So what Gives?

Basically, I have not been having a good month...which is a pity since I usually like November. I faced a rather extensive practice change, followed by a sudden political upset. (No I wasn't on any ballot, but I wanted the other guy to win). Plus I faced a variety of minor upsets from cleaning up vomit on the carpet to flat tires to fights with friends and family (and they are all probably connected somehow). As a result, I really haven't been thinking about law or anything else related to current events, law, or policy lately.

I know that I have about 2 dedicated readers, and some search engine traffic wholly based on my misspellings, so I thought I would put in a little notice about what happened and why I am out of commission. The dark art will continue, however, it just needs some time off. As for me, I plan to spend some time in the woods without any computers for a while.

For the time being, however, I am going to join the muggles.

No Dice

as in , no roll of the dice--as in no trial.

The prosecutor came down a few years and dropped some aggravating factors, and suddenly the client remembered that he did commit the crime. In 4 years or so he will be eligible for parole. It's like college for criminals. A few years hard time, and a "go back to jail free" card in the form of parole violations.

I'm not saying this wasn't a good outcome. It is a pretty good deal if the guy did what he is now saying he did. If we lost at trial he most likely would have gotten more. Ten years is a long time, though, even if you only have to serve about half inside.

So *I* didn't lose, but I didn't win either. As for client, who knows?

Out again

I've been preparing for another trial lately, which should start today, meaning I will probably be sparse with blog entries for a while. Wish me luck.

Bush policy on "Enemy Combatants" Faces a New Setback

U.S. District Judge Colleen Kollar-Kotelly ruled that the Government cannot refuse detainees access to attorneys, and that it is not a matter of governmental discretion what limits there are on their meetings.

Decision here

SCOTUSblog

What is a Nonjusticiable Political Question?

When I was studying for the bar exam, one of the guaranteed answers you would see on the multistate was "The court cannot review this action because it is a political question." I was told to never choose that answer as a guess because it is never right. I guess we are going to see whether the judges in Texas set to decide on political gerrymandering decide to go with nonjusticiable or maybe just “C.”

In a case from last term (Vieth v. Jubelirer) and an older case (Davis v. Bandemer) the Supreme Court has indicated that there might actually be circumstances where political gerrymandering (redistricting for political purposes) might be constitutional. The opinion in Vieth was written by Scalia who is never afraid to call it as he sees it, and he points out that “[i]n Davis v. Bandemer, 478 U.S. 109 (1986), this Court held that political gerrymandering claims are justiciable, but could not agree upon a standard to adjudicate them.”

Frankly I don’t understand Vieth, but it is coming back to haunt the recent re-districting in Texas. My prediction is that this is not going to change anything. It might even make it worse for Democrats in Texas. While I usually don’t vote Republican, I think I can tolerate it in the name of democracy. After all, the south has always been solid, but it hasn’t always been Republican.

In a final note, I just want to copy a footnote from the Vieth Opinion:

A delicious illustration of this is the one case we have found–alluded to above–that provided relief under Bandemer….In Republican Party of North Carolina v. Hunt,…the district court, after a trial with no less than 311 stipulations by the parties, 132 witness statements, approximately 300 exhibits, and 2 days of oral argument, concluded that North Carolina’s system of electing superior court judges on a statewide basis “had resulted in Republican candidates experiencing a consistent and pervasive lack of success and exclusion from the electoral process as a whole and that these effects were likely to continue unabated into the future.” In the elections for superior court judges conducted just five days after this pronouncement, “every Republican candidate standing for the office of superior court judge was victorious at the state level,” a result which the Fourth Circuit thought (with good reason) “directly at odds with the recent prediction by the district court,” causing it to remand the case for reconsideration.

Vieth, footnote 8

News: Chron; SCOTUSblog

High Court Grants Cert on Public Display

The Supreme Court of the US is going to review public display of religious documents for the first time in 25 years. The cases involved include a Texas case where the Ten Commandments were displayed on public grounds. The Fifth Circuit held that it was permissible because it was one of many monuments, and something about the secular value of the Ten Commandments. The other case is one from Kentucky where they displayed the Ten Commandments, but also added other secular historical documents.

This is going to be interesting. The general question likely to be answered is whether the display of a particular religious symbol can be made into non-endorsement by context. Randall Kallinen is quoted in the San Antonio Express (sub) saying that this case could affect the Harris County Bible Case. It will depend, however, on how the court defines the issue. The Bible, first of all, is not a historical legal document; it is unabashedly a religious text. The issue appealed by the County (as best I can tell) is whether an explicit religious symbol can be used in a monument without any other context.

I think the biggest losers in this case will be the Christian establishmentarians who have championed the posting of the Ten Commandments as a way to bring religion into public life. I think even if the court allows these displays, it will be for the express reason that the context removes the implication that religion is being brought into public life.

News: AP; Chron

Harris County Bible Case Pre-Season Report:

No real news on the Harris County Bible these days, but I thought I would put out some of the background stats on the players.

The case is currently pending in the 5^th circuit court of appeals, docket Nos. 04-20667, 04-20732, and 04-20742. Kay Staley’s attorney Randall L. Kallinen is still on the case (and also a big player in the local ACLU, though I don’t think the ACLU is officially involved in this case). Also filing an appearance on her case is Ayesha Khan and Richard Brian Katskee, both of whom are affiliated with Americans United for Separation of Church & State, a D.C. based group that advocates separation issues.

Ayesha Khan is the legal director of the organization, and has been lead counsel on several similar cases including Doe v. Foster (about school prayer in Louisiana), and recently heavily involved in part of Glassroth v. Moore, the case that brought about the removal of the Alabama courthouse ten commandments and its advocate Justice Roy Moore. Richard Katskee is the assistant director of the organization. He is formerly of Mayer, Brown, Roe and Maw (their bio of him here), and has been a law clerk for the 9^th and 2^nd circuit. These three certainly have credentials out the wazoo.

On the other side is Harris County Attorney Mike Stafford (R), represented by Bruce S. Powers, Assistant County Attorney. Unfortunately I can’t find any info about Bruce Powers right now. (Disclosure: I voted for Stafford, and I probably will again).

Also associated is the Star of Hope Mission, who’s unsuccessful attempt to intervene produced this rather scathing order. It is represented by Benjamin W. Bull and Josua William Carden (apparently with local counsel Michael G.Tapp) of the Alliance Defense Fund Law Center, an organization devoted to opposing ACLU action related to Church and State (really--read this). I do not have the actual documents, but it appears that SOH has been kicked from the lawsuit on appeal as well, though one of the cases on the docket might be their appeal of that order.

So metaphorically we are in the pre-season of the appeal. The attorneys and their clients are pretty much set, but the arguments are just being formulated. You (and I) should be prepared for a couple of years before this issue is really settled, unless the county decides to settle. (I say county because I see little chance that Staley will change her mind). Hurry up and wait.

No reason to fear a lawyer-president

A nice (for lawyers) editorial in USA today about the next potential president and the history of lawyer-executives.

SCOTUS blog is reporting on the US response to the Supreme Court ruling that it cannot indefinitely detain individuals without charges. Apparently the legal strategy of the US is to argue that they didn't really lose, and that the only thing they have to do is tell the court that they think someone is an enemy combatant and then they have the right to hold them indefinitely.

This issue came to my attention a while ago (from the same blog) when I discovered that the "tribunals" that were set up not only prohibited the accused from having a lawyer, but actually (I kid you not) required that people who might be involved swear that they were not a lawyer. Yes, the Bush administration has determined that lawyers are so evil that they cannot be present under any circumstances, even when other third parties can.

This pisses me off. Lawyers are not evil and their very presence does not make anything worse off. There are bad lawyers and good ones. Remember it is not only private lawyers that are prohibited, but government lawyers, military lawyers. I fear that this rule only contemplates the horrible truth that lawyers advocate for unpopular clients and--more importantly--force the powerful to follow the rules they create. If these trials are anywhere in the vicinity of fair, they would have nothing to fear from lawyers being present.

While I am the first to admit that lawyers can be a burden to a society, it is no different than the burden imposed by the very rules the lawyers enforce. The government’s position in these cases is scary because it shows the willingness of the government to dispense will all rules and procedures in order to accomplish their secret goals. We are not talking about giving up some civil rights for security; we are talking about completely refusing to protect even the most fundamental rights of individuals. The government is asking to court to validate its claim that it can do anything it wants. That includes holding them, torturing them, raping them, sadistically mutilating their bodies. “No rights” means anything goes.

All I can say to that is that some truths are self-evident, “…that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” The Supreme Court recognized this in Hamdi and Rasul, and I am embarrassed that my government still refuses to accept it.

Nader is off the Ballot in Texas

Well it is pretty much official. The Fifth Circuit has denied the Nader appeal leaving Mr. Nader off the Texas ballot for the November election. The only possible event now would be intervention by the SCOTUS, which I find to be as likely as Mr. Nader winning the election in November.

FSGs Out?

Tom Goldstein at SCOTUSblog seems to think the Federal Sentencing Guidelines will not be maintained in their current state, and based on the other blog news (How Appealing, Sentencing Law, Blakely Blog) that seems to be where this is headed. There will probably be some sort of middle ground, but the real question remains what are they going to do about all the cases that have already been decided or are currently on appeal? There are a lot of people in prison and on their way that will be directly and substantially affected by the court’s decision in this case.

Blakely's Back - First Monday

The Supreme Court of the United States is back in session, and is hearing a case that should decide whether Blakely spells the end of the federal sentencing guidelines. While this issue has not been felt as keenly in Texas (due to our archaic dependence on those curious petit jurors), this will have a substantial effect on the entire country's criminal policy. This issue is very well covered at the Sentencing Policy blog or a brief summary of the opinion and its effect on criminal justice by Professor Douglas A. Berman (as well as a compilation of usefull information and links).

Keep a lookout, however, for news on this very important subject.

[On a related note, in a previous post I misspelled Blakely v. Washington as Blakley v. Washington. Normally I would simply ignore my spelling errors (of which there are many, I assure you), however I have had significant search engine traffic from that misspelling. Hopefully this post will serve to correct to forlorn as well as note my own problem with syntax.]

I'm Back

Yes, I have returned to scan the internet for more legal news and offer my badly spelled opinions on it.

On a personal note, I have received a great victory through no particular fault of my own. It is an interesting part of my profession that one can win without really trying, and one can try without any hope of winning. At least this time, however, my client is happy and I am happy.

Hiatus

The purveyor of this fine literature is unavailable due to professional reasons. All signs point to a very trying time.

"Terri's Law" is Illegal

Once again, I find myself straying into the territory of foreign jurisdictions. The Florida Supreme Court issued a ruling yesterday invalidating Jeb Bush’s law which prevented the legal guardian of Theresa Schiavo from removing the feeding and hydration tubes from Ms. Schiavo, thereby causing her death. (Opponents call this “starving her to death,” which is also true; difficult decisions such as this can always be cast in a drastically different light using synonyms with different connotations.)

The court held that the law in question:

…as applied in this case, resulted in an executive order that effectively reversed a properly rendered final judgment and thereby constituted an unconstitutional encroachment on the power that has been reserved for the independent judiciary. P15-16

They also found that “the Act is unconstitutional on its face because it delegates legislative power to the Governor.” P18

This was a particularly compelling opinion for me, especially at the end when the court waxed philosophical about the role of law in society. It is particularly relevant in this current time of contempt for the judiciary, where every day someone is attacking judges for exercising their role as arbiters of the Constitution. Difficult, unpopular decisions must be made by someone, and it is inappropriate to respond with a knee-jerk “activist” label every time a judge makes a decision one disagrees with.

My compliments to the Florida Supreme Court, and good luck in the coming fallout.
Justitia fiat coelum ruat.

Bush v. Schiavo

News:

BBC NEWS Americas Coma woman intervention 'illegal'
Newsday.com - National News
NPR : Florida High Court Rules Against 'Terri's Law'
New York Times

A Statement by Ms. Schiavo's Non-custodial family

Harris County Bible Update

Below is an editorial by an anti-judge activist mentioning our local fight. She seems to think, however, that the answer lies in jurisdiction stripping...or removing the jurisdiction of federal courts to hear these cases.

HUMAN EVENTS ONLINE :: God and the Activist Judges by Phyllis Schlafly

That is a bunch of bullshit. That would mean only state courts can now rule on the first amendment issues? Or better yet, it would mean that the government can now establish an official state religion by simply preventing an article III judge from hearing the issue. There is a potent force in the current government that wants to do just that with many social issues. They seem to think that it will be permissible to violate the constitution by preventing the judiciary from reviewing their actions, and apparently they haven't read Marbury or any other damn court case. It is clear that what they want is a religious government, not to exercise any sort of equality. Funny thing, the founders of our country expressly rejected a religious government. Therefore, there will be no Sharia in the US, and no council of vicars, and no Pope.

The reality of the situation is that judges wrestle with complex problems and almost every single one of them (and certainly the ones at the top) do the very best they can in any given situation. This spate of jurisdiction stripping bills is probably nothing more than a publicity stunt, but it is also a symptom of a society that is pushing the limits it made for itself. Every time someone says the courts should not be able to decide this matter need to review the way the system works.

If you don't like the constitution, change the constitution. Quit trying to figure out end-around methods of bypassing the method already established to do that. If it fails, then you will be forced to worship the Ten Commandments on your own time.

That rant aside, I would like to point out that the actual appeal on the Harris County Bible case is only about whether the monument on the courthouse grounds was put there to show a preference for Christianity, or was it placed there by a third party to memorialize a Christian’s contribution. All this other stuff is nothing but sound bites.

Of course it got me worked up, so maybe they are accomplishing what they wanted.

Appellate Antics

Brought to you by The Legal Reader;

While I usually restrict my posts to Texas and national issues, here is a fascinating opinion on the delicate art of getting one's appeal heard on the merits. This hits very close to home for me as I am currently facing a loss on the appellate level due to an action by the trial court that was unforseeable and may well be jurisdictional.

DeLay aides indicted

A grand jury in Austin Texas has returned 32 indictments including 3 top aids to Tom DeLay and several major corporations including Sears for fundraising activities. The District Attorney in Travis county (where Austin is) is not known to fear Tom DeLay (or anyone else), so we can be sure there will be something to come from this, although probably not before the next election.

HoustonChronicle.com - Republican fund-raising leads to indictments of 3 DeLay aides
Austin American Statesman

Also Check out Roman Candles and Daily Kos and Off the Kuff for some indie views

"Unusual" probation

Dallas Morning News is reporting what it calls "unusual probation." It seems a man got probation in his trial and the judge was a little upset, enough to include a year of jail and some rather strenuous requirements including a limit on the horsepower his vehicle may have.

While I understand the strange and creative terms some judges have for probation, I wonder mostly about these limitations in the context of Blakely. Has the judge in this case offered such constricting probation requirements, including a year in jail (six months real time), so as to constitute an enhancement? Keep a look out for cases like this. While I feel certain the Texas CCA will come down in the most conservative position, even they are bound by Federal law. Watch for an appeal on this.

Here is something from SCOTUS blog about the McCorvey case.

Roe v. Wade II fails at the 5th Circuit

The Fifth Circuit has denied Norma McCorvey's (formerly known as Jane Roe) petition to re-litigate Roe v. Wade. This is the second death of the case, which I would liken to digging up grandpa and begging him to go home with you. The method her lawyers chose to contest Roe v. Wade was a rule 60(b) motion, which allows the party of a suit to petition for relief after judgment has been entered, primarily due to changed circumstances, new evidence, or something like that.

Basically, the court said that Texas had repealed the statutes criminalizing abortion by implication, and therefore Ms. McCorvey has no case or controversy thereby prohibiting the court from even considering her appeal (i.e. it was moot). There was a concurring opinion which basically blasted Roe v. Wade for evidentiary reasons, but otherwise simply said what almost everyone in the legal community already knew. That case is over with.

It remains to be seen if the Supreme Court will choose to accept this case. I would put tremendous odds on them declining any cert, but they COULD if they wanted to. What is particularly interesting (or perhaps ironic) is that Roe v. Wade was decided by the Supreme Court because they created a new exception to the doctrine of mootness for that case. Will they do it again? My money is on no.


Court's Opinion
HoustonChronicle.com - Bid to reopen landmark Roe v. Wade case fails

Harris County Bible Case Documents Online

The Southern District of Texas has now put the documents from the Harris County Bible Case online for free.

Southern District of Texas Notable Cases Home

Harris County Bible Update and Opinion

Here is a nice editorial by J. Francis Gardner (sub) in which he advocates for what he calls the "nativity compromise." This is a rather well established method these days for government to put up religious symbols as long as there are symbols from other religions that give it context and prevent the implication that the state is establishing a religion. See Van Orden v. Perry, 351 F.3d 173 (5th Cir., 2003)(Rehearing denied by, and Rehearing, en banc, denied by Van Orden v. Perry, 89 Fed. Appx. 905 (5th Cir., Jan. 5, 2004).

Gardner offers three options:

Add the Torah and the Koran to the case with the Bible (sectarian context).
Add the Code of Hammurabi and the Magna Carta to the case with the Bible (historical context).
Leave the monument as is but arrange for Jewish, Muslim and non-aligned charitable groups to donate their own memorials at the same or similar sites around town (secular context).

These options make sense, were the issue one of context or of presentation. The problem is Harris County has not shown any interest in presenting this bible as anything other than a monument to a specific person, and arguing that the County cannot censor the religious statements. These are the very arguments that were rejected by Judge Lake.

If Harris County was interested in compromise, however, they could consider the third option. Simply make courthouse grounds (perhaps the park planned in front of the new civil courthouse) available to other groups to put up their monuments. Given the religious and cultural diversity in Houston and Harris County, it would not take long for Hindu, Buddhist, Jewish, Islamic, and atheist groups to offer up monuments to their local heroes. They could take down the current monument until such time as other monuments are ready to be placed, and then put them all in at the same time. The appeal would (probably) be moot, and the cost of prosecuting the appeal would likely be commensurate with the cost of execution of the compromise. In the context of other monuments, the Bible would probably lose its special status as an establishment of religion, and may very well become simply a monument to Mosher.

I realize that this sort of compromise is not the kind sought by either side in this appeal, but I think the County should consider its role of representing ALL the people, not just the Christian establishmentarians.

Back in the Saddle Again

I have returned from my brief trip to Portland a little bit wetter but otherwise unharmed.

Vacation

Dark Art will be on pause for a week or so while I visit the dark and wet land.

Harris County Bible Update

There is an interesting letter in the official publication of the Texas State Bar, the Texas Bar Journal, vol. 67 no. 8, September 2004, page 614. Alas, I cannot link to it because as far as I can tell there is no online version. (Stifle your collective shudder--that is the way things worked for a long time.)

To avoid plagiarism, let me summarize Mr. Riga's arguments.

First, he points out that Judge Lake correctly applied the Lemon test. He goes on to argue, however, that the Lemon test is defective "in that even if there is a promotion of a particular religion, if that promotion is open to all religions or no religion, such a non-coercive religious symbol should be permitted. Only when such a symbol is offensive per se or coercive or intrusive should it not be permitted."

He raises an interesting issue, one that may come up later. Should the Supreme Court revisit Lemon? I will be interested to see if Harris County raises that issue on appeal.

Harris County Bible News Update

An editorial in the Houston Chronicle, and a story written by a guy from San Antonio and published in an Indiana Paper?? Woman battles to remove Bible from courthouse. I wonder what the connection is with Indiana?

Also a little editorial by Seth.

Satire is Permissible in Texas

The Texas Supreme Court has ruled that it is indeed permissible to satire public figures. While this might seem like a no-brainer, I never underestimate the Texas Supreme Court.

Opinion here via How Appealing

Ralph Nader Denied Texas Ballot

A little info for the interested. HoustonChronicle.com - Judge rejects Nader's bid to get on Texas ballot. There is also some good info about the hearing here by the Austin Chronicle. If I get some time I might look around for the opinion & order, which is always interesting (to people like me).

Harris County Bible Case Update

Well you know I have ways of finding things out...

Anyway, no news on the Bible front. Over the last few days the parties have been fulfilling the requirements for appeal, filing notices and requests and the like. For any real geeks, the appellate information is: Court of Appeals Docket #: 04-20667; Filed: 8/23/04; Nsuit: 3440 Civil Rights: Other; Staley, et al v. Harris County TX, et al; Appeal from: Southern District of Texas, Houston; Lower court information: District: 0541-4 : 4:03-CV-3411; Ordering Judge: Sim T Lake, III, US District Judge.

If you have just found this site, I have posted most of the opinions and orders at various times, so look through the archives if you want copies.

The next thing we will see is a decision (or possibly a request for more arguments) on the 5th Circuit's decision about whether they will stay the removal of the Bible during pendency of the appeal.

Al French Suspended for Lying

As noted by Seth Al French has been suspended for lying to his boss about something other than John Kerry's war record, specifically an extramarital affair. As I indicated in my previous post, I think this kind of mistruth (like the previous), while perhaps not particularly offensive in and of itself, causes great concern for the cases he has and is handling.

Just in case anyone is wondering, most lawyers are not like that.

State's first public defender quits after 30 years

A great lawyer will move on today, apparently missing most of the fallout of recent decisions. Roland Dahlin has been a federal public defender for 30 years and by all accounts has been a substantial force for justice.

HoustonChronicle.com - State's first public defender quits after 30 years

Boat Debacle Swiftly Deepens

Alfred French, a deputy district attorney from Clackamas County, Oregon, has apparently discovered the perils of being both a lawyer and a public figure. Mr. French, a decorated Vietnam veteran appeared in one of the Swift Boat Veterans for Truth ads, and also swore out an affidavit claiming that John Kerry lied or at least exaggerated his military service.
He later made public statements that he was relying on the word of his former fellow soldiers. Unfortunately for Mr. French, the affidavit he swore out included the necessary statement that the facts therein were personally known to the affiant. In response the Oregon State Bar has received several complaints, and is investigating the matter.

Assuming the complaints are true, Mr. French stands to lose much more than face. Rather minor mistruths (or perjuries) are quite often overlook for the non-lawyer, particularly in political discourse. Attorney's, however, have a higher obligation which extends beyond their professional activities. In my opinion, that is the whole reason Law is a licensed profession.

If Mr. French simply overlooked the language of the affidavit, I think he should be sternly reminded of this fact with a public reprimand. If he intentionally mislead the public, I think the Oregon Bar should take more drastic action. At the very least, I think the Clackamas County District Attorney needs to review Mr. French's caseload and assure that these sort of exaggerations/mistruths are not jeopardizing defendants. On the other hand, if these allegations turn out to be false, I hope the Oregon Bar will make a public statement to that effect. People can be wrongly accused, particularly in a bitter debate such as this.
In any case, I hope other attorneys involved in contentious political issues (including John Kerry himself) will be very careful to maintain the credibility of the profession.

Critics of prosecutor in ad go to state bar; Discovered in How Appealing

Also Props to Seth (also here) and Atrios for scooping me on this. I have been busy with the Bible...

Bible Case News

The San Antonio Express News has a good story about the Bible case including some great quotes from parties involved (and also those trying to be involved), and some more details about the death threats and hate mail directed at the plaintiff from the Christian protestors. Alas, it requires a subscription, so if anyone asks, I am now 55. You can also check out this note in the Texas City Sun

MySA.com: Free Subscription

I love thememoryhole. According to that site the Justice Deparment has chosen to classify/censor portions of the ACLU's filings including a quote from a SCOTUS decision from 1972. I wonder if they will start infiltrating law schools around the country to prevent such subversives as law librarians from distributing such dangerous material.

The Memory Hole > Justice Department Censors Supreme Court Quote

Since there is no news on the Harris County Bible front today, I decided to read somthing else. Check out this excelent editorial by noted legal scholar/journalist Dahlia Lithwick about the Abu Ghraib...um...issues.

The New York Times > Opinion > Dahlia Lithwick: No Smoking Gun

A little editorial by the Chronicle.

HoustonChronicle.com - Bible study: County judge wasting tax dollars on needless appeal

Some news stories about the Bible

News about a removal protestor; Some quotes from Mongomery County officials (a neighboring County); The Chronicle's Story;

Bible Case News and Analysis

So the apparent timeline is this: Over a year ago, Kay Staley files this action. At the time, the Star of Hope Mission was aware of the action, and even offered evidence at trial. They did not, however, prosecute that petition. Just after Harris County lost the case, the SOH began to consider the implications (See my previous post here) they were contacted by some interest groups and filed a new motion to intervene.

Yesterday, Judge Lake issued a new order denying the motion to intervene which, based on the legal principals it uses, is not likely to be overturned. That ruling held in part:

Simply put, Star of Hope’s argument that an order requiring the removal of its bible from the Mosher Monument was “never anticipated” is not credible. This assertion is only believable to the extend [sic] that Star of Hope is stating that it “never anticipated” that the County might lose. But a failure of imagination is not germane to the law governing intervention. If Star of Hope was genuinely concerned about protecting its rights in this litigation, it could have and should have filed a motion for leave to intervene long ago.

Memorandum and Order dated August 25, 2004.

The essence of the order is that because the SOH is simply arguing that they didn’t know they were going to lose, they have no right to intervene now that they have.

Judge Lake continues, however, to address a couple of other issues, which could potentially be interesting on appeal. First, in response to the SOH argument that intervention is necessary to protect the free speech and free exercise rights of SOH, Judge Lake responds that the County had indeed raised those issues during litigation, and points out that legally to intervene, SOH must prove that the County has oppositional or at least different interests than their own.

In response to the SOH argument that the ruling would result in to loss (“conversion”) of SOH property (the Bible), Judge lake responds that SOH “can simply send a representative over to the Courthouse grounds with a key, unlock the glass case, and remove its Bible, or a Star of Hope representative can stand by while the County removes the Bible and then take immediate possession of it.” More interesting though is this statement which seems to preclude some appellate arguments altogether: “Because the Bible is on County property, the County has represented to the court that, although it does not own the Bible, it has the authority to remove it or even the entire Mosher Monument at any time.”

My Analysis and Opinion

I think that this judgment will likely stand. Given the number of protests, media coverage, and the fact that members of SOH were called as witnesses during trial…coupled with the fact that SOH only petitioned for intervention when they found out their side had lost, the judges decision that the motion is untimely will probably be upheld. Furthermore, I think as a matter of pure justice, it seems clear that the County is out to protect the rights of the religious minority here. Stafford has made public statements to the effect that he thinks this case is about the County protecting the rights of religious people to express that religion. He certainly could have taken a different interpretation and suggested that this case is about protecting the rights of non-religious people from state endorsement of religion, in which case the intervention would make more sense.

To summarize, other than being wrong in my prediction (and I hate being wrong), I think this is a good result and that no one will be substantially impaired.

Star of Hope's Motion to Intervene has been Denied.

HoustonChronicle.com - Star of Hope rejected as party to suit in Bible case

Judge Eckles, who is the executive officer of Harris County Texas, has issued this press release about the case.

For those of you that are not familiar with Texas government, the County Judge is a quasi-judicial and quasi-executive position. In Harris County the judicial function of the County Judge has pretty much atrophied, but elsewhere the sitting County Judge retains certain judicial functions including some probate matters and civil claims. There is some information about the officer here, provided by the Texas Association of Counties.

Bible news:

Todays news from the Houston Chronicle and the Waco Tribune (Associated Press)

Well so much for my prediction. It looks like the 5th circuit will stay the judgment long enough to hear an argument about it.

HoustonChronicle.com - Bible can remain at courthouse at least for now

Barring 5th Circuit intervention, the Bible is on its way out.

Well it's official. Harris County (via the talented Frank Sanders) has filed its notice of appeal. They also filed an Emergency Motion to Stay Final Judgment, which was summarily slapped down by the judge in this three page order. What this means is the County must remove the Bible from the monument before midnight tonight unless they are granted an emergency stay from the 5th circuit.

There are three or four elements that Harris County must show to be granted a stay of the injunction requiring the bible be removed (from Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir. 1981).) It must show a likelihood of success on appeal, irreparable injury to the County if the stay is not granted, that granting the stay would not substantially harm Ms. Staley and that granting the stay would be in the public interest.

Here are some quotes to summarize the judge's opinion:

Likelihood of success:

"The County's motion merely incorporates the arguments and authorities it used during and after trial" -page 3

Irreparable Injury:

"In this case compliance with the injunctive requirements of the Final Judgment will not moot the appeal because if the County succeeds in its appeal, the status quo ante can be reestablished by ordering that the Bible be returned to the monument."

Harm to Other Parties and Public Interest:

"...staying the court's injunction would substantially harm the plaintiff because it would permit a continuing violation of plaintiff's First Amendment rights. The fact that the county has violated the plaintiff's frights for years does not mean that the violation should be allowed to continue."

My Analysis:

I don't blame anyone for trying. I think Stafford had the right idea with not even challenging the removal in the first place, but I also understand that he has a constituency (client?...naw) who will be very upset if they didn't even go through the motions for a losing argument. It was a losing argument though. At some point tonight before midnight and after (I predict) the 5th circuit denies a temporary injunction, the Bible will be removed from the case.

Post Script:

I forgot my favorite part of this part of the appeal. You may remember that the court already awarded attorney's fees to the plaintiffs, well now this:

"Staley's attorney has submitted an Affidavit stating that he expended 15 hours in preparing Staley's answer to the County's Emergency Motion to Stay Final Judgment, and requesting an award of an additional $3,375.00 in attorney's fees. That request is GRANTED."


The Chronicle is also reporting on this at: "Judge says courthouse Bible display must go now."

Some other opinions about the Bible Case

Editorials:
A press release by the Houston Athiests Society; An anti-Houston Chronicle site's editorial;

Bloggers:

Amanda Strassner; Trivial Pursuits; Off the Kuff; Carefully Selected Garbage.

Bible Case Update:

HoustonChronicle.com - New evidence claimed in Bible display lawsuit

What new evidence is that? Well apparently the Star of Hope is offering to put disclaimers on the monument. Interesting. I would be surprised if this gets back to Judge Lake since he already ruled on the matter. Even if it did, however, I don’t see how any of this evidence would change anything for a few reasons. First, the monument was put there to promote Christianity, and the only reason Judge Devine put the bible back in the case (that I have seen) is to promote Christianity. Second, there are no disclaimers on it now, so what has changed? Third, the payment of the electric bill will not reduce the impropriety. Perhaps if they moved it off of the courthouse grounds, or even surrounded it by other monuments, but one single monument, no way.

Stay tuned for Judge Lake’s ruling.

Harris County Bible Update

The Star of Hope Mission has publicly stated that they will petition to intervene in the case. At this point it is unclear what that means since the district judge has ruled on the case and closed it, and the County has determined that they are going to appeal.

They will be represented by the Alliance Defense Fund which appears to be a sort of litigation clearing house for pro-religion causes. Based on the variety of cases, it appears they support any Christian religious cause. My prediction is that they will be permitted to intervene because as I stated in a previous article the Star of Hope Mission actually owns the Bible in question. In Texas legal parlance, "that dog'll hunt."

This is shaping up to be a good clean fight. Disregarding the absurd publicity aboutI think both sides on this issue have legitimate arguments, so regardless of which side I support (not that there is any ambiguity), I look forward to the briefs.

HoustonChronicle.com - Star of Hope to file motion to keep Bible on display

Bible Case Documents.

For any legal geeks, I have decided to make available a couple more documents from the bible case. Here are judge Sim Lake's ruling and opinion on the Motion for leave to intervene, and the final judgment.

News:

ABC13.com%3A Ex- judge%2C others protest removal of Bible displayed near courthouse

Click2Houston.com - News - Clergy Support County%27s Plan To Appeal Bible Ruling

A bit more on the Harris County Bible Case

It turns out my assumptions were wrong (in the previous posting). There were no intervening parties to the suit. Karen Friend and William and Lisa Drout petitioned to intervene, but on January 12 their Motion for Leave of Court to Intervene was denied.

If you are interested you can read the judgment, but let me summarize by saying I think it is a good result. As usual Judge Sim Lake has carefully reasoned his opinion and I think it would be upheld were it appealed (though I don’t think it was).

What is different about the Star of Hope Mission, however, is that they actually own the bible and possibly the monument in question. They may very well have a very important interest in whether it is removed since it is theirs. As far as intervening just to assert some sort of first amendment religious argument, I think it is more of a stretch. Owning the book might overcome that though.

Harris County Bible Case Update

The Star of Hope Mission in Houston Texas is ostensibly the organization that is responsible for the bible, and they have expressed to the media some interest in joining the dispute. SOH is a openly religious institution that offers shelters, assistance, and generally does good things in the name of Jesus. According to the Chronicle, "an association that opposes court bans on religious expression in government buildings has volunteered to represent Star of Hope and file its motion to intervene in the case." The purpose of that would be to "argue that the order unconstitutionally infringes on Star of Hope officials' rights to practice religion and discuss their beliefs freely"

There are already three intervenors. I would not be surprised in the least if there were some pro bono interest in trying to fight this case. I would especially be interested in seeing what, if anything, they would add to the case. I can presume that their argument will be primarily religious, or free exercise of religion, while the state is probably going to feel obligated to argue the non-religious tact.

By the way, for the legal novice, an intervenor is "a party that voluntarily intervenes in a case. Intervention is the procedure by which a third person not originally a party to the suit, but claiming an interest in the subject matter, comes into the case in order to protect his right or interpose his claim." Black's Law Dictionary, 6th ed. There are already three intervenors in this matter. One is the court reporter for the Administrative Judge who has claimed an interest in the action (presumably because she was responsible for the bible and wanted to keep it on display), and the other two I don't know at this point. If I get some time this week I will try to get brief bios on all the parties.


HoustonChronicle.com - Star of Hope may join county in Bible dispute

Random Drug Testing in Texas Schools

The Houston Chronicle is reporting that several Texas schools are going to start random drug testing for students. Bradley Clark of the Texas Law Blog has a post agreeing with the practice:

"If you choose to experiment with drugs, there will be consequences - just like in the "real world." Drugs are a major problem among our youth and it is about time we do something about it."

I spent around 20 plus years of my life in school, more time than I have spent outside. I can assure you that school is the real world, and the lives and rights of students are not simply relevant to their parents. This criminalization of drug use (not even abuse) seems to be a major problem, perhaps even more than the drugs themselves. Unless there is some good science that I haven't heard of on this issue showing that random drug testing will actually prevent bad things, this is just a political game.

As for me, I don't think random testing is the product of people who are concerned with the health or well-being of their children, I think it is the result of fear and a desire to cleanse the schools of undesirable people. If you push people out of the schools, they will not develop into productive individuals. Instead, they will develop or enhance antisocial behavior, which will make it much more likely that I will be looking at them through a Plexiglas plate telling them how many years they can expect from the judge.

On the other hand, this is just like a regular social problem. The dumb kids will get caught; the smart ones will go to law school regardless of what drugs they had done (or were doing currently). So to all the kids in Texas schools that have this...good luck.

More in the local news:

HoustonChronicle.com - Bible story: Absence of Bible should engender no religious controversy.

H/C Bible Update

Harris County Attorney Mike Stafford is now considering his options for appeal. I will try to provide some background on this case.

First, this is Civil Action H-03-3411 before Judge Sim Lake (whom you may recognize as being part of the ENRON - Lay trial). The original plaintiff is Kay Staley, a real estate agent and attorney, and intervenors are Karen Friend, William Drout and Lisa Drout. The defendant is Harris County. Ms. Staley is represented by Randall Lee Kallinen, the intervenors are represented by James Overstreet, and Harris County is represented by Mike Stafford, the Harris County Attorney.

(For those of you outside of Harris County, the County Attorney here represents the county on all civil matters. Criminal prosecutions, both misdemeanor and felony, are handled by the District Attorney.

The bible in question is a King James edition, slightly oversize bible that is in a glass display case lit by Neon lights. It is currently situated about 20 feet from the main entrance (off Fannin St.) to the County Civil Courthouse so that just about anyone leaving the building is forced to look at it. There are no other noticeable monuments on the courthouse grounds (unless you count the newspaper racks).

Judge Lake, after a trial (as much as something like this gets a trial) determined that:

...Harris County has failed the first two elements of the Lemon test. The Bible atop the Mosher monument does not have a secular purpose, and the primary or principal effect of the Bible display is to advance religion. The court therefore concludes that the Bible display violates the Establishment Clause of the First Amendment to the United States Constitution.

I have made Judge Lake's opinion available here. I will leave that up until it becomes a problem.

For an interesting comment from someone who obviously feels different about this issue:

Please Don't Call Me an Evangelical

Update on the Harris County Bible

The Harris County Attorney Mike Stafford has decided to appeal the ruling by district judge Sim Lake to remove the bible that is perched in a dirty neon lit case right in front of the doors of the Harris County Civil Courthouse. It appears that their argument is that the bible is a memorial to a specific person and therefore does not represent a state endorsement of a particular religion. I don't agree with them, but I do think they have an argument (notice I don't say "good" anywhere in that). I will try to get the pleadings from the prior action and post them.

HoustonChronicle.com - Harris County to appeal order to remove Bible

A more detailed article regarding the Harris County bible.

HoustonChronicle.com - Bible display must go, judge decrees

For those of us that have been in and out of the Harris County civil courthouse and occationally stopped to wonder "what the hell is that doing there," we now can just move along to our overpriced parking. While this case will undoubtedly be appealed, I don't think they will win. I will try to follow this case from now on, if there is something to follow.

HoustonChronicle.com - Harris County must remove Bible displayed outside courthouse

Enron / Ken Lay

It seems that Mike Ramsey and that guy he is representing right now have decided to play a rather ballsy card. In a statement to the press Ramsey has volunteered to waive a jury trial. Now I don't even pretend to have the amount of experience or talent that Ramsey does, but I would like to offer some thoughts on this matter.

First of all, I don't know what is happening behind the scenes, but public comments don't mean squeezed, so we'll have to wait and see whether he actually waives the jury. What this could mean is Ramsey doesn't think the Gov't can come up with a case in time to try it, or that they can't come up with a good case. A defendant has a fundamental right to a speedy trial. Klopfer v. N.C., 386 U.S. 213, 223 (1967). If the government doesn't offer that, the defendant gets off. Now before you all start thinking unmentionable thoughts, you should realize that it is very rare for a dismissal based on a right to a speedy trial, and I don't expect it here.

What I do expect, however, is for the government to be pushed into acting before they are ready, or at least to face some pressure. Whether or not they can make a claim for a speedy trial, it will be hard for the government to put off the trial now that they have indicted Lay. The main effect this might have on the defense is to prevent the US attorney from getting one of the other major players to turn on Lay since that could take a lot of time. The other main effect would be forcing separate trials on the three defendants, which by their very nature would change the prosecution strategy, and would really help out the defense. The worst thing this will result in for the defense (that I can see) is a judge trial in six months, the best would be just getting slapped down and being back in the same boat.

This is a risky gambit, but Ramsey is a very good lawyer by any standard, and I expect that he knows what he is doing.

Another interesting note, however, is that law has set aside some money to pay for his defense. While Ramsey denies that it is 15 million, "Obviously it's a large number," Ramsey said



HoustonChronicle.com - Ken Lay is ready, willing and funded for trial:

"'We are ready for trial now. We are ready for a trial with a jury. We are ready for a trial without a jury,' Ramsey said. He said they'd prefer a jury, but if it will slow the case too much, Lay will waive his right to a jury trial and be tried by the judge 'as long as it's speedy.'"

The Justice Department originally failed to consider the possibility that the people quarantined in Guantanamo Bay could ever receive judicial process, failing to see that actions designed specifically to circumvent existing law rarely work out (call me a pragmatist, I don't care). After getting their previous position slapped down in the recent supreme court term (in rashly), they are now apparently completely oblivious to the implications of the ruling, seeking instead to re-litigate the issues.

Despite the fairly clear indication of the Supreme Court that people are entitle to a lawyer, the Justice Department has decided to allow them to have the aid of a person who will swear that he or she is not a lawyer. So not only will they not get a lawyer, but somehow lawyers are so evil that they can't even talk to the people.

This is all a bunch of crap. If the Justice deferment is going to just flat refuse to follow rulings of the supreme court they should get on with their coup. They should also get out of the lawyer-hating business. That is like saying the detainees can get medical care, but only from someone who swears that he or she is not a doctor.

Anyway, read what riled me up at this link.

SCOTUSBlog

What is the best way to serve a warrant?

Hillsborough: Promised gifts, they instead get jail

OK, I know this is off topic, but w.t.f.? Are we really to believe that our federal government is engaging in research to justify belief in hell?

HoustonChronicle.com - Report: Belief in hell boosts economic growth

More on the republican attempts to strip the federal courts of jurisdiction to review gay marriage.


The Village Voice: Nation: Off the Court by Alan Hirsch

Ok, so I am at the mercy of my sources. As a correction, let me point out that the firemen I mentioned before were not fired for lying, they were simply put under investigation. That will teach you to lie.

HoustonChronicle.com - Only one canned in city inquiry, fire chief says

Just to clarify my position stated below:


I don't really have a problem with moderate Republicans. I do fall a little on the left side of the spectrum in most issues, but I can assure you I would have the same problem if Peliosi was pushing this agenda though. I think the strength of our political system relies on individuals disagreeing with each other, and winning and losing issues.

It is no secret to my friends that I don't support our current executive branch, but neither do I think Democrats should have a monopoly on power. I think it is very dangerous for any group in power to contemplate methods of silencing dissent, either by postponing elections or stripping the courts of their jurisdiction.

News Flash to the right wing, most people in America don't want to amend the constitution to make gay marriage illegal. I know you think it is very important, but you can't do it unless you follow the rules. Even Clarence Thomas would agree with that. Changing the rules so that you don't have to follow them is cheating.

Anyway, I will be following this issue as time allows. For you legal historians, I think you might find some similarities between this and Roosevelt's court packing plan, and maybe Lincolns plan to "overrule" the Supreme Court. Both of those worked, so one has to wonder what this will result in.



BTW: Kudos to Roman Candles for the quote)

New GOP gay-ban tactics=The Hill.com=: "All the legislative action on gay marriage is currently in the Senate, but the House GOP is rapidly developing its own tactics. Leaders will take their first step next week when they take up Rep. John Hostettler's (R-Ind.) jurisdiction stripping bill. This would bar federal courts from hearing lawsuits related to gay sex and marriage"

Ok, so it comes down to this? Not only do the right wing republicans want to amend the constitution in order to push through their particular extremist morality, they want to start eliminating the judicial branch?

And why? because they are afraid that the Supreme Court will do something like rule on a constitutional issue?

For those of you that don't follow constitutional law, there is a theory that has been floating around for a while that the legislature could eliminate the power of the Supreme Court to review certain cases but limiting the jurisdiction of federal courts. This will be accomplished by something like a bill that says "no federal court may rule on an issue that we disagree with." It would be something like them saying, "you can rule on whatever you want court, just as long as you never review a case about gay marriage."

Honestly, I think people should be afraid of this. People should be afraid of a congress (or at least Mr. DeLay) who think they should be able have absolute power, unchecked by any other branch. Whether the technical nit-pickers are right about the technical feasibility of this action under Article III is not relevant. Both the "living constitution" and the framers plainly intended meaningful judicial review (since Marbury v. Madison at least). Any action by the legislature limiting the jurisdiction of the courts to review something as fundamental as public policy via marriage and interpersonal relationships would be void as a violation of the 14th amendment, the 6th amendment, the right of contract, and maybe even the 13th amendment.

The problem is that if this type of law were to pass (which I don't think it would, but if it did) when it came to the Supreme Court, we would need a new opinion rising to the art and science of Marbury v. Madison, and I just don't know if there is enough intellectual power on our current court.

Not only has the Houston Fire Department fired some people for lying on their employment application, they have initiated perjury charges against at least one of them. Having recently discussed this very issue with people, let me tell all of you that lying is very bad. If you think it is hard explaining a conviction for a traffic violation on your record, try explaining that you have been convicted of perjury.




HoustonChronicle.com - 8 firefighters terminated over job applications

For anyone who is interested in the Blakely fallout, here is a blog devoted to that kind of stuff.

Sentencing Law and Policy

The Associated Press

Recent Supreme Court actions have begun to make themselves known in the trenches. The recent Blakely decision has produced some internal rumblings in the Justice Department, as well, I am sure, in the many other prosecuting offices around the nation. Blakey solidifies the role of the jury by preventing a classic end-around where the judge increased the sentence after the trial by finding some aggravating factors.

I am a big fan of the Blakley decision, ironically, since I often find myself at odds with Justice Scalia. I think the role of the jury is sacred. While I have seen many a jury that seems to be composed entirely of idiots, I think in general the jury system keeps criminal lawyers honest. If you allow lawyers to do all the work, sentences will get worse, particularly in conservative states like Texas because the people who see this stuff day in and day out get weird ideas about what is right and what is not right.

Furthermore, knowing that in the end a decision will be made by twelve random people makes the government (and defense attorneys) carefully consider the evidence for plea deals. Knowing that at the end of all the pretrial bullcrap is a panel keeps everything in perspective.

More on the below subject from the AP is here.

Massachusetts can continue to perform gay marriages whether people like it or not, So says the First Circuit court of Appeals.

In summation:

"The resolution of the same-sex marriage issue by the
judicial branch of the Massachusetts government, subject to
override by the voters through the state constitutional amendment process, does not plausibly constitute a threat to a republican form of government."

Now I don't meant to nit pick, but this kind of case is a hail mary anyway. It was unlikely (in my opinion) that any court would actually want to get into the middle of a debate like this. In fact, I am surprised that they didn't kick this case on a jurisdictional finding. Go figure.

HoustonChronicle.com - Artist wins copyright suit in Barbie case

Ah the wonders of copyright law...can Barbie, for example, ever get out from under that weight of representing everything that is wrong with American consumerism?

I remember reading somewhere that Barbie was first made so that little girls would have a doll that actually had breasts (though no vagina, apparently). Now little girls can learn that breasts have no nipples, women have waists the size of their neck, and (still the same I am afraid), that women have no vaginas. What they do have, however, is thousands of outfits and vehicles and such.

Tom Forsythe has taken this little collection, and basically created some of that fantastic modern art in which that actual art is secondary to the meaning that is manipulated by the artist. There is an example here. In this photography, Barbie was stuffed in a blender and her hair was messed up. Now exactly what that means is open to discussion, but I think it is part of a general unease about the function of beauty in our society.

So is that trademark infringement? Methinks instead it is part of Mattel’s attempts to keep Barbie out of the news, at least in a negative way. They did the same thing with the “I’m a Barbie girl, in a Barbie world” song (the name of which eludes me). This type of stuff is so clearly parody that it is really embarrassing that they are suing. They need to take a lesson from Hormel, the makers of that wonderful whatever food SPAM. You don’t see them suing over people calling their junk email spam. I don’t recall them suing Monty Python. In fact, they have managed to use certain connotations to their advantage.

In summation, bravo to the courts, and a resounding BAH to Mattel.

By the way, because of a comment by a friend of mine that she has actually tried to read this thing occationally, I think I will start making some sporatic posts.

Big news in Death Penalty stuff.

The New York high court has ruled New York's death penalty unconstitutional.


The US Supreme court has ruled that the limitations imposed last year requiring the death penalty to be imposed only by a jury and not by a judge is not retroactive because it was not a "watershed" rule change.

I am still here, just a little bit busy these days.

As an attorney I have to say, if anyone wants to pay me a 23 million retainer or, better yet, flat fee, I would certainly be willing to accept it.

HoustonChronicle.com - Skilling budgets $23 million for defense

Once again the debate of hit lists (though in this case at least there was not actual murder encouraged) on the internet. One should remind these people who are so full of hate that if a junior high kid was caught in school with such a list, he or she would probably get expelled or sent to jail for terrorism. Maybe the Justice department needs to put a little effort and money into these hate sites.

HoustonChronicle.com - Blacklist of patients who've sued taken off Web

Several of the biggest email providers have banded together to sue some of the biggest spammers. Once again a gorilla is attempting to kill the ants in its cage by pinching their heads off. Of course I say that without knowing what the results of this litigation will be. We may well see s slight drop off of the semi-legitimate activities of the spoofers and spamers if the big boys can nail a few. It will hit equilibrium soon, though, and spam will be back. The way the CAN SPAM act is written, they can pretty much spam at will as long as they don't lie. Still, it does feel good to stick it to some folks, and as a lawyer I have to say we legal-eagles love big long complicated lawsuits at hourly rates.
No, the real answer to spam, and file sharing, and everything else on the Internet is going to be technological and informational change, not litigation. Litigation is slow, computers are fast.
HoustonChronicle.com - Internet providers join forces to sue hundreds of spammers

Edward Kennedy has taken the unusual step of suggesting to the members of the 11th court of appeals that one of them should challenge Pryor's recess appointment sua sponte. While that would certainly be unusual and in my view unlikely, it might bring the problem of Rove's end-around strategy into light much faster. In any case, I pity to parties who must consider raising the issue. Letter

It seems that ENRON was not the only company suspected of manipulating prices. I suppose it is not all that surprising given the climate, but this could bring some interesting things to light. HoustonChronicle.com - Feds to indict Reliant subsidiary

I have discovered that there is actually a converter out there to modify the Atom file into a RSS file. Oh how wise I am.

There are so many new things to learn, especially if you are supposed to become some sort of journalist overnight. For one thing, I can't figure out the whole RSS feed thing, at least not with Blogger. Bah.

So how many blogs would a blog spot blog if a blog spot could spot blogs? Or, in otherwords, how much is an online journal of my thoughts and intrigues if I can't be bothered to actually record them? Well, I think I am going to give it one more try.