America should be free of unreasonable warrantless searches. Every person in this man’s situation has a right to refuse to allow a search of his vehicle. Certain rules apply to automobiles that don’t apply to houses. Still, the police have to have some articulable suspicion of an actual crime before they can search.

Unfortunately many Courts and Judges have abdicated their responsibility to keep us safe from government intrusion. They allow searches based on such suspicions as the “driver acted nervous” when I questioned him. Well who wouldn’t be nervous in this man’s situation?

I wanted to stop and have a conversation with this man. I wanted to stop and tell him that he had no obligation to answer any questions or to consent to any searches. But under our current law I could not do that. I, too, could be subject to arrest for interfering.

I know that these police officers were not going to go out of their way to protect this man’s rights. I also suspect that he was not well enough versed in his rights to stand up for them.

That man’s rights are my rights and your rights. If they are not protected and safeguarded they will slowly be chipped away. I have no way of knowing how the situation played out. I hope for his sake that there was no contraband in his car.

Enforcing the law is an important and necessary part of maintaining our civilization. But to do it without honoring the Constitutional rights of every person in this Country erodes the fabric of the freedoms that make this country great.

Anatoliy came from a system where there were no rights. I hope his migration to America does not find him living in a similar situation.

St. Charles County Elections

2010-07-05T11:54:00.003-05:00

Which came first, the decreasing quality of newspapers in this country or the fall-off in readership? My guess is the lack of readership and thus revenues have caused the newspapers in this country to have to cut back on staff and eventually quality.

I used to read the newspaper all the time. When we had two newspapers in St. Louis I read them both. Now we have one newspaper and I seldom read it. I do consult the online version. But it just isn’t the same.

I like to read the New York Times when I am there. It has a heft to it that newspapers should have. When I pick up the local paper now it reminds me of what used to be.

All of this comes up because of a conversation I had with my wife yesterday. We were riding along Mid-Rivers Mall Drive. Since it is campaign season she was pointing out some of the signs that lined the road. “How do people get their information about these candidates?” she asked.

How do they?

I have been involved in politics for years. Campaigns get all hung about about yard signs and 4x8’s. A great deal of effort is expended on obtaining locations and placing signs. In some campaigns a great deal of effort is expended in tearing down the opponent’s signs.

The saying is that “yard signs don’t vote!” It is an warning that one should not be too confident, or too concerned, over the number of signs seen for any given candidate. It is true. But how, in today’s world do people get their information?

Sadly there is not a large percentage of people who vote anyway. Campaigns spend money on mailings. People get this stuff in the mail and maybe some of them read it. Most don’t. They just throw it in the trash with the rest of the junk mail.

That brings me to the St. Charles County Prosecuting Attorney’s race. The incumbent is a man by the name of Jack Banas. I have seen his blue and white signs scattered through the county at many locations. It lists his website, Jackbanas.com. The website is very much like Jack. It is clean, direct, to the point and not very flamboyant. That’s okay. That’s Jack. The picture on the opening page is humble and professional. It appears at the top of this post. Jack looks much better in person.

But neither the signs, nor the website really tell the voters what so many of us know. Jack is the best man to hold that office in thirty-five years. That’s as far back as I go in this county. When I first arrived a guy by the name of Ron Boggs held the position. Then there were a few more people who filled the slot. One of the worst was a guy named Bill Hannah.

Hannah came close to making the office a laughing stock. In some ways it was good for the lawyers because his office would issue charges on almost everything that came to his attention. That makes business for the defense bar, guys like me.

Banas is a true professional in his job. He and I do not agree on everything. One would not expect us to do that. But he is a man who is willing to listen to an opposing point of view with an open mind. If he thinks he is right, he will press on with his agenda. If he thinks there may be some reason to re-consider his position, he will.

That is not to say he does not vigorously prosecute crime. He does.

It would be a shame if he loses this election. I don’t think I have ever met his opponent. I know he has unsuccessfully run for judge as a Democrat on one or two occasions in the past. He is now running for Prosecutor as a Republican. A lot of people in St. Charles County switch to the Republican party to run for office. So what happens is the Republican party becomes populated by people who do not hold their beliefs but get elected. It gets complicated.

The people of St. Charles County will be poorly served if Jack Banas is not re-elected. I have heard that his opponent is well funded by a few individuals. I do not know that to be the case. That is just what I heard.

Since this upcoming race is a primary the only people who will be able to cast votes for Jack will be those who take a Republican ballot. I am a Democrat; always was, always will be. I could not vote in that election anyway. If I could, I would proudly cast my vote for Jack.

Excessive Bail

2010-07-04T11:03:00.001-05:00

I have to admit I am conflicted.

Today I was trying to get a bond hearing scheduled. My client was arrested a week or so ago. He is being held on a bond he cannot make. His family has tried to raise the money but they can’t. He has never been in trouble in the past. He has ties to the community. He has a job.

The VIIIth Amendment to the Constitution of the United States, you know, one of the Bill of Rights states: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

What is excessive bail? Well to me it is a bail that a person is unable to post. To others it is not. I always considered bail to be an assurance that the defendant would appear for trial. That is not the current legal thought.

In England, as early as the 1200’s, the Sheriff used to set the bail. And they would abuse their power, much like some judges do today, and keep the suspects in jail by setting a ridiculously high bail. There have been laws and resolutions and even Constitutional provisions passed since then that prohibit, or at least state they prohibit, excessive bail.

Yet we are constantly faced with defendants, usually poor, being held on an amount that no one could make. As an example, I was hired today on a rape case in a rural county. The bail is $250,000 cash only. That means the defendant has to post the full $250,000 to get out of jail while he waits for a trial. Think he has that much? Probably not.

But that isn’t the point of this article.

In 1987 the Supreme Court of the United States gave all law enforcement the free ticket they were looking for. They gave the prosecutors and judges the way to punish people they didn’t like by keeping them in jail before their trial. It is called “preventive” detention without bail.

We see it used all the time in our modern legal system. When it is used to hold suspected “terrorists” we seem to be willing to accept it. But that very thought process is used every day in the common criminal courts in our state and our country to imprison people accused of other crimes.

It is easy for people to exclaim, “So what?” Everybody thinks criminals should be in jail. But, what about people who are just accused of crimes? What happened to the presumption of innocence?

Hardly a week goes by that I don’t have someone in my office who has a relative being held on a bond they cannot make. Last week these same people thought it was okay to keep criminals in jail awaiting trial. Suddenly, though, it affects them and their loved one. Then they have a different attitude.
All I am saying is this: Don’t think it can’t happen to you. Not everybody arrested for committing a crime is guilty. There is no reason for those people to sit in jail awaiting a trial. That can take months, many months. Then, when they are finally acquitted they have lost their jobs, sometimes their families and surely their dignity.

As Americans we should stand up to the court system and demand that every citizen is afforded the guarantees of the Bill of Rights. These are your rights and when they are restricted as to any person they are restricted to each of us.

That is why I fight so hard for my clients. Their rights are our rights. If the government can restrict the rights of one citizen it can restrict the rights of any citizen. It could be you, next time.

So imagine my shock when I went to the judge who was going to hold the bond hearing. I asked him about available dates. He asked me what case it was on and I told him. His response was, “That guy is a piece of S#@t. He is right where he should be. I would never reduce his bond.”

So much for impartiality and presumption of innocence. So much for hearing some evidence before coming to a conclusion.

The only good thing that came out of that discussion was the judge’s candor. Usually I would have just asked the clerk for a date for the hearing. The judge just happened to be standing there when I was inquiring about a date for the hearing. Had he not spoken up, I would have gone into that hearing not knowing that he had already pre-judged the case.

I immediately disqualified that judge. We will have to wait a few more days before we get a bond hearing. I don’t know if the bond will be reduced or not. It should be. The client has ties to the community, has a job and has never been in trouble before. Will the judge use these criteria to determine whether the amount of bail is excessive or will he, without hearing the entire case, jump ahead to the end of the story and keep the client in jail because he has already made a determination as to the guilt of the client? We’ll see.

Farmers' Markets

2010-06-26T18:55:00.004-05:00

My wife and I went to the Kirkwood Farmers’ Market today. We had gone to the Kaldi’s Coffee shop nearby and thought we would walk over and see if there was anything of interest at the market.

I always like going to farmers’ markets. They remind me of the big open air markets in Europe. Fruits and vegetables are piled all around and it is hard not to find something to take home.

Farmers’ markets have been promoted lately as a way of going green. You know, buy locally and it will decrease the distance that the food has to travel. It supposedly saves on petroleum products, cuts back on our use of foreign oil, reduces pollution and supports local farmers. All of those are good things.

We stopped by a few booths. At one we bought some blueberries, another some tomatoes. Since I love cheese I could not help but stop at the Baetje Farms booth. This farm is located in Bloomsdale, Missouri. The man behind the counter was knowledgeable and friendly. He gave me some samples of his cheeses.

My wife spoke right up and told him that I like the strong, stinky cheeses. He had four to sample. They were all good. The first cheese, however, was so mild as to not have any taste. It had a great texture, though. It was called “Bloomsdale.” It is supposedly of a blue cheese flavor that will come out more with age.

I finally settled on a Cherbourg. I liked it best of the four and recommend it.

As we were getting ready to leave we were standing in front of a large fruit and vegetable vendor. I noticed that it had some of the same brands of berries that I see at my local Dierbergs. Then I saw a young man come up to refill the asparagus slot. He was carrying a white, plastic container filled with packets of bound asparagus. He set the box down and started taking the bundles out and placing them for sale. I could not help but notice that the container they were coming from said, “Product of Peru.”

So much for farmers’ markets and going green.

Vatican Exhibit

2010-06-26T13:29:00.004-05:00

Last week my wife and I went to the Missouri History Museum to see the traveling exhibit that was called “Vatican Splendors.” The Missouri History Museum has come a long way from when I was a kid. I remember going there and being a little underwhelmed.

It has changed. A new addition was added a few years ago. Now it is a very well planned and vibrant space. Rebecca loves museums, or is it musea? In any event, since we had just returned from two weeks in Europe her museum visiting mode was in full gear. No matter that we had just been to some of the finest museums in Europe, she wanted to see what the Vatican offered as splendors.

Rebecca was raised as a Southern Baptist so in many ways the Catholic Church is an unknown to her. I, on the other hand, was raised as a Catholic and know more about the church than I even care about. I was an altar boy and sang in the Cathedral Boys’ Choir. I was heavily indoctrinated into the ways of the church.

So on a pretty Sunday afternoon we headed off to the Museum. There was a decent-sized crowd of people in attendance. Most of the crowd was over forty. But it was heavily Catholic. I don’t know about you but I can spot a Catholic. And I can certainly spot Catholics at a Vatican exhibit.

They are the ones who move through the display with a decided reverence as though they were communing with God. I say, “Good for them.” One lady, I will call her elderly, moved reverently from one exhibit to the next as though she was actually in church.

For the most part I thought that the exhibit was mediocre. Many of the sculpture pieces were re-cast from the originals. There were some original paintings and quite a few portraits of Popes. There were plenty of jeweled crosses and vestments that show how the Church values riches and excess. There were little cases that held relics of some of the Saints. These were little pieces of bones fragments almost too small to see. Rebecca found that most interesting. Along with the sculptures and paintings were some historical notes. Those were the most interesting. Rebecca found them very interesting because they told parts of the story that non-catholics might have never heard.

The Catholic Church has always been a world power, But, unless you are a student of history, or a Catholic, you don’t learn about the intrigue surrounding the Church. To the credit of those who set up the exhibit, there was enough mention of the historical roles played by some of the Popes to make it informative and interesting.

The thing I found most interesting to see was the Chalice and other alter tools that actually belonged to and were used by one of the Popes. We were taught as altar boys the items used by the priest during mass are “holy” and God forbid you ever touched one of them. I had visions as a boy of God looking right into the back room just waiting for one of us to sneak a feel of the Chalice. I could not imagine what hell would break loose if that happened. My feelings on that have tempered.

When I was young it was unthinkable to touch the little wafer known as the “host.” We would go through drills about what would happen if one ever fell to the floor. Questions were raised in class about whether, once it was put in our mouth if it was a sin if it touched our teeth. “Don’t ever chew the host,” was the admonition then.

After many years away from the Church I decided to attend a retreat at the White House retreat center. I remember standing in line to receive communion. The priest was handing a host to the man in front of me, yes actually putting it into his hands, when the two fumbled it and it fell to the floor. I was aghast. What would happen now? The priest bent over, picked it up, used a small cloth he had over his arm to give a simple swipe to the area where it fell, turned and put the host on a little tray near him and went on dispensing communion. Things change.

I guess it is unfair to the traveling Vatican exhibit to come right from the Louvre and Muse D’Orsay and draw a comparison. But I was disappointed. The Catholic Church remains one of the richest and most influential powers in the world today. So I was not surprised to find that as we exited the exhibit we had to go through a special gift shop, not the usual museum gift shop, that sold commemorative items of the exhibit. There were books, statues, pencils, calendars, rosaries of course, bibles and my favorite the Vatican Splendor shots glasses. Hey, the Catholic Church did not get that rich by not understanding how to market. Gone are the days when they sold dispensations. Nobody is really buying into that anymore. But shot glasses? Hey, here’s to the Pope. And he is German.

Catching Up

2010-06-26T12:16:00.003-05:00

It has been very busy since I got back from Europe. Two weeks away from the office puts a lot of time pressures into play. When I got back there were any number of messages from Judges and their clerks wanting to schedule hearings or appearances that they had graciously postponed.

When the Federal Court calls, all else takes a back seat. I really don’t know why that it. They get away with it though. A state court Judge once said to me, “The hell with them. They are a Court of limited jurisdiction. I am a Court of general jurisdiction. Tell them I want you here, not there.” I decided against that advice.

I did have to go down to the Eagleton building and appear on an embezzlement case. The clerk was actually quite nice. At this point I am dealing with the clerks from both the Magistrate Court and the District Court. There is a marked degree of professionalism in the Federal system that is lacking in some of the state courts.

The clerks in the St. Charles County Circuit Court rank right at the top for courtesy, helpfulness and efficiency. They are always willing and eager to help out in spite of the fact that they handle an enormous caseload. A lawyer needs to learn early that good clerks are the key to a smooth running court practice. Acknowledge that they run the system and look to them for advice and things will be a whole lot easier.

In addition to a few new DWI cases, an indecent exposure case (bogus charge, peeing outside is not indecent exposure) I also was hired to defend a man accused of engaging in dog fighting and another young man accused in the murder of his infant child. Add to the mix some new automobile accident cases and it is easy to see that this fall is going to be as busy as the first part of the year. I’m happy for that.

We Don't Need Your Help, Thank You!

2010-06-13T11:19:00.003-05:00

It has happened again. A few days ago I had a plea scheduled on a felony case. The prosecutor and I had finally agreed on a disposition. He, for the State and I for my client. It took some work to get there.

The prosecutor knew he had some problems in his case. It wasn't the best case. But I also had a lot going against me. Start with the assumption that my client was, by his own admission, guilty. Would he have probably been convicted at a trial? Sure.

So, in an effort on my part to minimize his exposure to a long penitentiary sentence, and on the part of the prosecutor to avoid what could be a costly and embarrassing loss, we got together on what we thought was a good agreement. The client accepted it. He thought that under the circumstances this was an acceptable conclusion to this legal dilemma.

The court called the docket. We stood there and went through the litany of questions that Circuit Judges must ask. This judge sticks pretty close to the script. There are some essential questions that are required. Some judges add a few of their own. Some judges just ask all sorts of questions without even knowing why.

Then we got to the part about the terms of the plea bargain. The judge recoiled in his chair. You could tell he wasn't happy with the agreement. I was happy. The prosecutor was happy. The client was happy. What business was it of the judge's anyway?

The judge is supposed to be impartial. He is supposed to stay neutral. But here was the judge telling the prosecutor that he should ask for more than what was bargained for. Whose side was this judge on?

What really bothers me about this practice is that I have never seen a judge stop the proceeding and object that the agreed upon sentence was too harsh. When judges do object, and I have seen this one object twice to agreements I have made, they always come down on the side of the State and want more punishment for the defendant.

I will never let this judge sit on another case like this one. Whenever I get in front of him on such a case I will take a disqualification. I have over thirty-five years experience handling cases. I have a wealth of knowledge about the value of cases. I know the strengths and weaknesses of my cases.

When the prosecutor and I finally come to an agreement there are reasons for it. We don't have to explain those reasons to the judges. The judges should rely on our recommendations and follow them. We are all officers of the court.

I would hate to think that it might have to do with the judges having to run for election.

Frank Anzalone Gone

2010-06-08T00:56:00.004-05:00

Thanks to the benefit of email I learned that my long-time friend Frank Anzalone recently died. I am in Barcelona, Spain with my wife. I saw the notice in one of the emails I get from Missouri Lawyers Weekly.

Frank and I went to high school together. Frank was an outsider to many of our classmates. He was a physically unfit brainiac. Frank was always overweight. He seldom participated in gym class. He never played organized sports. He sure was smart, though.

Frank and I had what I would call a great friendship back then. He and I visited each other´s home, spent the night there from time-to-time and just hung out. I think of Frank every time I go to the Galleria. His house was taken to build that shopping center.

Although Frank and I were the same age he got through law school earlier than I did. I went in the Army during those Viet Nam years. Frank was forever 4-F.

He gave me my first practical advice as an attorney. It stays with me until this day. I was still in law school while Frank was trying one of the most high-profile murder cases in St. Louis. It had to do with Cousin Hugo´s and I believe the client was Lucius Tony.

I went to the courthouse to watch. I saw Frank during a recess. I asked him why he was trying the case if it was so evident the guy was guilty. He laughed, as he frequently did, and said, "What have we got to lose?"

That stuck with me. Losing a case is no disgrace. Not trying to do the best you can is. Frank was always an advocate.

Frank and I did not run in the same circles after law school. I would be more likely to see him at a casino in Las Vegas than around St. Louis. I always liked Frank and even though I hardly saw him in the past few years, I will miss him.

Too Busy

2010-06-04T03:10:00.002-05:00

I've been too busy here in France enjoying the place to blog that much. I do have a blog of sorts at www.smtlawfirm.com. From there you can click the "Blog" button is the upper right hand corner.

I am shifting my blog to that spot for the most part. I keep this one for a while but it is too difficult and time consuming to keep both spots up and running.

I hope you will follow me there. I will do my best not to be less outrageous.

A bientôt pour l'instant.

Barcelona Friday

2010-05-28T21:20:00.002-05:00

EDITOR'S NOTE: The pictures are not laid out properly but that is a code problem. I copied this in from http://www.smtlawfirm.com/blog

Once again the day started with a sky filled with high grey clouds. The temperature was only in the high sixties by the time we took to the street. There was a slight breeze that made me question my decision to wear only short shirt sleeves.

We left the Hotel and took a right turn to the north. Rebecca and Katie had announced that today was dedicated to shopping. The only shopping I wanted to do was for a new pair of insoles for my shoes. I have a tendency to keep some things too long. Insoles are on that list.

We worked our way north along La Rambla de Catalunya. This should not be confused with La Rambla. I mean, who would?

We walked past a number of shoe stores where Rebecca tried to get me to break down and buy a new pair of shoes. Not for me. I like the shoes I brought for the trip. They are a little over worn. But they still have a bit of life in them. New insoles will solve what problems they have been causing.

Because I was forewarned that this would be a day of shopping I brought a book along. I am reading The Girl With the Golden Tattoo by Stieg Larsson. I started the book on the flight over and am about half way through it. My friend Howard Hurwitz passed it along to me after he was through with it.

As we approached a store called Massimo Dutti Rebecca and Katie announced that this would take a little time. I decided that this was a perfect time to catch up on my reading and headed for a nearby bench. We agreed among ourselves ((I thought) that I would stay right there and they would come to that point after leaving the store.

Over an hour passed and I decided I would really like to get a cigar. There were no Tabacs in sight so I walked over to the store to change the reuniting plans. Oops. Too late. They were no longer in the store.

Now there is some difference of opinion later on who was where, and who was right or wrong. But since I could not find them I decided to walk back to the hotel, insert my new insoles, get a cigar from the Tabac across the street and return. It worked out. Just as I got back I encountered them walking along the street coming from far north of where I had camped out.

By then it was time for lunch. As luck would have it we were standing by a very inviting outdoor venue called La Golp. Loosely translated to English it means "The Gulp." It seemed like fate was calling.

The sky was still a little grey as we sat down to order. Between the time we ordered and the time the order arrived the sun had begun to break through but only temporarily. The sparse sunlight did not adversely affect the meal, however. Rebecca had what amounted to a cheese sandwich. It was tasty. Katie ordered beans. That's right a simple plate of beans. It was actually surprisingly good. They were a white bean that was cooked and then slathered in olive oil and other seasoning.

I took a chance and ordered pig's cheeks. Yes, I know, it doesn't sound like something a person would want to eat. That's why I love traveling to foreign countries. I get to do things I wouldn't dream of doing at home. I mean where in St. Louis could one order pig's cheeks? I had no idea what to expect. But I had also ordered a half bottle of wine so I felt safe. It paid off. Wow!

This was the tastiest, most succulent pork I had ever had. This beat my smoked pork tenderloin. And if you have ever had that you would appreciate what I am saying. It had a wonderful smoky flavor, juicy content and excellent texture. I hope to see it on restaurant menus in St. Louis soon.

After pig's cheeks, red wine, and espresso I was ready to go. Refreshed and refueled we headed out explore more of the shops in Barcelona. I must confess that most of the details are blurry to me. I brought my book and as we wandered I would slip into a Tabac and pick up a Cuban cigar. When the girls went into a store I found a bench, lit up a cigar and read. It was a wonderful afternoon. It never really warmed up and the sky was grey most of the day. But the temperature was pleasant.

As the evening approached there was talk of making it to the Picasso Museum. He spent a great deal of time in Spain as a young artist. This museum is dedicated to displaying a lot of his early works. It was very interesting to see such things as sketches he had done to gain admission as a student to various schools. We were not allowed to take photos inside the museum. It is located in a very fun part of town. The streets are narrow and the shops many and varied. I thought this shop had an interesting array of items, none of which would be able to be brought on the plane.

There had to be a thousand knives in the place and countless guns. I guess they don't have the FBI doing background checks here. Actually I do not know what the restrictions may be on owning firearms in Spain. I just imagine it would not be a good idea for me to purchase one while I am here.

After the museum we headed up to the Plaza Reial for dinner. I am forced to tell you that the Roma Reial Restaurant is not a place I would recommend. That food was ordinary and the service was abysmal. When Rebecca's second course arrived, after we pointed out to the waiter that it was taking an awfully long time, considering it was one of the specials, it was cold. It didn't look that good. We sent it back, finished our drinks and left. To add insult to injury the check was wrong. Oh well, it is the first bad experience we have had since we have been in Barcelona.

During dinner someone from the U.S. left a message on my cell phone. It was a lady calling about a new case. I listened to her message. She pointed out that she had met me outside the courthouse a few months ago. We had talked about a case for her husband. She never followed up and made an appointment. I thought this was the follow-up call. It was not.

It seems she has some charges against her now. They were felonies. She was very interested, she said, in talking to me right away. Among other things she said in her message was that she had already talked to a lawyer who had told her that he could win the case. But she wanted to know what I would charge her. And it was important that I called right away because there was a warrant out for her arrest.

I looked at my watch. It was almost ten in the evening here. That made it about four in the afternoon in St. Louis. I called. I got her voicemail. I left her a message. I explained that I was in Barcelona and would not be back in St. Louis until June 8th. I told her I would be more than happy to talk with her when I got back. I said in my message that if she wanted to hire me it would cost a certain amount (I gave her that figure) as a minimum fee and that she could call my partner Andy if she needed any more assistance before June 9.

Rebecca, Katie and I worked our way on foot through La Rambla, watching the party goers as we walked. We were tired. We had been on foot for more than twelve hours. The girls had made some great buys and I had smoked some great cigars. We were anxious to pack it in. As soon as we got home we flopped in bed for a good and well deserved night's sleep. I was out in moments.

At 2:30 our time my cell phone rang. It was the lady from the previous call. She started by asking if she could just tell me about the case on the phone and then if I would give her my opinion about the case and what it might cost. I asked her if she had listened to my voicemail message. Of course she had not. She was surprised when I told her the time in Barcelona. In fact she was surprised that I was in Barcelona. After a few words, a few words too many I might add, I explained to her that if she already had talked to a lawyer who had told her he could win the case she ought to be using him. What more could she want?

My guess is she was looking for a bargain price. She wasn't going to get it tonight. All of this explains why I am up writing this at 4:10 a.m. on Saturday morning.

Barcelona Day 2

2010-05-28T20:02:00.002-05:00

The morning sky is overcast. We are setting out to explore the city today. We are considering bussing around town or at least taking the metro to various locations. Public mass transit is so much easier in Europe than it is in the St. Louis metropolitan area. But then again, St. Louis is not a big city in the real sense of the word. We just act like it is.

The day is coming to a close now. It has been filled with adventure.

First of all by the time the girls got ready to go the sky had cleared. The sun was out and the temperature had gotten into the high 60's. My wife convinced me that we should take a tour bus around the city to see all of the sights. That way we would want to know what we should explore in depth on the remaining days. I fell for it.

We got ourselves nice seat on the upper deck and headed out. The bus took us down to the shore and we travelled along the marina and the beach. There was a lot of construction that had been completed for the Olympics. In fact, the beach had not previously been there. While we drove past there was a dredge working to re-establish part of the beach. What wasn't being re-built was well occupied. We did not get close enough for any meaningful pictures.

The biggest stop on the tour, and this means getting off the bus for an attraction that must be explored right at the moment, was a place called Sagrada Familia. It is a church designed by an architect named Gaudi. I have no idea if the term "gaudy" has anything to do with his name but it should. This was one of the most bizarre buildings I have ever seen and it is not close to finished. I doubt that it ever will get finished. Google it. You won't believe it. he is strange in the strangest way.

So after walking around this church for quite a while we went to a local sidewalk cafe for a quick sandwich and something to drink. It was uneventful but necessary. We then piled back on the bus and headed out for the rest of the tour. Little did I know that we would be getting off again to see the Parc Guell. It was also designed by Gaudi. I can't describe it. Let me tell you that visitors are greeted at the gate by a woman in a lizard costume. It gets stranger from there. Again it is worth a Google.

We left the park and headed back to the bus stop. The girls could not walk past the shops without going in. I could not resist going into the Pousada Caballilto Blanco. It was a little restaurant/bar that looked too inviting to miss. It was great. I was working on my first glass of vino tinto (red wine) when the Rebecca and katie found me. They came in to join me and we decided to get a snack.

Rebecca ordered the cheese plate. It was as ordinary at best. I tok a chance on the octopus. What a pleasant surprise. It was sauteed in butter and live oil and was as tender as any fish I have ever eaten. The taste was delightful, light and flavorful. I wish I had gotten a full order.

We finished our snacks and headed for the bus. Soon we were back home. The night ended with a short trip to the clothing stores on Passieg de Gracia. That is about one block from the hotel. I sat outside on a bench, read a book and smoked a cigar while Rebecca and Katie disappeared into a few stores for exploratory visits. The finally returned with a report that there would be a more meaningful trip there tomorrow.

On the way back to the hotel we stopped at a local brasserie for a nightcap.

It was a good day. I have posted some pictures on Facebook.

Barcelona Day 1

2010-05-26T05:54:00.001-05:00

It has been an interesting trip so far. The airport check-ins took almost no time at all. That left us with a lot of time to kill at Lambert and JFK. I think air travel is down so much that even though the plane was full there probably aren't as many flights each day.

The people we encountered in New York were great. The cab driver got us from LaGuardia to JFK in record time and I think it was the cheapest cab fare I have ever paid for the ride. Then we went into a restaurant at the airport and the lady waiting on us was super.

Katie, you may know her as the girl in the front office, I know her as my step-daughter, is on the trip with us. This is her first time to Europe. She had a miserable first leg of the trip. Motion sickness hit her in the first few moments and she didn't recover until right before we got on the plane to Barcelona. She did fine, though.

I was a little disappointed in the seats on the airplane. They barely reclined at all. It wasn't that hard to fall asleep but as soon as I did my head would fall forward and wake me up. So that went on for quite a while.

We are checked in the Hotel Continental Palacete in Barcelona. It is a small hotel but very nice. They have a free buffet twenty-four hours a day. That's not bad. And there is a cigar store right across the street. What more could a guy ask for?

I will try and get some pictures up soon.

I am checking my email, and my phone service works, so if you have a problem you can email me or call. Andy is going to handle any emergencies that arise. 636-486-4861.

I hope none of you get snagged in the upcoming DWI checkpoint. I understand there is supposed to be one this weekend courtesy of the St. Charles County Sheriff's Department. It is an election year, after all

Europe

2010-05-25T07:09:00.002-05:00

I am leaving on a trip today to go to Barcelona and Paris. I also intend to take a day trip to Lyon to go to the restaurant run by the famous chef Paul Bocuse. It is my intention to try to make a blog entry at the end of every day. We will see how well that goes. You can read it here or at my other blog site.

My brother-in-law has agreed to come to town and house sit while I am gone. That gives me the peace of mind that when the house catches on fire there will be someone who knows how to call me so they can describe the fire.

Gee, I just thought about that statement. If the house does catch on fire the cops will be looking for me now. There goes that old right to remain silent stuff I preach about all the time.

Got to go.

Don't Ask Don't Tell

2010-05-25T06:45:00.002-05:00

It amazes me that there are people who would prohibit a person from serving in the armed forces because that person is gay. I just don't get it. There are already thousands of gays in the military. They do not serve openly. Does that make them any less dangerous to those with whom they serve. Are they different if they don't tell?

This country needs to get over its incredible homophobia. As soon as I say that I recognize that those who are the most homophobic are those who are in doubt about their own sexual preferences. We see it all the time. Some gay basher gets turned out as a patron of rentboy.

So, I guess that there are really more gays in the population than we think there are. And if that is the case there are more in the military than we think there are.

The gays currently in the military are usually serving honorably until they get outted. Then suddenly they get discharged. It seems to me that the people who have the problem with gays serving are the sissies. I am sure not bothered, or even concerned about the sexual preference of others, except my wife, of course. There may be gay judges or lawyers. Who cares? I try not to fixate on what others are doing with their genitalia.

Well as long as there is a group of men who are in doubt about their sexuality there will always be discrimination against gays. Seems kind of silly to me. If a person wants to be in the military, they should be able to risk their lives right along with the rest of the people willing to defend this country.

I am sure that there were plenty of gays in the military during the years everyone was getting drafted for Viet Nam. I didn't even think about it. Why do we care?

Okay, I've asked. Now you tell.

Just Curious

2010-05-19T23:26:00.002-05:00

Why do some divisions in St. Charles County use a Petition to Enter a Plea of guilty and then ask all the questions of the defendant, anyway? It just seems a bit redundant.

While I am at it, why do judges believe they should interfere in plea negotiations? I mean who knows more about the relative strengths and weaknesses of the case than the prosecuting attorney and the defense lawyer. We generally put a lot of thought into a negotiated plea. The some judge comes along and says that he or she is not going to honor the agreement. What's up with that? Judges need to stay out of it. I never here them pipe up and say, "Hey, that plea recommendation is too harsh. I'm not going to follow it." No. It is always a situation where they are jumping in on the side of the State and complaining that the sentence is too lenient. It really is none of their business.

By the way, I am changing the location of my blog soon to a Wordpress address. I'll let you know the new URL.

BP and Transocean Ltd.

2010-05-09T09:33:00.004-05:00

Okay this has nothing to do with the law or courthouses or characters I encounter who hang around courthouses. This has to do with the catastrophic events that are taking place in the Gulf of Mexico.

I am just pissed off about it on so many levels that I feel the need to sound off. I mean this is almost like a science fiction story. This leak, if you can call it just a leak, is out of control. I mean the people who started this thing have unleashed a force that they cannot get back in the bottle so to speak. They have been unable to cap off this oil pouring out from the ocean floor no matter what they try.

We sit here, all of us, and assume that this thing will be fixed in just a few days. This mess started on April 21st. It is now May 8th. Just how many barrels of crude oil have spilled out into the Gulf of Mexico since this started?

I remember the reports from the first days were all about finding the eleven missing crew members. That was certainly important. I am pretty darned sure that the higher-ups were certain the workers had been killed in the explosion. But it was appropriate to search for a while, just in case.

And while the search went on we were told there was a minimal leak of only a small numbers of barrels each day spewing out into the waters of the Gulf. Now it seems that number was grossly under-reported.

The name we all hear connected with this mess is British Petroleum or BP. They are said to have leased the rig know as Deepwater Horizon from Transocean, LTD. I don't know how that works and I'll bet there isn't a lawyer within fifty miles of the St. Charles County Courthouse who has ever dealt with off-shore oil drilling leases of equipment. All I am saying here is that I suspect this lease and operating arrangements are so complex that it would take a real insider to understand them.

So now we have a great environmental disaster about to wreak havoc on an already economically depressed area of our country. The economic disaster, coupled with the damage to the coastline and the fish and wildlife, is going to be monumental. Add to that the fact that the very thing that is spilling out into these waters is a natural resource that we Americans depend on in ways we wish we never did and it all just makes me want to scream.

At this writing we are paying $2.78 per gallon of unleaded regular gas. What makes gas expensive? The shortage of oil. What is spilling out into the waters of the Gulf? Oil. What causes us to even be drilling for oil in this area that has the rich concentrations of fish and marine life? Our never satiated need for oil. And now the company that was supposed to be harvesting this oil is causing this valuable natural resource to be wasted and gush into the Gulf waters and wash up on our shores and kill the fish and the fishing industry and tourist industry and the natural beauty of the area. And what will happen next? They will raise the price because there is a shortage.

Am I the only one who sees this as just a huge jab right in our collective eye? This just can't be happening. But it is. I don't have any answers. We love oil! I'm going to get in my car today and drive thirty miles, one-way to my office. I drive all over Missouri to handle cases in the various courts. I drive more than thirty thousand miles each year just for business. In my spare time I ride a motorcycle. I fly off to far away places for vacations. I am an oil junkie. I would quit if somebody invented a different way to do all these things. But they haven't and it is far beyond my capabilities.

I'm not even saying we should not drill off-shore for oil. But I have read the there are devices that are in existence which could have been on this drilling rig which would have shut off the flow of oil automatically. They weren't on there because somebody successfully lobbied against them, claiming they were too expensive. Well, if I ever find out who it was that is responsible for that decision, I intend to kick them right in the ass. All I can hope for is that it will be in a public place and someone is catches it on video.

Just a Few Things

2010-05-06T10:40:00.004-05:00

I believe things happen for a reason. I don't pretend to know what that reason is.

Take Rich Gartner as an example. As I mentioned in an earlier blog Rich filed for Associate Circuit Judge in St. Charles County. I was very happy to see that. I think Rich would make a good judge.

Unfortunately at this point Rich's name has been removed from the ballot. It appears that he, and a surprising number of other candidates, have failed to file the appropriate financial disclosure forms in a timely fashion.

When I talked to Rich this morning he said that he has filed a lawsuit designed to get his name back on the ballot. I wish him luck with that.

Then there is the funny experience of sitting in a public place and overhearing people talk about the law. I was sitting in a diner this morning and a man came in and stood at the counter. He began discussing his recent automoile accident with the waitress.

I will spare you the details. It was amusing to hear him tell the lady what his liabilities and respoinsibilities would be. It did not agree with anything I have ever heard about the law in the State of Missouri. But he was nothing, if he was not certain.

I have that happpen a lot at the office. People will come in with a pre-concieved notion of what the law is. They are frequently surprised when they learn that their neighbor did not have the right information. I should not be surprised, though. I frequently hear lawyers misquote the law.

Public Defender?

2010-05-03T12:20:00.002-05:00

So today was sitting in Division 38 of the St. Louis County Associate Circuit Court for a Preliminary Hearing on a stealing charge. My client was accused of stealing some credit cards and using them. Of course, he is not guilty. We will show that at trial.

The police officer who said he interrogated my client was on the stand. I was feeling pretty good about the way things were going. I was feeling pretty good in general. I was sitting there in one of my finest hand-made suits, a custom made shirt and a tie made specifically to go with it. I had on a very nice set of cufflinks which were a gift from my wife. I am sure she did not skimp on the cost.

It came time for the officer to identify the defendant. The prosecutor has to ask the witness if he or she can identify the defendant. Now it doesn't take a rocket scientist to figure out that the defendant is the guy sitting next to his lawyer at the counsel table. Most witnesses just say words to that effect.

Not this officer. He was going to be very specific. "Yes, the defendant is sitting at the counsel table, in the blue shirt. He is just to the left of the Public Defender."

I wasn't quite sure how to respond. Neither was the judge. I've known Judge Permutter for years. We both looked at each other and started to laugh.

Hey, maybe I have a new career in my future.

2010-04-24T15:34:00.002-05:00

Lately I have noticed a pattern that I have to say disturbs me. The court system seems to be going out of it's way to try and eliminate lawyers.

Take drug courts, as an example. Many drug courts are set up in such a way that the prosecutor's office directly contacts people who have been charged with a crime and informs them that they can be eligible for drug court. This may also apply to some DWI courts.

By doing this the prosecutors and courts usually persuade these individuals to forego legal representation. The people go directly into drug court without ever having had the opportunity to get their own legal counsel.

Drug courts vary from county to county. But in many Drug/DWI courts the people who submit to them end up taking a felony conviction.

There is no doubt that the Drug Courts help some people. But these people should not be brought into the system without first having had the opportunity to have their case reviewed by an independent lawyer. There may be defenses available to them that they waive by going directly into drug court.

In some counties a person who goes into drug/DWI court ends up with a felony conviction. These convictions can result in their license being taken away for ten years.

Judges should be discouraging this practice. But they do not. That seems wrong to me.

A person should not be screened for drug court until they have had the opportunity to speak with an attorney. They still have the right to defend themselves. There could be entrapment issues, Miranda issues or even search issues.

Just as disturbing is the practice of some prosecutors plea bargaining directly with defendants. I see this all the time in traffic court. People come in without a lawyer and the judge asks them if they want to speak directly with the prosecutor. The prosecutor then sits them down and listens to what they have to say. At the end of that conversation they make an offer to the defendant.

The defendant has no way of knowing if that offer is good or bad. They can be intimidated, or more importantly, treated unequally by the prosecutor handling the case.

The more that defense lawyers are squeezed out of the picture the more opportunity exists for governmental abuse. The system was designed to be an adversarial system. That is the only way to keep the government honest.

Trial lawyers have been effectively demonized by all of the establishment for the last twenty years. People fail to recognize that trial lawyers are the last line of defense against oppression by government and big business.

If you are in a county that engages in these practices I urge you to make your voice heard to the presiding judge. Judges are supposed to be impartial. They are supposed to be guardians of the peoples' rights. When the last trial lawyer is eventually eliminated, tyranny will be at your door.

2010-04-22T21:17:00.005-05:00

Okay, I got an email from one of my conservative friends. His name is Bob. He was forwarding a letter to me. I have taken the liberty of reproducing the letter and my response. The first part is from my friend. The letter from the Major follows his introduction.

"The Gun Is Civilization"

Interesting take and one you don't hear much. . . .. . .

As the Supreme Court hears arguments for and against the Chicago, IL Gun Ban, I offer you another stellar example of a letter (written by a Marine) that places the proper perspective on what a gun means to a civilized society.

Read this eloquent and profound letter and pay close attention to the last paragraph of the letter...

The Gun is Civilization

by Maj. L. Caudill USMC (Ret)

Human beings only have two ways to deal with one another: reason and force. If you want me to do something for you, you have a choice of either convincing me via argument, or force me to do your bidding under threat of force. Every human interaction falls into one of those two categories, without exception. Reason or force, that's it.

In a truly moral and civilized society, people exclusively interact through persuasion. Force has no place as a valid method of social interaction, and the only thing that removes force from the menu is the personal firearm, as paradoxical as it may sound to some.

When I carry a gun, you cannot deal with me by force. You have to use reason and try to persuade me, because I have a way to negate your threat or employment of force.

The gun is the only personal weapon that puts a 100-pound woman on equal footing with a 220-pound mugger, a 75-year old retiree on equal footing with a 19-year old gang banger, and a single guy on equal footing with a carload of drunk guys with baseball bats. The gun removes the disparity in physical strength, size, or numbers between a potential attacker and a defender.

There are plenty of people who consider the gun as the source of bad force equations. These are the people who think that we'd be more civilized if all guns were removed from society, because a firearm makes it easier for a [armed] mugger to do his job. That, of course, is only true if the mugger's potential victims are mostly disarmed either by choice or by legislative fiat--it has no validity when most of a mugger's potential marks are armed.

People who argue for the banning of arms ask for automatic rule by the young, the strong, and the many, and that's the exact opposite of a civilized society. A mugger, even an armed one, can only make a successful living in a society where the state has granted him a force monopoly.

Then there's the argument that the gun makes confrontations lethal that otherwise would only result in injury. This argument is fallacious in several ways. Without guns involved, confrontations are won by the physically superior party inflicting overwhelming injury on the loser.

People who think that fists, bats, sticks, or stones don't constitute lethal force watch too much TV, where people take beatings and come out of it with a bloody lip at worst. The fact that the gun makes lethal force easier works solely in favor of the weaker defender, not the stronger attacker. If both are armed, the field is level.

The gun is the only weapon that's as lethal in the hands of an octogenarian as it is in the hands of a weight lifter. It simply wouldn't work as well as a force equalizer if it wasn't both lethal and easily employable.

When I carry a gun, I don't do so because I am looking for a fight, but because I'm looking to be left alone. The gun at my side means that I cannot be forced, only persuaded. I don't carry it because I'm afraid, but because it enables me to be unafraid. It doesn't limit the actions of those who would interact with me through reason, only the actions of those who would do so by force. It removes force from the equation... and that's why carrying a gun is a civilized act.

By Maj. L. C audill USM C (Ret)

So the greatest civilization is one where all citizens are equally armed and can only be persuaded, never forced.

That is the Major's letter. here is my response:

Bob,

Although I do not carry a weapon on a daily basis, I am all in favor of everyone being armed. However, I am afraid that as that happens we become less civilized and moral. Not that we aren't going in that direction now. But if one stops to look at it, the severe degradation in civility and morality comes in the neighborhoods populated by those who are constantly armed. North St. Louis is a prime example.

So in some ways, in spite of the Major's beliefs, carrying firearms does lead to more violence. I would like to agree with the lofty views of the Major as to how human beings react. But, my experience is that we are, on the whole, a pretty miserable species. We are vile and violent and we subjugate those urges when we come to an unspoken understanding among others in our group that we will not settle our disputes violently. Unfortunately we have lost our sense of community in many cases. Gone are the neighborhoods where there were neighbor ladies on every corner, in every other house who would both watch us and watch out for us. Now many of us have never met our neighbors, and if we go to visit a newcomer are treated as though we are just the nosey folks in the third house from the corner. More likely than not the kids will be cautioned about staying away from that "old man" who lives there. He is just a little strange.

Once again, keep in mind that I favor giving everyone the right to carry any firearm they want. Once you limit what can be carried you once again give the advantage to the person who will skirt the law to carry an automatic weapon when the rest of us are limited to semi-automatics.

There are a number of reasons I do not regularly arm myself. One is the dumbass rule in Missouri that even if you have a permit to carry a concealed weapon businesses and governmental agencies can put up a sign saying you can't bring a firearm on the premises. So when I get out of the car I have to know in advance what the business policy is. Otherwise I must leave my gun in the car all the time or walk back to the car if I start to enter a "no gun zone" or just ignore the sign. My tendency would be to just ignore the sign. It is like driving with a revoked driver's license. If you are obeying the law and no cop pulls you over, they don't know your license is revoked. If my weapon is concealed, the business would not know I had it. If trouble broke out and I had to use it, they would probably forgive my transgression.

Of course, I think it is a GREAT idea to put a sign up that puts all potential armed robbers on notice that if he or she brings a gun into this business to pull a robbery they will not have to contend with anybody else who might be armed.

Then there is the issue of "Me." I am a pretty easy going guy, as most liberals tend to be. That is most of the time. But I am also the last guy anybody would want to piss off. When that happens I have few internal stops. Now I can't remember the last time I punched anybody, or picked up the nearby baseball bat and cracked a head, or slammed some fool up against the wall for acting like he deserved to be slammed up against the wall (as an aside, that feeling comes over me most in courtrooms populated by pompous prosecutors). I guess I have some internal controls. It may be, as the Major suggest, though, that advancing age has made me realize that I might not be as effective as I once was.

But, Bob, I run across about two or three people a week who just need shooting. I am just not sure that on those days, at those moments, I should be armed.

So even though I firmly support the right, and encourage the act, of arming all of the citizens, I will refrain from exercising the right. If I ever get in a situation where armed conflict breaks out I will take a gun from one of the sure to be dead bodies on the ground around me. Because I also know that carrying a weapon and having the fortitude to pull the trigger are two entirely different things. Most of these people who want to bear arms have no concept of what it takes to shoot another human being. When it comes to that, they will not have the wherewithal to squeeze off a round. I'll use their gun.

The end.

Wayne

2010-04-22T08:16:00.003-05:00

I love local controversy. St. Charles County really doesn't have that much it. This is still a relatively quiet community. I have a lot of thoughts as to why. But those are only my thoughts. And there is nothing wrong with a quiet community. In fact there is a lot to be said for it.

But there is trouble brewing, so to speak. There is that section of Main Street St. Charles that has all those bars and restaurants. Now usually when one refers to "Main Street" in middle America one is not referencing the "entertainment district." In St. Charles that is exactly what it is. Main street is filled with bars, restaurants and shops. Most of the shops are on South Main and most of the bars on North Main. Restaurants run the length of the street.

On the far south end of Main street sits a giant casino complex. It is big, glitzy, attractive, shiny and fun. It has, of course, a casino. It has a number of restaurants. It has shops and it has bars. The casino serves liquor inside the casino. But the complex itself has a number of bars.

People will debate for years whether the casino is good for the surrounding economy or not. It attracts a lot of visitors to the area. Do those visitors spend money elsewhere in the local economy? That depends on whose statistics you believe. Do locals spend money at the casino complex? You bet they do.

Of course the casino employs people from the area. So that is good. And so you are clear, here, I like the fact the casino is here. I very seldom go. But I think it is probably an overall plus.

A problem, though, is that they get better treatment than the local bar owners just a few blocks away. The casino complex can keep their bars open until 3:00 a.m.. The locals have to close at 1:30 a.m.

So what happens? The casino gets the revenue from the North Main bar patrons who have to leave there to continue their evening. Look, it has been a long time since I have been out partying until 3 a.m., or even 1:30 a.m. for that matter. But it is a fact of bar life. There are people who want to stay out that late and drink. When I was dating a girl in New York City we would not even go out until around 11:00 p.m. Oh, I am so glad those days are gone.

I digress. The North Main bar owners have petitioned the City Counsel to grant them the same privileges that the casino gets. That is all they are asking. They do not want any special favors. They just want to be able to stay open until 3:00 a.m. like the casino so they can compete fairly for those late night, or early morning, dollars.

Okay, here is what Patti York, the Mayor of St. Charles had to say about it: "I'd veto it in a heartbeat," she said. "What's the reason to have it? So people can drink and stay out all night?"

I would ask, why the casino needs it then? What does Mayor York think the people are doing in the casino bars until 3 a.m.?

I mean just level the playing field. I have not given this an in-depth legal analysis to this but it almost seems like an equal protection argument to me. What is the legitimate government interest in allowing one liquor license holder to stay open until 3:00 a.m. when others nearby have to close at 1:30 a.m. Why treat one business different than another. You know, equal protection, XIVth Amendment, that nagging Constitution we have that says governments cannot favor one group over another without a good articulable reason?

St. Charles county is known as a Republican stronghold. Let's take party labels out of this and call the people in St. Charles County "conservatives." These are the people who claim to want government to stay out of regulation of business. They want the markets to run freely and smoothly. They think there is too much government intervention. Then this should be a slam-dunk. Remove the restrictions on the North Main bar owners.

But, sadly, the conservative movement gets hung up on individual conduct. In some convoluted way they think that letting the North Main bars stay open late will cause people to get drunk and rowdy. They must think the the liquor and beer served at the casino has some magic way of not inducing intoxication.

Okay, I'm done. If you don't see the hypocrisy by now you never will. Remove the restriction. It will be good for business. God knows we could use that.

2010-04-19T15:29:00.002-05:00

It is possible to track which pages of this blog get the most attention. As you know, search engines constantly crawl through the Internet and pick up words that appear in documents. When individuals do a search through that search engine the pages are ranked accordingly. The reader then clicks on what ever page that includes the search terms that seem most interesting.

There was an armed protest today in the US national forest in Virginia. Of course, the protest was against the policies of President Obama. The rally is being held on the 15th anniversary of the Oklahoma City bombings. A spokesman says the date was chosen to honor the 1775 battles in Lexington and Concorde during the Revolutionary War. Who knows?

I have a lot of reasons why I am happy that Obama was elected president. For one, he seems to get blamed for everything now. Before Obama came along Trial Lawyers got blamed for everything. He has surely taken the heat off of me.

The reason I mention this rally is twofold. First of all, I was checking the distribution of readership on the blog, and suddenly found a great increase. It turns out that most of the people, some of them as far away as England, are clicking on a blog I wrote earlier that had the word "guns" in it. I guess that has caused a lot of interest today in articles containing the word "gun". The blog was actually about the Guns-n-Hoses benefit fundraiser that is held each year. It has little to do with guns and a lot to do with boxing.

One of the people in attendance at the rally was supposed to be a man by the name of Tom Fernandez. I assume he showed up. Reportedly he has established a nationwide call tree to mobilize an armed resistance to any government order to seize firearms. I am not sure where these "gun nuts" get some of their ideas. The Supreme Court recently upheld the Second Amendment in no uncertain terms. They are about to do it again in a case out of Illinois. But time and time again I hear that Obama "is going to take away our guns."

The irony of all this is that it was Obama who signed the legislation into law that allowed the citizens to carry firearms into national parks. The legislation was backed by the NRA. They called it a major repudiation of the gun-control communities and the self-defense agenda. Obama signed it. It is the law. What don't they get about that?

2010-04-15T17:00:00.003-05:00

Okay, before long drinking and blogging will probably be illegal. Just about everything else surrounding the use of alcohol is becoming illegal. Hey, I have a great idea! Let's pass a Constitutional amendment prohibiting the manufacture, sale and transportation of intoxicating liquors. That should solve the problem.

I mention this because I have taken this opportunity to go to my rather extensive wine cellar and choose one of my collection's finest bottles to consume while I tap away at the keys on my MacBook Pro. I actually have a sommelier who chooses wine for me. Very astute at her job.

Today I spent a lot of time around the St. Charles County Courthouse. It was one of those days that took a lot of time but accomplished very little. I started out on a few new cases. One is a Class D Felony of Resisting Arrest and the other is the Class C Felony of Forgery. There were also some traffic cases. That schedule had me starting at 9 and then being around until about 2:30 in the afternoon.

Earlier in the day I had run across Public Defender Tracy Brown. She was in a jury trial in Division 1. That room is presided over by The Honorable Ted House. After I took care of business I went up there to see what was happening.

Before that, though, I tried to have a preliminary hearing on a case. I mean it was set for preliminary hearing. The Judge had put on the Memo that the State was supposed to subpoena witnesses so we could have a preliminary hearing. It seemed pretty clear to me. But when the case was called, the prosecutor handling the case acted surprised.

There was a great big stamp on the file that said this case was going to go to the Grand Jury. This case was a few months old. It should have been to the Grand Jury by now. But, no. When the prosecutor assigned to the case called upstairs to her office nobody seemed to know anything.

My choice was to have the case dismissed, which the judge would have done, or agree to yet another continuance. See what burns my ass is that defendant's lawyers are always getting scolded by judges for asking for continuances. But when the State wants a continuance it is a different story.

As I said, this Judge would have dismissed the case if I had pressed for that. Why didn't I? Because the State would just re-file it and then re-arrest the client and make them post another bond. Is that fair? No. Does it happen more than you would think? Yes.

So I then wandered up to Division 1 to see how Tracy was doing on her case. As best I could tell there had been two prosecutors on the other side. They always do that. And they bring along a paralegal. I mean if you are spending the taxpayers' money, spend it big.

I would like to take this opportunity to point out that one time I did a products liability case against Shell Oil, Amoco, Phillips Petroleum, Helmerich & Payne, Buckeye Gas and two other defendants not significant enough to mention in that company and when the trial started I was the only lawyer at the Plaintiff's table. There were at least seven lawyers on the other side and enough paralegals to field a baseball team. My client came away with more than $460,000.00. So I have never felt the need for an entourage.

One of the lawyers at the prosecutors' table was my long-time adversary Phil Groenweghe. The lawyers were waiting for the jury to return with its verdict. That is the most miserable time in a trial lawyer's life. This jury had just sent the Judge a question. The lawyers and the Judge were trying to decide how to respond. As I stood around the Courtroom Tracy brought up this blog. Phil then commented that he had been mentioned in the blog.

Now I know I had never mentioned him before in this blog by name. He made a reference to how I had worked him into the blog. I have yet to find that spot in the previous blogs. I have clearly made reference to him. He could not have read the blog and mistaken that. But I could not find the language that he mentioned. Of course I am now on glass number two of wine.

Now Phil is a guy I have known for more years than I care to remember. I cannot recall one pleasant experience I have had with Phil in all those years. We just do not hit it off. Don't get me wrong, he is the best trial lawyer currently in the St. Charles County Prosecutor's office. He is prepared, hard-working and skillful. But we just don't live in the same world. That doesn't make him a "bad guy."

But I will say that with the exception of Phil and one other guy who is dead now, I have gotten along quite well with my opponents. I mean this is a job. I don't take it personally unless you do something that crosses the line of good advocacy. Hmm, come to think of it there is another lawyer who is on my list. Phil is a hard fighting advocate. But I do not question his ethics. The taxpayers of St. Charles County weren't advertising for a guy to win the Mr. Congeniality contest when they hired Phil. They were looking for a trial lawyer and they got one.

In closing I want to ask you, Tracy, not to stir me up again when I am just about to leave and go home. May your verdict be swift and true. Sometimes a criminal defense lawyer is willing to swap true for swift.

2010-04-10T09:10:00.003-05:00

It is Saturday morning. Every lawyer in private practice should be in his office on Saturday. I don't know why. I have just always gone in on Saturday when I am able. It is a way to get a lot of work done in a relatively short period of time. There are few distractions. The phone doesn't ring as often and there are no others in the office. What would take two hours on a weekday can easily get done in an hour. So, good for Saturdays!

Friday of this past week brought me one of those moments that make me want to pull out my hair. I was representing a man with a rather, let's say "complicated", criminal situation. It involved some past offenses and some charges pending in more than one county.

I showed up in Court with him on Friday to enter a plea of guilty on one of his charges. The prosecutor and I had worked out what we thought was the proper disposition on the case. You have to look at it this way, who knows more about the value of the case than the attorney prosecuting it and the attorney defending it?

We are the people who know the strengths and weaknesses of the case. Maybe the State can win, maybe it can't. Maybe one of the witnesses isn't as strong in person as that witness appears on paper. Maybe the defendant has some valid points to raise at trial. Maybe the defense lawyer is just really good at what he does. (I will refrain from commenting further on this subject at this time).

All of these factors and more go into working out a satisfactory plea agreement between the prosecutor and defense lawyers. Then of course there is the fact that after the plea bargain has been struck, the client has locked into it as gospel. No matter how many times a lawyer explains to his client that the judge is not bound by the plea agreement, the client believes that he is going to get what the prosecutor and his lawyer have agreed to recommend to the judge.

So on Friday, after working out a plea agreement on a complicated case, I had that wonderful experience of having a Judge decide that he knows more about the case than the prosecutor and I and he said he wasn't going to follow the recommendation. Holy mother of God, save me from Judges who do this!

The strange thing about this is the only time I can remember this happening to me in the past twenty years was in front of this same Judge. I guess that makes me the fool here, doesn't it?

I could tell by the look on the Judge's face when the prosecutor was voicing the terms of the plea agreement that there was going to be trouble. The came the, "Counsellors, approach the bench." Oh great! Here was this Judge who had very limited criminal law experience as a lawyer prior to his taking the bench, messing with our plea.

Now, to be truthful with you, I had gotten a really good deal for this client. But that is no reason for the Judge to butt in. He is supposed to be impartial. He is supposed to make rulings when called upon. We weren't calling upon him.

I do understand the whole concept of the Executive branch (prosecutors) not being able to dictate to the Judicial branch what they must do. But this was a case where both lawyers were in agreement as to how a case should be resolved. A Judge in that situation needs to sit back, say his magic words and let the case be resolved.

If I were a prosecutor in that situation I would dismiss the case. If I had to re-file it and get another judge, that is what I would do. When the prosecutor and defense lawyer agree on a disposition, the judge should sit there and keep out of it.

Putting a plea deal together is not always the easiest thing to do. A Judge should realize that when a plea deal comes before him or her that seems a bit odd, there is a reason for that. The reason is that everyone concerned with the case has worked very hard to fashion this rather unusual plea agreement. That is why it looks and sounds so different. There is something about the case that makes it not the usual. Then, more than ever, the Judge should stay out of it. But if there continue to be Judges without real-life criminal law experience as practicing lawyers, there will continue to be Judges who don't understand how the lawyers get the system to work.

2010-04-06T06:11:00.003-05:00

Yesterday I was in Clayton for a preliminary hearing on a case of fraudulent use of a credit device. It seems my client is on a video using a stranger's credit card that she had recently reported stolen. Damn those video cameras. There used to be a time when a guy could steal a credit card and use it without having to suffer the humiliation of seeing himself on the big screen later.

While I was there I ran across one of the lawyers from St. Charles County who I will refer to as a "young lawyer." There seem to be more and more of them. In fact that is one of the things we were talking about. There are an awful lot of lawyers around.

Law schools are cheap to run. They are money makers for Universities. There was a time when a University's main goal was to educate. That was many years ago. Now its main goal is to make money. For one thing it has to pay huge salaries to some professors. Not all, mind you. But some of these law professors really knock down the big bucks.

I digress. (One of my favorite things to do). This young lawyer and I were talking about what the increase in the number of lawyers was doing to the profession. One of the things it is doing is cheapening the profession and reducing the quality of legal service given to the public.

Look, I'm just going to come out and say it ... some of the people I see representing the people in court should go off and do something else. All these lawyers seem to want to do is sign up a case and then plead their clients guilty for whatever deal they can get. It makes me want to pull my hair out.

This type of lawyer as been around forever. I understand that. There just seems to be so many of them, now. When I first came to St. Charles County that kind of lawyer was the exception. Not so much anymore.

Just hang around the Associate Circuit Courts for a while. The shear volume of attorneys there for a traffic docket is alarming. Then when you stop to realize that some of these people are only charging $45.00 for a traffic ticket you have to wonder what kind of representation they can give?

Back to the young lawyer in Clayton. One of the things he told me was that he had considered running for Associate Circuit Judge but at the last moment decided against it. He would be perfect. He is exactly the kind of lawyer I have in mind. He is hard working, honest, experienced and pleasant. But no. At the last minute, because he had done no prior planning, he decided not to run.

Now I figure I am only going to be doing this for another ten years. The next Associate Circuit Judge elections won't be for four years. Nonetheless I am going to start working on this guy now. It is not too early to start. He is just the kind of lawyer we need on the bench.

2010-04-03T08:13:00.002-05:00

This morning I went online to try and find out who has filed for various offices in the State and County. I am not an online genius by any means. But I have been unable to figure out how to get this information. Neither the Secretary of State's web site, nor the St. Charles County Election Authority's web site, has it prominently listed.

My main interest was to see the final breakdown of filing for the Judges' races. Almost everybody has a free ride, I am told, except for Judge Matt Thornhill. I may be wrong about that. I can't find the info online, yet.

I am told there are three people who have filed to take Judge Thornhill's paycheck away from him.

One is a man who is on the St. Charles City Council. I really don't know him. His name is Richard Veit. I guess I really don't know much about him, either. That doesn't make him good or bad, fit or unfit for the job. He is on the ballot.

He, and the rest of the candidates are all running as Republicans. Note how I say they are running "as Republicans?" In St. Charles County it greatly increases one's chances of election to run on the Republican ticket. People in St. Charles County are very confused. Most of them are demographically Democrat. But because most of them can't stand to remember where they came from they declare themselves Republicans. There are, indeed, old line Republicans in St. Charles County. I have met a few. The rest are, as they say, RINO's.

Also on the ballot is family law attorney Karen Little. I know her. Well, I have met her on a number of occasions. She has always been quite cordial. Actually she is generally very pleasant. Since I do not practice family law I really do not know much about Karen's qualifications, either. She seems to be in the courthouse a lot. At least she knows her way around.

The other candidate is Rich Gartner. He is a lawyer who has a wide range of experience in the personal injury field. I have known Rich for a long time. So that it is clear to all, Rich is my personal preference for the job. I think he has more wide-ranging experience than the other candidates. And, since I have known him longer than the others, I would prefer to see Rich be the Judge, if he wants the job.

These people are all running for Associate Circuit Judge. This is a very important position in the Judicial system but not one that takes a great deal of legal knowledge. You need to know about a wide range of law, traffic, criminal, civil, family law, small claims matters, and a few other things. But one's depth of knowledge is not that critical on a daily basis. And though an Associate Circuit Judge makes a lot of important decisions, i.e. probable cause in criminal cases, bond amounts, and others, the job, on a daily basis, seems mind numbing.

Since I have sat and talked with Rich in an informal way through the years we have known one another, I just feel more comfortable with him. In many cases, that is all a voter is looking for. Now I live in St. Louis County so I don't vote in the St. Charles County elections. It is a bit of a drawback because there are some office holders in St. Charles I would like to oust.

Somebody told me that these candidates are going to have to raise about $100,000 to successfully run one of these races. That is going to be hard to raise. Most of the populace is just not that interested in Judge's races. Lawyers are generally scared to death to contribute in Judge races because they are afraid not to pick the winner. Let's face it, for the most part most lawyers are gutless sycophants. Getting them to stick their neck out and take a chance is just a difficult task.

I haven't mention much about Matt Thornhill. I haven't appeared in front of him since he as taken the bench. I have heard stories about things he has done that make me uneasy. I know from my experience with him when he was a prosecutor that he was a little quirky. And I do know that he would do favors for lawyers who were his friends based on their friendship rather than the merits of the cases. That bothers me. But he is generally a pleasant kind of guy.

When he was a prosecutor he did ask me to get him some baseballs autographed by Chuck Berry. Chuck was honored and I was happy to get them for him. Chuck loves baseball. He got a kick out of signing the baseballs.

Let the elections begin. I hope the best person wins.

2010-03-30T21:20:00.002-05:00

I should not sit around at night, drink wine and blog. It can only get me in trouble.

Not too long ago I wrote about the upcoming elections for the Judges' seats in St. Charles County. I bemoaned the fact that good lawyers don't run for the jobs. There are a lot of reasons for that.

It has ended up that only one of the incumbent Judges has drawn an opponent. Can all of the incumbents be doing such a great job that they deserve re-election? Apparently so. Who am I to say? I have only been trying cases in St. Charles County for the past 35 years. What would I know about Judges?

Hey, I do not even handle cases in front of some of the unopposed Judges. Good judgment (something I am frequently accused of abandoning) dictates that I do not lash out against sitting Judges, even if they are unopposed.

I must be truthful, though. The sitting Judges who are running unopposed have done a pretty good job. I have seen some grow in their jobs and stature. Maturity does a lot for a Judge. Being an Judge is not an immense mental challenge. It is a balance of being fair, knowledgeable, honest, flexible and accommodating.

I'll explain all that to you someday. Not today.

I will probably get involved in the contested race. I have a favorite.

I offer my congratulations to those who will re-ascend to the throne. I ask them to remember that they serve all the citizens, not just the prosecutors.

Speaking of Prosecuting Attorneys, Jack Banas is the incumbent. I make a living, a pretty good one I might say, challenging almost everything his office does. So, I want to make this clear. Jack Banas is the finest man who has held that office in the 35 years I have practiced in this county.

I don't agree with him all the time. But I think his ethics, his sense of duty, his willingness to listen other opinions, and his honest desire to do what is right is unquestionable. That kind of endorsement from a hard-core criminal defense lawyer might not be what a prosecutor wants. If that is the case, I apologize to Jack. But every community in this country would be served well with a man like Jack as their prosecutor.

He respects the rights of everyone. That is all I ask.

2010-03-24T21:26:00.003-05:00

In November the voters in St. Charles County are going to being marking their ballots to fill, or re-fill a number of Judge positions. Circuit Judges in Missouri earn, or are paid anyway, $120,484 annually and Associate Circuit Judges $109, 366. That is pretty good money.

But the big secret is that the judges have one hell of a retirement plan. It is not only good. It is great. Without boring you with all of the details they get roughly one-half of their highest pay when they retire. That comes with health benefits and a cost of living allowance. Now any of you numbers geeks who want to give all the details, feel free to jump in.

They do have to serve twelve years to get the full benefit. That pretty much rules out a guy like me. I would never have been able to do that job for twelve years. Plus I am a Democrat in a Republican County and I would have never been able to play the game and call myself a Republican just to get elected. But it does not take a mathematical genius to see how much it would take in earned dollars contributed to fund a retirement plan like that.

Hey maybe these young, inexperienced people who run for these offices are smarter than I think. Most of them are not the best lawyers around. They have little real experience running a law practice, trying cases or actually having real life experience. But maybe the reason they run is they see the actual long-term financial benefit. I know I did not when I was that age.

That brings up a different topic. Judges should not be elected in partisan elections. They are not allowed to participate in party political matters but then every election term they have to declare themselves affiliated with a party. Hypocrisy! Plus it results in a situation where a good lawyer of the weaker party won't run and some boob in the dominant party files under that party's banner and gets elected almost by default. That situation occurs in venues al across the State, more than you would care to know about.

I digress. The job of a Circuit or Associate Circuit Judge in St. Charles County is pretty good duty. Why is it then that we never really get any of the great lawyers in St. Charles County running for Judge? The filing deadline for this year is March 30 at 5:00 p.m.

Don't get me wrong, we have some good Judges in St. Charles County. There are some running who deserve to be re-elected. There are some who don't. One Judge will not run again. He will be a true loss to our bench, but I dare not say too much lest I be accused of pandering and he still has almost nine months to serve. I am sure I will appear before him again and I am equally as sure he will piss me off at least once between now and then. But one does not have to agree with me all the time for me to think of one as a good Judge. This Judge is expected to be replaced by his son.

I feel sorry for the son. He has big shoes to fill. Expectations will be great. He will disappoint because he is not his father. For the first year or so every decision he makes, on each and every little thing, will be viewed in the light of what his father would have done. Eventually he will develop his own style. He will either be good or bad on his own. As they say, the jury is out. He will have to be his own man. I wish him well.

That race aside the members of the bar have to take responsibility for the quality of Judges we get. They have to come from our ranks. Yet I almost never hear of a recruiting effort. What we have is lawyers who show up and announce they are going to run. The older, more successful lawyers stand on the sidelines and let the chaos continue.

Instead of getting together and trying to find good candidates, or instead of trying to discourage those who just don't seem up to the job, the members of the bar who should speak up remain silent.

So the time for filing this term is almost over. The elections will come and we will end up with some good Judges. We also risk having some people on the bench who just should not be there. Part of that blame, a large part of that blame, rests with the lawyers. It is with sadness and regret that I accept my share.

2010-03-15T08:00:00.003-05:00

If I weren't so busy I would have more time to blog. This past month has been filled with hard work and excitement.

Last week alone saw a felony Child Endangerment dismissed, a hung jury on a 1st Degree Assault case, and a resisting arrest dismissed.

The 1st Degree Assault was a trial that only lasted about a day and a half, but the jury went out on Tuesday at about 2 in the afternoon and did not come to a final deadlock until Wednesday at about noon.

I was supposed to have a trial on a resisting arrest today but the prosecutor called Friday and announced that she looked at the case again and decided it was not that good. Well, I told her that about six months ago.

Instead of trying that case I will be taking care of a few DOR cases. I do have a misdemeanor plea on for today. It was a Felony Assaulting a Police Officer. But it will be reduced to a misdemeanor and the client put on two years probation.

I hope my schedule this week will allow me to sit in my office for a while and catch up on my phone calls and paperwork. I need to find a good neurosurgeon and a good forensic evidence expert to review some cases I am working on. If you have any recommendations. please let me know.

2010-02-18T16:32:00.002-06:00

I just finished talking to some people who had hired a lawyer for their brother. The lawyer collected more than $11,000.00 for the brother's defense. The lawyer did not take one deposition. There was preliminary hearing and that was that.

The defendant stayed in jail for over a year awaiting trial. When the relatives would not pay the lawyer any more money, he tried to withdraw. The judge would not let him. So within about two days the defendant was brought before the court and entered an Alford plea.

Like so many people they all believed that is like pleading not guilty. The sentencing is not set for another month. They are not even sure what the terms of the plea agreement are.

Over and over again they said, "My brother just wanted a trial. He knew he could lose. But he wanted to have a trial because he did not do this. That is what he wanted."

Almost every day I hear a story about some lawyer who talks the client into pleadfing guilty even if that isn't what they want to do. There is no shame in a guilty verdict. There is shame in not doing a good job. Sometimes the best efforts lead to a guilty verdict. Clients understand that.

They are looking for someone to fight for them. I am afraid the trial lawyer is becoming an endangered species. How sad.

2010-02-15T07:53:00.002-06:00

It's President's day! That means the people who work at courts, banks, US Mail and trash collection do not have to work today. I do, however.

Today I am off to the jail to visit a client or two who is unable to post bond. For those of you who do not know, the people who do so say that sitting in the county jail is worse than being in the Missouri Department of Corrections. It seems somewhat counterintuitive. A lot of it has to do with what activities are available. In the county jail, there aren't many.

It is just as good that this is a holiday. There are a lot of people who would not be able to make it to the courthouse. That would have caused a docket mess.

It is time to go into the final preparations for an assault case up in Palmyra. My client shot a guy he found sleeping in his garage. The guy had broken in a was sleeping in the client's car. When the homeowner went out to confront the intruder, the intruder attacked the homeowner and his wife. That was in spite of the fact that the homeowner was holding a gun on the intruder.

For some reason the prosecutor thinks my client was in the wrong. I've got to tell you, if I were in the homeowner's shoes, I would have shot the guy, too.

2010-01-29T19:44:00.003-06:00

It has been an interesting couple of days. A client of mine was charged with endangering the welfare of a child. It is, perhaps, one of the most farfetched cases I have ever seen filed. As a matter of fact I called it outrageous. I stand by that.

I pointed out in a newspaper interview that the mere fact a person has an elevated blood alcohol content does not make a person a bad mother. Nor does the fact that her child died while her blood alcohol content was elevated.

Correlation does not prove causation and the State will, or should, admit that there is no evidence to show this mother did, or did not do any particular thing. She did not cause the death. She happened to be asleep when the child died. She had put it down to sleep. When she woke up the child was dead.

In the interview I stated that a person can have a blood alcohol content of .40 (meaning very elevated) and still be a parent.

Wow, you should read the comments from the readers! These are the people who hide behind made up names and give their moral judgment on others. I was called, if not every name imaginable, a lot of bad names. There were even posts by people from my past who gutlessly took shots at me. I always like the "Cocaine Wayne" reference from back in the days when I represented a number of big cocaine dealers.

A judge actually gave me the name jokingly. My detractors, not knowing what it meant, or that I thought it was kind of funny, like to trot it out in these posts to these newspaper articles. Of course, like all small-minded people who hide behind the anonymity of a made up name for posting comments on newspaper articles, they want to draw some negative conclusion from the name.

That is the same thing they are doing about this case. These morons, these simpletons, are all in favor of everybody else being sent up the river. They read a few lines, come to their conclusion and then make their moral judgment.

I stand between freedom and tyranny. I will stand there until every last drop of my blood is gone. If this case stands, every person will lose a piece of their freedom.

This case is not about the morality of drinking. This case is not about the wisdom of drinking. This case, if the State succeeds, will be another intrusion on the choices we, as Americans make everyday.

This child did not die because of anything the mother did or did not do. The doctor that the State always claims is never wrong called this an accidental death. The do-gooders in the world want her punished because she had a high blood alcohol content at the time the child died. It's a little bit like the biddies who used to snicker about the woman from the wrong side of the tracks.

This is a sad case on so many levels. If you can't see it, I am sorry for your vision of America.

2010-01-27T08:44:00.003-06:00

Yesterday I met with a family who had asked me to come visit them at St. Louis Children's Hospital. They have two lovely teen age daughters who were horribly injured in an automobile collision.

They were riding in the same car, older sister driving, when some clown tried to pass them in the fog, encountered oncoming traffic and caused a four-car wreck. The oldest daughter almost lost her foot. The prognosis is guarded, but optimistic. She will probably keep the foot.

The younger daughter is, as of yesterday semi-concious. She was out of it for the first four days. Now she occasionally opens her eyes and looks around. One moment she will recognize her mother, the next she doesn't know her.

The parents of these girls are hard working people. They both have solid, stable employment. The father has health benefits through work. But even now he is worried that the medical expenses may far exceed the lifetime policy limits. And hey may.

One girl has been in the ICU for six days now. The other is still hospitalized. The girls are in two separate hospitals. The parents have been off work and they take turns going to stay with the girls in the two different hospitals. The hospital bills alone will be astronomical.

There is no way that these girls, or this family, will ever be adequately compensated in the civil justice system. All I will be able to do is try. I will help them coordinate their benefits, I will help them with their sure-to-come work related issues. I will help them to ward off the scores of health care providers who will relentlessly hound them for amounts not covered by their health insurance.

There will be threats of collection suits against them, liens flying all around and creditors saying that if they don't pay now, the parents' credit will be adversely affected. That will all pile on the therapy schedule, the counseling and the disappointment these parents will suffer when they look at their once vibrant, A-student daughter coping to recover from a brain injury delivered by a stranger on a foggy afternoon.

I, like any good Plaintiffs lawyer, wish that I had it in my power to do more for these people. Sadly, in the end, the judicial system will never be able to fully restore them. Nor will the money I will eventually recover for them.

The next time somebody talks about frivolous lawsuits, think of this one.

2010-01-20T08:34:00.002-06:00

It is 8:30 in the morning and my cell phone has already started ringing with new client inquiries. I just got off the phone with a young lady who has her work cut out for her. If she gets her work done (going around collecting the money for the retainer) I will undoubtedly have my work cut out for me.

Her friend (boyfriend I assume but do not care) is in jail in St. Charles County on a failure to appear warrant for a driving while suspended. That is problem number one. He also has a warrant for a felony DWI pending in St. Louis County. The docket sheet entry on that case says, "No Bond Allowed". That makes me think that the powers that be feel he is not an easy guy to work with.

I do not want to get into, at this time, the concept that there can be a "No Bond Allowed" status in America. My reading of the Constitution states that "Excessive bail shall not be required ..." and it seems to me that setting "no bond" is the same as setting an excessive bail. Call me a strict constructionist if you must.

All of this "no bond" crap is as a result of do-gooder types who have gotten the judges in the courts to look into their crystal ball to see what the defendant "might" do in the future. "Oh, judge" (that is another thing that bothers me...when on the bench the person is to be addressed as "Your Honor." Judge is a title. It is to be used off the bench.), the prosecutor will say, "don't release him on bond. In this case he did (fill in the blank). He is a danger to society."

Well isn't the purpose of this case to decide whether he did (fill in the blank)? He hasn't been convicted of it yet. He ought to be out on bond.

Well, anyway, this whole fact situation means I may have a lot of scrambling to do in the next few days. I have court in Warren County and then depositions Thursday (tomorrow)in Hannibal on a first degree assault case up there. I will have to appear in Clayton on this new case some time between now and close of business on Friday.

So why am I sitting here typing. Gotta go.

2010-01-18T14:00:00.002-06:00

I, for one, was happy to see the state Circuit Court Budget Committee makes some changes in the St. Louis City Circuit Clerk's office. I am no fan of Marianno Favazza. The plan puts the hiring and firing decisions of the individual courts in the hands of the presiding judge in St. Louis City.

I am not real familiar with the operation of the City Clerk's office. But I do know that Favazza runs it any way he wants. Early last year, operating on hearsay and speculation, he suspended a bail bondsman from writing bonds in his circuit. That is in spite of the fact that the man was in total compliance with State law at the time.

The Court finally overturned his decision but it was not until the bail bondsman hired attorneys, including me, to file numreous lawsuits to win back what was already his right. It did not matter to Favazza then that the Supreme Court rules and state statutes said he could not do what he did.

So now he is back in Court. He has filed a suit asking to get back his authority to hire and fire the clerks. That seems to me to be a big thing with Favazza...his "authority."

I get the feeling that I am not the only one who isn't happy with Favazza. In fact I know I am not. Mariano, maybe your "bigshot" attitude is coming back to haunt you.

2010-01-18T10:07:00.004-06:00

Okay, it is Martin Luther King Jr. day and I am at work. What's up with that?

The Courts are closed, the banks are closed, schools are closed. So why are we open? For the love of it. That's all I can think of.

It's a good day to get a lot of paper work done and I'm taking advantage of that. We are also breaking in a new legal assistant.

So all-in-all it's been a quiet day. Not bad every once in a while.

2010-01-15T11:33:00.002-06:00

So today I got a call from my Findlaw rep. As you might understand, he was upset.

First of all he wanted to point out that Findlaw, his division of Thomson Reuters, did not lay off 240 people. In fact, he says, they hired more people because business is so good for them.

I hope I have cleared that up. It was a different division of Thomson Reuters that laid off the people. I don't think I said it was Findlaw that had the layoffs. If you look at the article that is linked, it clearly refers to Thomson Reuters.

As is frequently the case, when people read things they do not like, they think it is a personal attack. That certainly wasn't the case. My sales rep is a good guy. He's knowledgable, fun and hard working.

Frankly it isn 't his job to manipulate the web sites to show up on Google. That is someone else's job. Too often the sales people do not get the performance they need from the people in the home office.

All of that does not change the facts. I want out of my contract. The company tells me I can't get out. If that is their position, that is their position. I don't sit on the Board at Thomson Reuters. They don't let me make decisions for that company. I only get to make decisions for mine.

I am sure there are thousands of happy Findlaw customers. I am just not one of them.

2010-01-14T13:43:00.005-06:00

Here is a question for you. Can a company that sells web sites to lawyers do so ethically and tell them that they will get each of the web sites as high up in the Google search rankings as they can? It seems to me that the company faces an inherent conflict of interest.

Let's say you are a law firm in St. Charles and you want to have a web site for the purpose of attracting new business. People need to be able to find the web site. There are a number of ways you can go about it. One way is to have a web site developer come in and build a web site for you. You can then host that web site yourself, through one of the many services such as Register.com or godaddy. They charge a small monthly fee for parking your web site at their location.

If you want to increase your ranking on search engines such as Google you can hire a company to do search engine optimization (SEO). They perform certain adjustments to your site that cause the search engines to rank you higher. The higher you get the more time your page is seen. The more people call, the more clients you get.

There is another way. There is a company called Thomson Reuters that has a business selling web sites to lawyers. The call it Findlaw. The Findlaw salesperson goes around to lawyers and sells them web sites that it will then create and host. It is not inexpensive.

For instance the salesperson will go to a law firm in a community and tell them if they spend, say, $25,000.00 per year on their web site, they will have the biggest web site in the area. It will have more pages, more content and therefore attract more traffic. Let's pretend the lawyers are in the medical malpractice field.

Under the Thomson Reuters/Findlaw program there is nothing to keep the salesperson from going to the medical malpractice law firm down the street and selling them a bigger, better web site for $26,000.00 or, frankly any price they want, and knocking the original law firm's site down in the rankings.

When representatives of the company are questioned about this they always promise that if the lawyer will just wait a little while, and of course pay the monthly tab of about $2200.00 while they wait, the web site will move up.

I mean, they do create impressive web sites. But what good is a great web site if no one sees it? As an example, in September of 2008 there were a total of 81 visits to the site. That costs about $27.00 to get one visitor to the site. I'm guessing I could go around and give people $5.00 and they would click on the site. That would save me about $1,800.00 per month.

I won't even go into the story of how Thomson Reuters changed the name on the web site and included my name and the name of a man who left the firm while omitting to list my partner's name in the title.

Since I am totally unhappy with Findlaw, I sent them a cancellation notice. They said the notice was invalid and I would have to stay committed until August of this year. So until August of this year I will be obliged (although I do not think I am) to pay $2200.00 for a service I do not want from a company I do not like who is right this minute trying to sell a web site to another lawyer in the same community while promising them every effort to get them higher rankings on the search engines than my site.

I was a little confused about the company's response to my cancellation until I discovered that they they had to layoff 240 people in their legal business in December. It seems things are tough there. I can understand why.

2010-01-11T17:55:00.003-06:00

Yesterday morning I went to Court in St. Louis County. As I walked up to the appropriate building I noticed that it is called the "Justice Center." Who names these things?

In the building is the jail, two small associate courtrooms, the offices for those courts and the Prosecuting Attorney's Office. Just who is it in that building that is concerned with Justice?

I noticed that the City of St. Peters is building a huge complex near its old police station. And what does the sign outside say? Well the building namers in St. Peters, not to be outdone by St. Louis County, are calling their building the Justice Center. I will bet you that during the lifetime of that building there is more injustice that takes place in it than justice.

That is the government way. It is propaganda. If they tell we, the people, it is a justice center we will believe it. And so those who drive by, those who never have to go inside to be questioned by some over-agressive police officer, or those who never have to face a trumped-up charge will think that those buildings are indeed what they claim to be.

Justice is a biblical concept. The law is not particularly concerned with justice. There are few in the office of a prosecutor who are seeking justice. They are seeking conviction. There are few defendants awaiting trial who are seeking justice. They look for acquittal.

I have seen the criminal justice system, that's what we call it, change dramatically through the years. Most defense lawyers now are just trying to see what kind of deal they can cut. The criminal defendant who comes in and says, "Hey, I did it. But I'm not pleading guilty. Let's go to trial. I'll take what I get," is quickly disappearing.

Young lawyers are showing their own distrust of the system by not having the guts to go to trial. They start looking for the deal the minute the client walks in the office. But a plea bargain is not always the best way to go, even if the client is guilty.

In a recent possession of methamphetamine case the jury found the defendant guilty but only sentenced her to twenty-one days in jail. That beats the heck out of five years probation any day.

Well, sorry. I am off to Montgomery County this morning. My twenty-two year old client has her second DWI pending. She was on probation on her first one when she got this one. The prosecutor has offered a probation with a suspended execution of sentence. But there is a 180 day back up.

For you non-lawyer types that means if she violates her probation she has to serve 180 days in the county jail. I don't think she can make it on probation. She doesn't think she can make it on probation. The worst she would get if she goes to trial is 180 days.

Right now the state wants her to plead guilty and agree to the deal. I say go to trial. If she gets found guilty and gets 180 days she is in no worse circumstance. Because if you are twenty-two and have your second DWI you are most likely not going to last two years without violating the terms of your probation.

By the way, the name of the building in Montgomery County is much more transparent. Out there they just call it "Courthouse."

2010-01-05T19:11:00.000-06:00

It is a new year and I have not had a minute free. Usually this is a slow time. It started with a fast pace and does not seem to be slowing down.

Today started in Warren county and was followed by St. Charles County. I am not the only one who has that kind of schedule. There are generally a few of us that show up in these counties, only to meet up again later in the morning in another county for another docket call.

Tonight I will hit the Tri-County Labor. It pays to know what organized labor is up to in the county. They are re-establishing themselves as a powerful force in St. Charles County.

Had lunch today with a cop from one of the surrounding municipalities. That always leads to interesting stories from the field.

I have been unable to strike a deal in the medical marijuana case. That means we will have a trial, unless there is a significant change of view on one side or the other. The judge has already ruled that we cannot use medical marijuana as a defense. That is going to make the case all the more interesting.

Happy New Year to all of you. Let's get to work.

2009-12-20T07:23:00.003-06:00

In the October term of 2008 the Supreme Court of the United States decided the case of Melendez-Diaz v. Massachusetts. In a nutshell the case held that it violates a defendant's VIth Amendment right to confront witnesses against him when the government brings in a lab report of an expert and not the actual expert to testify about the results of the lab report.

Under previously established precedent, and frankly just common sense, the court has said that a witness's testimony is inadmissible unless the witness appears at trial or, if the witness is unavailable the defendant had a prior opportunity for cross-examination. Many are surprised to learn that it took a Supreme Court decision to explain that to the trial judges. But once one appears in front of a few trial judges, the surprise goes away.

Too few trial judges are concerned with giving the defendant a fair trial. Too many trial judges are concerned with giving the defendant a conviction. And so it goes.

I was feeling pretty good about some of the decisions of this Supreme Court in spite of my feelings about some of the people on it. I hope I am not wrong. Yet, today I learned about a case out of California that has made it onto the Supreme Court's docket that gives me concern.

Ever since the Melendez-Diaz case the State Attorney's General and prosecutors all over the country have been whining about how hard it makes their jobs. You should be aware that, at least in this insatnce, Missouri has been ahead of the curve. They have always made the lab technicians appear, at least for the trial. That rule is waived at a preliminary hearing. I can live with that.

But at trial a lab expert has to appear and tell about the procedure that led to his or her opinion that the substance is what the report says. That gives the defendant's lawyer an opportunity to cross-examine the expert. Admittedly most defense lawyer do not have the slightest idea how to cross-examine the expert and they get nowhere. The opportunity should still be afforded the defendant.

On January 11 of 2010 that may be on the way out the window. The New York Times reports that The Supreme Court is hearing oral arguments on a case that raises question about how lower courts may carry out the precendent.

Many states already complied with the Missouri procedure before Melendez-Diaz. They did not go bankrupt complying with the Constitution. But as many as 26 States have joined in a friend of the court brief saying it is too time consuming and thus too expensive to protect the rights of criminal defendants as afforded them by the VIth Amendment.

These cases do not get a lot of attention. The public seldom learns about them. The public seldom cares about them. That is until they or their loved one gets charged with a crime. Then, well, you'd think it was a big deal.

Pay attention, people.

2009-12-16T08:59:00.003-06:00

One of my stops yesterday took me to the City of St. John night court. I haven't been there in years. Hardy Meneese is the city prosecutor. Put him on the list of guys who know what they are doing. Hardy has held the post for almost as long as I have been practicing law. He must be doing something right.

Hardy's dad and my dad were in the radio business together, or at least at the same time. They worked at different stations but were contemporaries. They did different types of work. I always enjoyed listening to Hardy's dad, Charlie.

One of the lawyers in attendance was a guy by the name of Steve D. Brooks. I have never met Steve before. He is most interesting. For one thing he plays piano. He has a jazz band. He seems very intelligent and sincere. He is a good story teller. I like that in anybody.

He amused me with his stories of how people will invite him to a party and then ask him to entertain the rest of the guests by playing piano. It reminds me of how people will ask me if I will bring my friend and client Chuck Berry to their party, and oh, by the way, could he play a few numbers?

While we waited we talked about a number of things. Apparently he started cutting his elderly neighbor's lawn one day. He wasn't asked to do it. He just does it; trims and edges, too. Heck I admire that because I don't even edge regularly around my lawn and I'm not too keen on mowing.

He reached in his briefcase and came out with a brochure about a non-profit organization he started. It is called Adopt-A-Yard St. Louis. It's mission is "To provide free basic lawn service to low income seniors; ensuring their independence is maintained with their homes without sacrificing other basic life's necessities such as food and medicine."

In a nutshell he gets volunteers to provide simple lawn services to low income elderly people. He got the idea because his mother, who lives in another town, was being charged horribly high prices for her yard work. He used to send her the money.

I tried, but failed, to get him to adopt my lawn. Before I could make a fool of myself by saying I would send a donation he cut me off. He isn't looking for donations. He is looking for volunteers. Here's the catch, though. He isn't looking for school kids. He wants professionals like lawyers to volunteer their time and establish actual relationships with these people.

Steve figures it wouldn't take more than an hour to cut a lawn. But when he talked about it I could hear more. He believes that these efforts would help to establish relationships between the giver and the recipient. And he is right.

I don't know how successful this endeavor will be. Lawyers are an odd bunch. I know as much as I like the idea, I will not go out and cut someone's grass. I hate lawn work. I might deliver a meal, or do some other task. But I cut too much grass from an early age all the way through college. I can't stomach the thought of taking on another lawn.

And lawyers are busy. We are busy with our practices and our families. I was in court from 8:30 yesterday morning in Lincoln County, went to Warren County, St. Charles County, St. Louis City, St. John Municipal Court at 6 and then St. Peters Court where my trial lasted until 10:00 p.m. Not everyday is that bad. But when the weekend comes, and I finish up at the office on Saturday, I am ready to relax. I am sure many other lawyers have just as hectic lives.

On the off chance, though, there are lawyers out there who want to join what I think is a great effort, I mention it here. The brochure lists Kim Stanley as the Volunteer Coordinator. The number listed is 314.830.4363.

I wish Steve the best of luck. My hat is off to him. Keep this in mind, though. If you invite him to a party, please don't ask him play the piano for the other guests.

2009-12-15T05:54:00.002-06:00

I have noticed through the years that some Judges have a habit of scolding a defendant at sentencing. The Judges seems to have an irresistible urge to make a little speech right before they send someone to jail.

Now if a Judge is putting a person on probation I can understand a little "scare the hell" out of the defendant talk. Something along the line of "I am giving you a break here, numbnuts, screw up even a little bit and I am sending you to jail."

However, when a Judge is sentencing a defendant to a lengthy prison sentence, I say give him or her the years and move on. There is nothing to be gained, except the Judge's own sense of self-satisfaction, by giving the defendant a lecture. I rarely see this done in Federal Court. Yet, I see State Court Judges do it all the time.

It looks a little bit like playing to the crowd. What purpose does it serve, other than let the Judge feel good about what he is doing? Does the Judge really think the defendant cares what he has to say at that point other than what the sentence is? Defendants think the Judge is the enemy. (Many times the defendant is right). They don't think anything of value is going to flow from the Judge's mouth.

I can assure the Judge that the defense lawyer is not at all interested in the excess verbiage. It all sound like a garbled transmission at that point. Maybe it is a way for the Judges to twist the knife a little bit.

I am not a Judge. Maybe when they go to Judges' school they are taught this annoying trait. Or maybe they become enthralled with a sense of importance. Maybe they think that their words flow from a special fountain of wisdom and should be shared with the world.

Whatever the motivation, I say, save the speech for the Rotary Club.

Speaking of Judges, there are quite a few Judges in St. Charles County up for re-election this next election cycle. Not all of our judges deserve to be re-elected. More than one should just voluntarily step down and find a new line of work. But re-elected they will be unless some good candidates step forward.

Urge your favorite good lawyer (not some putz who can't otherwise make ends meet) to run for judge. The pay isn't great but the job provides the opportunity to make speeches to people going to jail.

2009-12-13T08:20:00.003-06:00

The Governor and some of the legislators in Missouri are doing their best to pander to the general public over the issue of drunk driving. Of course, I couldn't be happier. The more draconian laws that are passed, the more money I make. Want to make it illegal to text? Go ahead. Want to make it illegal to have an open container in the car? Go ahead. Want to make me rich? Go ahead.

Truth be told, I think we can probably make it as a society on about one tenth of the laws we have on the books now. But it seems that this society that hates lawyers wants to pass a law about every possible human vice (sometimes it isn't a vice until there is a law passed against it) imaginable.

So listen to this hit list:

Require repeat DWI offenders, drivers with a BAC of .15 or above, and drivers who refuse to submit to a blood-alcohol to be charged in State Court rather than municipal court. (This is a slap in the face to every municipal prosecutor there is by telling him or her they cannot properly enforce the laws.)

Create enhanced penalties for those found guilty of having blood-alcohol levels of .15 or above.

Making it a crime to refuse to submit to a blood-alcohol test. (Oh, yeah, don't worry about that damned Vth Amendment. That has only gotten in the way of governments taking away your rights for years. Go ahead Governor Jay, just ignore the Bill of Rights.)

Expand the use of Ignition Interlock Devices in more cases. (I see some pockets being lined here. I mean somebody has to rent the drivers those machines, don't they?)

There are other little provisions that sort of pile on the defendant after the case is over. You know, now that the government has him down, they come up and kick him a few times. It really helps restore a citizens feelings of self-worth. But, hey, government is not about treating citizens fairly. It is about getting re-elected.

All of this, by the way, will do little to limit drunk driving. The recession has done more to limit drunk driving than anything. People can't afford to go out and drink. If they do have money for booze, they stay home and drink. First of all it is cheaper. Secondly they don't have jobs to drive home from so they aren't out on the roads in the first place.

But DWI is the hot issue right now and all of the politicians will be running on stopping drunk driving. Ah, there must be an election coming up.

2009-12-09T16:13:00.003-06:00

It was as cold when I headed out to New London this morning. I had court there on a case that started out as a Felony Endangering the Welfare of a Child. Today we were there to dispose of the case. It was reduced to Peace Disturbance for a fine of $250.00. We appeared in front of the Honorable David Mobley. Everybody was happy. It shouldn't have been filed as a felony in the first place.

The wind was blowing so hard I saw at least two cars off the road in circumstances that could only have been related to the wind. Each accident seemed recent. The Highway Patrol was on the scene. They do a good job of accident assistance and a poor job of crime investigation. They continue to try and expand their crime buster role, though.

When I came back that afternoon I had to go to court in St. Charles County. As I strolled from courtroom to courtroom I ran across Assistant Prosecuting Attorney John Bauer. I promised him, over his objection, that I would mention him in this blog. Everyone protests when you tell them they will be mentioned. Look, John, this may be the only benign mention you get here, so enjoy it.

I did have a pleasant experience with one of the other assistant prosecutors and managed to resolve a case upon which we had been working for quite some time. Hey, any time you can resolve a case pleasantly with a prosecutor is a good day. Prosecutors are like wine. They get better with age. The new ones are too inexperienced. They have no idea of the value of a case. They want more for the case than it is worth.

An experienced prosecutor understands so much more about life, the legal system and all that goes into the handling of a case. Give me a good, experienced prosecutor any day.

2009-12-09T02:21:00.005-06:00

Tuesday was supposed to be spent taking the depositions of three Highway Patrolman in a case in St. Francois County. I knew there was a chance of rain so I wanted to get on the road early. I decided I would skip breakfast and grab a bite when I got to Farmington.

I set out at the appointed time and headed off for the trip. It isn't that far. The weather cooperated for the most

part. It started to rain the further south I got. But it never really got bad.

I arrived in plenty of time. I drove around Farmington for a few minutes and took in some of the sights. They have a nice old Courthouse. Although Farmington has grown rapidly, I could not find a good old greasy spoon. Plenty of chain restaurants but I can eat at those near my house.

The next picture is of the Huddle House in Bonne Terre, Missouri. I had the opportunity to stop there for breakfast on the way back. I am not the only lawyer in this lawsuit. One of the other lawyers cancelled the deposition the day before. He did, indeed send me a fax about it. It did not come in until after I left work on Monday.

Huddle House got the nod since it was convenient, not because it was unique.

Plans change. I figured it was good opportunity to go visit the accident site and do a little investigation. Everything else went as planned except for the discovery the Huddle House does not serve oatmeal.

2009-12-04T22:21:00.004-06:00

The story of Amanda Knox has captured the attention of a lot of Americans. Today, in Italy, she was found guilty of murder. It is a compelling story.

I have not heard one bit of the evidence. I have no opinion as to whether or not she did what they say she did. We in America believe that we have the best system of justice in the world.

We are always suspicious of foreign courts. This case does nothing to remove those suspicions. The press here in this country painted a very sympathetic case for Amanda.

The case is going to be appealed. I have a feeling that an appellate court will reduce the sentence or set her free in some way.

In any event there has to be a true feeling of sorrow for her family.

2009-12-03T15:22:00.002-06:00

I want to thank Kelly Kerr for this one. A woman has been arrested and is being prosecuted for taping Twilight in a movie theater. She was apparently fiddling with her new video camera and taking vids of her sister's birthday party.

In the process she taped about three minutes of the movie. As you all know it is against Federal, and in this case State, law to shoot video of movies in theaters. Well, technically she did.

I think this case is going nowhere. But I have a few cases I am working on that should never have been filed and they were.

This girl spent two days in jail before some judge finally had the good sense to let her out on her own recognizance. The movie theater owners are the ones who want her prosecuted. I sure hope the prosecuting attorney uses his head and doesn't file charges.

2009-12-03T11:09:00.003-06:00

The St. Charles County Sheriff's Department has its K-9 Unit out on I-70 at Foristell again. That should come as no surprise. I have handled any number of drug cases that came to me as a result of that operation.

It is sort of bogus. The cops always claim to have a legitimate reason to stop the people other than the fact they are latino. The dog always seems to alert on the car. Of course we never know how many times the dog "alerts" and the cops find nothing.

I had that happen to me when I was coming back from Texas on my motorcycle. I pulled into a drug checkpoint on purpose just to see how it was run. I didn't tell the deputies anything at all. They walked the dog around mu bike and announced it had alerted and they had a right to search. After a few minutes of going through my dirty socks and underwear (the ones in the bags on the bike, not the ones I was wearing) they decided it was some kind of a mistake.

They deputies at Foristell once stopped a young African-American lawyer I know. He was coming back from court. The cops had to do some fast talking to explain why they stopped him when they found out he was an attorney.

And so it goes. Give a police department grant money to look for drugs and they will violate citizens' rights to earn it.

2009-12-03T05:35:00.006-06:00

I was reminded by my good friend and one of the finest lawyers in America, David Hamilton, about the sad truth that the legal profession is quickly shrinking . He is a regular reader of many things.

One of them is a Blog called Mendelson's Musings. A particular entry caught his attention and he passed it on to me. As David points out in his email those interested in entering the legal profession need to read last week's Missouri Lawyer's Weekly.

I sure would not counsel anyone to enter law school right now. This profession, just as many lines of work, is not going to be as easily profitable for some time.

With that in mind, I am off to Montgomery County this morning on a drug case and then back this afternoon to meet with w new DWI client. It helps to have a referral base of lawyers and former clients that has been built up over 35 years.

Newcomers beware.

Who Was in Danger Here?

2009-11-27T10:50:00.003-06:00

Went to New London on Wednesday before Thanksgiving for a preliminary hearing on a case of Endangering the Welfare of a Child. It was one of the weakest cases I have ever seen.

The man charged had spanked his stepdaughter. That's all. Clothes on. Nothing tawdry about it. She is about eight years old. She started screaming "I can't breathe." So somehow the cops found out about it and they decided to make a big case out of it.

The girl's mother didn't want the guy prosecuted. The girl, eight years old, didn't have much of a say but sure didn't understand what all the fuss was about. Still my client was facing up to seven years in jail for a Class C felony.

We were ready and willing to go to trial. But right before the preliminary hearing started the State had a stroke of common sense. We were offered the chance to plead guilty to disturbing the peace and pay a fine of $250.00.

To be honest, the cost of going to trial, and the off chance that my client could possibly be convicted made this an offer we couldn't refuse. It is a shame this case was ever filed. The resolution accomplished nothing other than taking a few hard earned dollars from my client's pocket.

Guns N Hoses

2009-11-26T14:11:00.006-06:00

I went to the Guns 'n Hoses event last night. It was great fun. In case you don't know about the event it is an annual boxing match between local police and firefighters. It is to benefit Backstoppers.

There were fifteen fights each lasting three rounds of three minutes each. The quality of boxing isn't that great. There were maybe two matches that had guys in it who knew much about boxing. But, still, it was good entertainment.

A St. Charles County Deputy took part. I can't remember his name but as I recall he won his match.

The event is well attended. It is more of a social event than a boxing match. I went out to get a drink and there were probably more people in the concession area than there were in the seats. The event attracts a lot of young people and there are easily as many girls as boys.

In the end the firefighters won more matches the the cops. It was close. It was worth the thirty dollars for admission. Beer, however, at $10.00 a cup was enough to keep me from drinking at all.

Gimme A Shot At It Anyway

2009-11-24T05:41:00.005-06:00

I am off to court today to try and talk a judge out of cutting off my client's defense before we even get to trial. My client is accused of growing marijuana. If he did grow it, it was because he needs it medically. I think the jury ought to know that.

The State doesn't. Why? Because they are the State and they don't think that defendants should be able to explain away their actions. If the State says they are guilty, that should be enough. (See my November 23, 2009 blog titled "At Last"). So they have filed a Motion In Limine. They want the judge to order me not to bring up the medical issues during trial.

The State does have a case from the Court of Appeals that supports their position that I might not be able to get a jury instruction on the issue. But I still feel that we should be able to bring it up during the trial.

I'll report back.

At Last

2009-11-23T21:42:00.002-06:00

I have been shouting like a voice in the wilderness for thirty-five years that the criminal justice system has lost its way when it comes to protecting the rights of individuals charged with crimes.

For that same amount of time most judges have peered over their benches at me much like a bull looks at a bastard calf. (I have to thank the late Mo Stokes for that saying). Sadly, in my opinion, too many judges think that they are on the side of the Government when it comes to handling criminal cases. It is sometimes like having an extra prosecutor in the courtroom.

But it isn't just judges. The legislators have to give the judges and the prosecutors the ridiculous laws to administer. And nowhere do they do it more than in the Federal system.

Did you know it is a Federal crime for an illegal user of controlled substance to own or possess a firearm? I don't mean to have one tucked in his waistband while he is selling meth. That is illegal under this particular law. But so is it illegal for a guy to be taking a hit off a joint outside the baseball game (should that even be a crime?) and to own a hunting rifle that is at that very time in his locked gun cabinet in Troy, Missouri, or anywhere else for that matter.

That's right. It's a Federal offense. Time in the big house. Leavenworth perhaps, or Marion.

That is why I was just thrilled when I read the New York Times today. I've waited years for the political right to get onboard. I can remember telling a judge in St. Charles County years ago that enforcing the Bill of Rights is actually the conservative thing to do. She looked at me for a minute, actually thought about it and then sort of dismissed me as a left wing commie who only wanted to undermine the nice little system that seems to work so well for the "haves."

I never thought I would live to see the day when Ed Meese and Dick Thornburgh shared my views about how the Government had gotten out of control when it comes to criminal laws.

I am going to go to bed, now. I am afraid if I stay up much longer someone will convince me I was only dreaming.

Nice to have you guys along, Dick and Ed. Try working on the side of freedom for a while. It really will make you feel better.

Friday at Home

2009-11-20T20:13:00.002-06:00

It's Friday night. It has been a good week. Lots of new cases while I had some interesting court appearances. If I have time next week I will say more about a case I have about assaulting a law enforcement officer.

This is a case that begs to be tried. I can't believe that twelve people would find a man guilty under the circumstances of this case. But I have guessed wrong before about what juries would or would not do. That is why we always leave the decision to plead guilty or go to trial to the client. I am not a fortune teller.

In another case the state finally reduced a felony property damage to the misdemeanor it should have been in the first place. Those cases always cause me problems. A client comes in and they are charged with a felony. That ups the ante for them. But I can tell from the first appointment that this is just a misdemeanor offense.

So, how do I set the fee? Do I set it as a felony case or as a misdemeanor case? It hardly seems fair to charge for a felony, even though that is the charge when the case is so clearly a misdemeanor. I can never predict whether the prosecutor will finally see the light of day and reduce it to a misdemeanor.

In fact in this case it was transferred to an older and more experienced prosecutor who finally made the decision to reduce the charge. If that hadn't happened it would have gone all the way to the end as a felony and we would have had to have a trial. That would have been a much greater expense to my client.

I mean we are in this profession to make money but we are also in it to serve the people of the State of Missouri. It's just a question I have.

Had some good judge experiences this week. Not bad. That is not always the case. Election time is going to be on us sooner than we imagine. There are quite a few judge slots up for grabs in St. Charles County. Not all of the judges who are on the bench right now deserve to be there. The question is whether there will be good candidates to replace them. Just as important is whether the lawyers in St. Charles County will have the guts to stand up and oppose the judges who are in office that deserve to be replaced. Time will tell.

That's all for tonight. Calling it quits for this week. I generally go to the office on Saturday but tomorrow I am going to play golf instead.

Defendants are People, Too.

2009-11-19T12:34:00.004-06:00

Today has found me running from St. Louis County to St. Charles County, a break for lunch and then back to St. Charles County for a preliminary hearing.

I have been advised that the St. Charles Courthouse crew has found this blog. I'm not sure how that will affect what I write. Probably not at all. It is what it is.

I did tell Todd Ryan that I was going to mention his name in this blog. Just keeping my promise, Todd.

The great news I got from the prosecutor the other day has been changed somewhat. Now he thinks he might have been too reasonable. That is one of the things about prosecutors. A lot of them go out of their way to keep from looking or sounding reasonable. They seem to think that the defense bar is trying to get something over on them.

That's a problem in our system. It always seems to have to be a win or lose situation. Too often that is the attitude of prosecutors. Many times everybody is best suited with a reasonable compromise. Many times only one side is being reasonable.

Going Well

2009-11-18T12:50:00.002-06:00

Things are going well when judges act like they really understand the rigors of practicing law. Today I was in Court in St. Charles County. I was at a morning docket. It begins at 9:00 a.m. I also had some cases on the 1:30 p.m. docket.

The cases on the afternoon docket were only going to be passed. I did not have enough information about the cases to resolve them. I needed more time.

The judge for the afternoon docket had not arrived. That meant I had to either come back at 1:30 and continue them or find a way to continue them without the judge.

St. Charles County has tightened up their rules and procedures. I am not sure why. It is not as easy to get a case passed as it once was. I suspect it is because some lawyers abuse the system. My dilemma was to find a judge who had the good sense to grant a continuance on the case even though it wasn't in his division.

I've been practicing for over 35 years. I think I enjoy the reputation as a lawyer who moves his cases through the system in an efficient manner. That should be worth something. Today it was. Terry Cundiff, the Judge in Division 6 was on the bench. I approached him and asked for the continuances. He looked at my memo's and with little hesitation passed the cases to a new date.

All of this might not seem like much to non-lawyers. It is just nice to find a judge willing to make a decision out of the box. It was the right thing to do. you'd be surprised how often judges just won't act in that situation. Good for Judge Cundiff.

I am fequently critical of judges. I have been critical of Judge Cundiff in the past. I have watched him mature as a judge. I have seen a lot of changes for the good. In an effort to be fair, I feel it is necessary to give credit where credit is due.

Cow Town?

2009-11-17T23:08:00.002-06:00

I love to travel. I used to make rather frequent trips to New York City and even a fly to Europe a lot more often that I do now.

One of the ways I would travel so often was the American Airlines Fare Savers. They would show up in my email each week. It was not unusual to find a round trip to New York for $198.00. I would clear my schedule, make a reservation and go.

Truth be known, the flight to NYC was not really the expense anyway. I stayed, on more than one occasion at the Plaza. That would run about $600.00 per night. Throw in a couple of Broadway shows and dinner at Four Seasons or Balthazar Restaurant and the costs ran out of control anyway. But it was the fun of getting the cheap fare that I liked.

Now American Airlines barely flies out of St. Louis. We still call it Lambert International Airport. What a joke.

I got an email this week from American. It told me that I could get flights (one way) for $58.00 to certain cities. I checked. I can fly to Cleveland for $58.00 each way. I think I could probably get an Amtrack to Chicago for that price. Oh, St. Louis! What have we become?

My Surprise

2009-11-17T22:28:00.002-06:00

Okay, I have to admit I was wrong. I got to court and the prosecutor, with who I have no rapport, was so reasonable that I feel I must be missing something. He was friendly, cordial and offering a deal we couldn't pass up.

I felt as though I had eaten a magic mushroom and was in a world foreign to me. Of course, we accepted his generous offer. I would like to tell you that it was as a result of my good lawyering. I am not sure that even I would believe that.

The offer was fair to both sides. It took my client's actions of walking into a place with a handgun and put it into the same perspective I had. I mean, I recognize that walking into a business with a loaded handgun is not good form. Robbing the place does become problematic. But it doesn't mean we should all get bent out of shape about it, does it?

Not a bad day after all. So I ended it with dinner and drinks at Brio in the company of one of my sisters and my wife.

Armed Robbery

2009-11-17T11:50:00.002-06:00

Okay, it may not be as racey as missing panties (see, there's that refernce again) but this afternoon I have a preliminary hearing on an armed robbery. Sad situation of a young kid who just fell in with the wrong group. He has managed to draw the most miserable prosecutor he could for this case. I am sure this is going to be another all out battle.

Panties? No But It Helps

2009-11-17T07:29:00.003-06:00

Look, I admit it. I have a service that tells me how many people come to this blog on a weekly basis. I'm like most bloggers, I want to be read. So imagine my surprise when I logged on this morning to find that my readership had gone from, well, a small smattering of friends and clients to a rather large number of people from around the world. I mean if I kept numbers like this, and kept growing like that, the blog would be quite well known, in no time.

So I did an analysis of who came to the site and why. Well, the most popular article was the one that included the term "missing panties."

Oh, damn. I thought people were reading this blog because of the high level of legal content and compelling story telling.

So, I have learned my lesson. The words "missing panties" will show up a whole lot more. Even if they have nothing to do with the story.

Monday Blahs

2009-11-16T14:45:00.003-06:00

It's been a strange kind of day in some ways. Maybe it's just the weather.

Today started with a client calling at 8:30 in the morning from the Warren County Courthouse. He was wondering where I was. I explained that I was no where near there and asked him why he was there. He thought his court date was today. When I got back to the office I checked. We had sent him a letter telling him to be present on December 1, 2009. He didn't know why he was there today. But at least he cares enough to show up at all. Some don't.

I had a telephone conference with a Prosecuting Attorney about a rather important case I have going. They are all important. This one has widespread legal consequences. The conversation was extremely productive. I think we may have made some steps toward getting the matter resolved in the best interests of all concerned. At least he was willing to consider my proposal.

Now I am waiting for a telephone conference to begin on another case. It should not be a long call. This will be more in the nature of conveying information.

But there is plenty else to do. I just got in some Motions from the State on a medical marijuana case. They want the Court to order that I can't use my evidence. Well, of course they want that. That Motion won't be heard for a couple of weeks. Time to buckle down and do some significant research.

Okay, time to go. Got to make the phone call.

Herman Hospitality

2009-11-14T12:15:00.002-06:00

This morning I got a call from a man in Massachusetts. He has a DWI in Gasconade County he wants me to handle. No problem. He had a funny story to tell, though.

It seems the night he was pulled over in or near Herman, Missouri, the jail was full. So, the cops put him up over night in a local hotel. He could not stop talking about how nicely he was treated. They did not charge him anything extra for his accommodations. The next morning they picked him up at the hotel and drove him to his car.

I guess they are doing what they can to stimulate the tourist trade. Get 'em drunk, arrest 'em, treat 'em nice, invite 'em back by means of a ticket. Seems to be working. He will be coming back. maybe he can stay in the same hotel.

Friday Night

2009-11-13T21:26:00.002-06:00

It's a Friday night. This has been a good week. Whats makes practicing law a good week? Generally it is the feeling that I have actually been of some service to to clients.

Sadly that is not always the case. Many times at the end of the week a lawyer can feel that he has done nothing more noble than holding his inadequate finger in the dike of oppression.

This week was good, though. I met with more new clients than usual. These were all people who really needed some help. These were not criminals. These were people who had made mistakes. Some got drunk. Some got angry. Some got stupid. But none of them are bad people. Most of them remind me of a young man who was fortunate enough not to get caught during his periods of stupidity and went on to, well, went on to at least survive.

Friday is never my last day of work for the week. I always finish with a Saturday or Sunday catching up on necessary paperwork. But this Friday I feel a sense of satisfaction I don't always have. It is a nice feeling. I made some new friends this week. I met some people I can help. You can't ask more than that.

People Change, or Do They

2009-11-13T07:20:00.002-06:00

Many years ago there was a lawyer who managed to get himself a reputation as a guy who wasn't playing with a full deck. He dropped off my radar for a while and I had not heard any recent stories about his antics. Then one day, out of the blue, his name showed up as the Prosecuting Attorney of a certain venue.

Whoa! This guy as a prosecutor! I didn't know what to think. This could be good. Even though he had a reputation as being a little whacky he had been on the criminal defense side for a long time. Maybe he was a guy who could see the folly in some of the ways of prosecutors. There is a lot of folly in the ways of prosecutors, especially in St. Charles County.

Anyway, I am sad to report that this guy is as whacky as a prosecutor as he was as a lawyer in private practice. I won't go into details of the case. I am sure there is some canon of professional ethics that I would violate by doing that.

Suffice it to say that this guy and I have a totally different viewpoint about the purposes of the criminal justice system. He has adopted the attitude that is seen in so many new prosecutors. They think that they are going to change people. They want to save them from the errors of their ways. For instance, in some situations prosecutors will refuse to allow a defendant to plead guilty and pay a fine, or even do a little time in the county jail because they insist on the defendant being on probation.

Too early in the morning to get started on this. I'll miss court. I've got to get going. Prosecutors, get a clue. You are not going to save the world. You are not going to save people from themselves. You are just lawyers, not social engineers. Look at the facts. Be fair. Prosecute the case. Move on.

Missing Panties

2009-11-10T08:52:00.002-06:00

I have a client who works as a maintenance man at a local apartment complex. The St. Charles City Police are bullying him. It's that simple. Here's the story.

A few days ago some girls called to have their locks changed. They said that somebody came in their apartment and took a pair of panties and a neglige. My client showed up and changed the locks. He talked to both of the girls. They were both there when he changed the locks.

Earlier that day he had been working in an apartment across the hall. One of the girls now claims she took the dog for a walk that day and left the door unlocked. They now opine that it was then that my client must have let himself in to steal the lingerie items.

So the police showed up and questioned my client. He spoke with them. He was honest with them. They asked why his fingerprints would be in the apartment. Now keep in mind the police did not know whether his fingerprints would even be in the apartment because they had not dusted for prints. And they certainly did not have my client's prints.He explained that he had been in the apartment to change the locks.

The police then told him his prints were in the bedroom and that the girl had a videotape of him in her bedroom. He said, unequivocally, that his prints were not in the bedroom and that there could be no video of him in the bedroom because he wasn't ever in the bedroom. He figured that at most his prints would be on the door and the kitchen table where he placed the lock and tools while he worked.

The police knew then that they were lying to him but they think it is okay for them to lie. So they then asked him to take a polygraph (lie detector). He was going to do it. But his father knew a lawyer and called him for advice. They lawyer called me and I said no way. I called the cop and told him that my client was done talking.

Now the police keep showing up at the apartment complex and asking about him. They have told the management that they are treating this as a sex crime. They are trying to harass my client into confessing to something he did not do.

Sadly this is not an unusual police tactic. Each day we slip one more small increment into a police state. It is not visible to most. It is visible to me. It bothers me a lot.

Maryland Heights

2009-11-10T08:40:00.002-06:00

It is almost a pleasure to go to the Maryland Heights night court. I mean it can never be a pleasure going to night court. It is, after all, "night" court. It happens at a most inconvenient time.

When I was a much younger lawyer it was inconvenient because it interrupted Happy Hour. It really helps if one does not show up for night court drunk, especially the lawyer! Now that I am older, night court can even interfere with something as drastic as going to the gym. Go figure.

Many night courts are poorly conducted. They have long lines in which the lawyer must wait to see the prosecutor. Then there is another long line to come before the judge. That is followed by another long line to pay the court costs.

Maryland Heights was so efficient last night I almost felt like we left something out. I got there, the clerk gave me the file and then handed me the necessary forms I would need to fill out. No guessing.

The forms are well designed. Even if a lawyer had limited experience with Maryland Heights night court it would be easy to figure out the forms.

The judge took the bench on time, called the cases that had attorneys and out we went. The Judge is Kevin Kelly. He is respectful to the lawyers and the clients. That is important in the justice system and not always the case.

So, out in a flash, I decided that rather than go to the gym to workout, I would take my wife to dinner. My hat is off to the Maryland Heights Court. More municipalities should look to them for guidance.

Please keep in mind, I have nothing good to say about certain members of the Maryland Heights Police Department.

Kingdom Of Callaway

2009-11-08T14:28:00.002-06:00

Last week I had the unfortunate experience of going to Court in Callaway County, Missouri.

Fulton is the seat of Callaway County. It is about a two hour drive from my home. Due to a small calendar screw up by my secretary I was about ten minutes late for the ten thirty docket. Not to worry. When I arrived the Judge was still calling the nine o'clock docket!

I spied a lawyer I know from St Charles County. She was sitting on a bench and so I sat down next to her. She informed me that as far as she could tell the judge was calling through the docket in alphabetical order.

That would make sense to most people. But generally a judge will have an attorneys' call. The attorneys who have cases are allowed to go first. That allows them to get through the docket a little earlier and be on their way.

That would not have changed my situation as she was still calling the nine o'clock docket, no matter who she took first. It did affect me when she started the ten o'clock docket. My client's name started with "S".

It's funny how things are done differently in almost every county in which I practice. St. Charles and St. Louis Counties have a pretty efficient system. Lawyers get there, get their paperwork in order and then approach the judge. It allows lawyer to handle cases in different Divisions and sometimes even get to more than one county in a morning.

Clearly the lawyers in Calllaway County are used to their system. I wasn't and don't think I ever could be. I guess I am just too hyper. I almost crawled out of my skin as I sat there and watched everybody on the docket, represented or not, parade before the judge until my case was called.

It will make me think long and hard before I ever take another case in Callaway County. I finally got out of there at twelve thirty.

In addition, I called the prosecutor's office on the way up to tell them I might be a little late. The lady who answered the phone was downright rude. Maybe it is just the prevailing attitude in Fulton. I don't know.

Go Cardinals

2009-10-28T10:33:00.002-05:00

I just returned from the City of St. Louis Courts where I have a client who was indicted for forgery. It has to do with a St. Louis Cardinals Baseball game. He is accused of using an altered ticket to gain admission to the Cardinals Championship Club during a basebell game last season.

He was invited to a game by some co-workers. It seems they had forged the tickets. They admit, now, to having done it at least three other times. My client had no way of knowing it. But because he used it, and because they were discovered, the Grand Jury indicted him.

I am confident in the outcome of this case. We will prevail.

Ridin' Around In My Automobile

2009-10-27T06:58:00.002-05:00

It's Tuesday morning. My cousin Jasmine has been in town for the National Film Challenge and it is my job to get her to the airport on time. A simple task under most circumstances but for the fact I have to be in Court this morning for a Bond Reduction Motion.

That means we will leave home, go in the opposite direction of the airport and first go to court. Then we must keep our fingers crossed that the bailiff brings the incarcerated client over from the jail in a timely fashion. It isn't really the bailiff's responsibility to bring him. The bailiff "orders him up" so to speak. Then the prisoner transportation guys bring him over.

As you might imagine, my need to get Jasmine to the airport on time does not even cross the mind of the bailiff or prisoner transport. So it is all a matter of luck. If they bring my client over in time I can pull this off. If not, Jasmine may be going to the airport in a cab.

One way or the other I have to get to the office and close a deal about using a client's piece of music in an automobile commercial. The terms are already hammered out but the finishing touches need to be added.

I have worked on the National Film Challenge all weekend. I would like to get some quality sleep and soon.

Obstreperous Forever

2009-10-22T10:45:00.002-05:00

There is a prosecutor in St. Charles County who is just known to be a royal pain in the ass. I mean he is a pain on every case. I am not just talking about his attitude on the case itself, his attitude on everything is a pain.

Today I showed up in Court on a probation revocation hearing. My cient is being revoked in St. Louis County and St. Charles County. When I last spoke with him he was in jail in St. Louis County. In that circumstance it is the obligation of the State (St. Charles County Prosecutor's Office in this case) to make arrangements to have him transportred here for court.

I noticed that he had not been brought over. So I filled out a memo to have the case passed to December 10, 2009. I took the memo over to this particular prosecutor so he could sign off on it. His first reaction was to look at me and snarl, "Why should I agree to pass it?"

Well, the reason he should agree to it is because he did not bring the guy to court.

I wanted to just tell him to kiss my ass. But, I pointed out to him that the client was not there. He then, in a less than endearing way, demanded to know why not.

I explained it to him. He grumbled as though it was my fault for not reminding him. Then he grudgingly scrwaled his mark on the memo.

I know he is going to be miserable all day. He always is.

Trying to Mislead

2009-10-17T08:50:00.003-05:00

When did you first hear the term "person of interest" in connection with a criminal case? I have read that it may have been used as early as 1996 in the Atlanta Olympics bombing in connection with Richard Jewel. I know for me it was during the George Bush administration and it had to do with the anthrax investigations. Steven Hatfill was the first "person of interest" I really recall. John Ashcroft kept using the term every time he was interviewed about the case.

Now I don't like John Ashcroft. He lied directly to me one day long ago when he was Attorney general of the State of Missouri. It wasn't even a complicated lie. It was a straightforward lie about something he said; something I was witness to his saying.

That's beside the point sort of. The term person of interest is one of the catchy phrases that law enforcement has come to use. Once the Feds started throwing it around you could be sure that some two-bit sheriff in some place that god had long forgotten was going to weave it into his rather limited vocabulary. Sure 'nuff.

Now one hardly ever hears about a "suspect." The police who use the person of interest term think they are preventing a criminal defense lawyer from asking later at trial something like, "Well, officer, you had three other suspects didn't you?" And, I guess they are.

So what we have done (we being criminal defense lawyers) is substitute the term "persons of interest" in the above question. Then the cops sit there on the witness stand and try to explain the difference between "suspect" and "person of interest." It always intrigues me to hear those descriptions.

The press has picked right up on this term. They readily use it. But then I guess if the cops call a suspect a person of interest that makes them one rather than the other. Doesn't it? The quality of the press has declined so much in recent years that nothing surprises me about what they do. And they wonder why nobody is reading newspapers anymore.

St. Louis City Courts

2009-10-16T15:20:00.002-05:00

I just spent a few hours in the Municipal Courts of the City of St. Louis. It is startling that anything gets accomplished.

The Court was due to begin at 1:30. The courtroom opened promptly and within a few minutes the clerk came out. He announced that nobody had delivered his cases. They never did arrive while I was there. I was attempting to get a warrant withdrawn.

To do that I had to go to a room down the hall and take a number. The one clerk who was working at one of the three potential windows serviced all of those waiting. That included lay persons and lawyers. Everybody had to take a number and wait.

She explained what I needed to do. I went back to the courtroom, filled out my memo and then waited for the judge. He never did show up. Fortunately there was a judge sitting in a nearby courtroom. he was nice enough to sign my memo.

Then I had to return to the clerk's office and take another number.

The process tok about 90 minutes. Eventually I got it done. It reminds me why I hesitate to take cases in the venue.

No SIS

2009-10-15T22:37:00.002-05:00

I learned today that it is the practice in Callaway County not to recommend an SIS on first offense DWI Cases. That seems a little strange.

I represent a young man who blew a .088. He was not driving erratically. He was pulled over because his license plate was not on the front of his car.

The prosecutor has offered him a fine of $300.0. I recommend that he take it. The plea, even if it is an SIS will be used against him if he gets another DWI. The probation is usually a hassle. So why not take the conviction, anyway?

The client asked me to look into the SIS so did. We had already won his DOR case and he won't suffer a suspension because of that. The prosecutor said, "No deal." He can plead open if he wants. The judge could give him an SIS but the judge could sentence him to jail for six months on an open plea.

The prosecutor would not even cap the plea at the $300.00 fine if he pleads open. If the kid had the money I would set it for a jury trial. But, he doesn't.

My guess is he'll take the fine. Callaway county has always been a pain to deal with.

Troubling

2009-10-15T07:56:00.002-05:00

Heard a story yesterday about a Judge in St. Charles County. If the story is true it is troubling both because of what the judge is doing and also because of the lack of judgment in doing it. There is no way that I can independently verify what I heard. Maybe it is just rumor. There are always lots of those around courthouses.

Empty Courtroom

2009-10-13T08:20:00.002-05:00

The guy I wrote about recently took a plea deal. It was a great deal. There is no question about that. The charge was reduced from a felony to a misdemeanor. Pretty darned good.

But since he did plead guilty what happens to the poor judge who kept saying that the reason the case had to go to trial as scheduled was, among other things, that it was the only case scheduled that day? Now that courtroom is going to be empty! Oh my gosh.

That is just part of the horrible posturing that goes on to try and stick it to people charged with crimes or who are on the "wrong" side of the law. Sadly, most judges I know do not engage in the "presumption of innocence." They may say the words but most of them don't believe it in their hearts.

Justin Bieber

2009-10-12T09:56:00.003-05:00

There is a kid on the Today show this morning named Justin Bieber. He is playing guitar and singing. Little girls are screaming and carrying on in such a way that one would think this guy is some huge attraction.

I guess by definition he is. However, I sure cannot understand why. Oh, I know, that makes me sound old. Okay, I am old. I am certainly old by comparison to Justin Bieber. But honestly, he is not a god singer. Maybe he can play guitar well. I can't judge that based on the little that I have seen.

The streets around the NBC headquarters are filled with little girls who are probably not in school because this is Columbus day. There were kids waiting around the studio at 4:30 a.m. The screaming is annoying. I think that many of them are screaming because the Today show staff is whipping them up.

As one of the hosts mentioned she had never even heard of this guy until last week when his name hit the schedule. Justin Bieber is from Canada. His fans were described by Hoda as pre-pubescent. They were. How would they even know about him?

It has to be an Internet phenomenon.

There really is no point to this rant. Thanks for dropping by. Oh, by the way Michael Jackson has released another song. Tour dates will be announced later.

Venting About Judges

2009-10-11T22:41:00.003-05:00

It is always dangerous to vent about judges. As an attorney I can get disciplined for criticizing judges. That doesn't seem to make sense does it? I mean if a judge is screwing up somebody has to say something. Most of them think they are the last word in legal knowledge. Sadly many of them are out of touch with what the lawyers who appear before them actually do.

Recently I appeared before a judge on a case that was set to go to trial in about a week. I had just been hired to help out the lawyers who had previously been handling the case. When I reviewed their work I found it to be competent. Still, there were a few things that I thought should be done before trial.

The client was charged with a felony. Serious stuff. It could carry a sentence in the Department of Corrections. So, I scheduled a conference with the judge and the prosecuting attorney who was handling the case for the State.

Now I expected the prosecutor to object to the continuance. It is knee-jerk in many jurisdictions for the prosecutors to object to anything I want to do. They act as though if they don't object I am getting something over on them. That just comes from lack of experience and lack of self-confidence. They either get over it or get ulcers. If they don't get over it I am just as happy for them to have ulcers.

Some judges are the same way. This judge sat there and looked at me as though I was asking for a pardon. I explained that this was a serious charge and that justice would be served by letting the defendant fully present a defense.

The judge was having none of that. After all, it was pointed out to me, this was the only case on the docket for trial that day. What? I can go up to the courthouse in St. Charles County on most days and not find a case being tried. Suddenly this judge acts like there has to constantly be a trial going on at every minute of every day. I mean there is at least one judge in St. Charles County that hardly ever makes it to court on time. It is rumored that this judge is even late for jury trials. Now all of a sudden we have to have a trial because there won't be any other scheduled for that day!

Well, this is the type of stuff that trial lawyers have to endure. We are frequently in front of judges that have such little practical experience they think we are getting over on them when we ask for something.

Oh, well, it isn't going to get any better unless we get some lawyers with experience to run for office.

In the meantime I will throw in the names of Justin Timberlake, Madonna, Michael Jackson and Beyonce to get my blog site a little higher on the search engines. It is a cheap trick, but it works. See you next time.

Speech! Speech!

2009-09-17T07:53:00.007-05:00

If you read this blog long enough you will see that most Judges annoy me. Unfortunately when one practices in a region that has elected Judges one sees repeated instances of Judges "playing to the crowd" rather than being interested in being an impartial figure in the justice system.

Since I am an attorney I am restricted in the criticism I can make about Judges. Should I make a potentially offending criticism about a Judge, the ultimate decision as to whether I can lose my law license is made by a panel of, you guessed it, Judges.

So when I read the St. Louis Post-Dispatch this morning it made me stop and think. There were two articles about sentences that were imposed in as many cases. One was a child sexual abuse case. The other was a case involving a chronic DWI offender.

Both of the cases had the same Judge. This is a man I have known since he got out of law school. I am happy for him being a Circuit Judge. In Missouri it is like hitting a mini-lottery. The pay is pretty good. It is certainly steady and the retirement plan cannot be beat.

In many jurisdictions the people who take the job of Associate Circuit Judge or Circuit Judge are lawyers who are having a tough time making it in private practice. The stated earnings numbers are not impressive. And so, the job is handed off to some young, inexperienced lawyer because none of the older, experienced and successful lawyers want the job. That's sad.

What people fail to calculate is the value of the retirement plan. It cannot be equaled in the private economy except by a very few lawyers who make a lot of money early in their career and sock it away year after year.

Well, I digress. The point of this story is that some judges feel the need to make a speech when they sentence defendants. This must come from watching too much television or movies when they were kids. Or it could come from the perceived need to make a public statement so the voters can read about it and know how "law and order" they are. A lot of judges take pride in having that reputation. You know the old "hanging judge" reputation.

I prefer a judge who is known among members of the bar as being smart, courteous and fair. There are far too few of these. You could take a poll of lawyers who regularly practice in the courts and there would be fewer of the latter than the former. A judge can hand out a stiff sentence and still be smart, courteous and fair. But rather than strive for that reputation, many judges want the word to go out how hard they can be.

Well I have gone on too long about this subject. I just want people to know that, in my opinion, judges who speak out too loudly and too often are often trying to mask their inexperience and cover it with "wise words." I say, do your job. Pass sentence. Let it go. You are already sending this person off to the penitentiary, why do you think they want to listen to what you "think". If you are simply pandering, why not start you remarks with that disclosure?

Tonight I want to add the names of Kanye West, Jay Leno and Dog the Bounty Hunter to this post simply because it will increase the Google positioning. Cheap? Yes.