The private practice of criminal defense is a jealous mistress -  demanding, seductive and at times, hazardous to your health.  So what will it be like to show up for work and then leave it behind for the day, knowing it will be there tomorrow and the day after and the day after that?  I’ll not know until I experience it.  But after nearly 29 years of doing it on my own, it’s time.  I do know that.

I had a good run with the website.  I hope I stimulated some thought and reflection over the past three years.  But in all fairness, I cannot continue the blog.  It will remain for all to read and if so desired, to comment.  But as of today, I shall post no more.  Auf wiedersehen.

Pellegrino found out from survivors that those who lived to tell their tale did so because they were the recipients of blind, random good fortune.  It wasn’t God’s will or divine intervention.  They were in the right place at the right time, sheltered from the searing heat produced by the blast and afterward, from the deadly gamma and infrared rays.  Because of their position, usually behind sound physical structures, they were protected from the flattening effects of the explosion.  But what these survivors witnessed after the debacle defies mere description.  For example, they immediately noticed something very disturbing about those who were exposed to the heat and flash of the explosion wearing brightly colored clothes  with designs.  The heat of the blast permanently branded the clothing designs into their skin.  Those who were wearing any kind of metal, say like a wristwatch, died much quicker than other survivors.  The reason?  When the heat hit, it was so intense that it literally melted the metal into the skin of the person.  This exposed the person to enhanced doses of radiation since the metal acted like a superconductor.  These unfortunate folks died of radiation sickness very, very quickly.  Many people reported that the smell of burning human flesh, quite prevalent over all of Hiroshima, was “quite similar to the scent of squid when it was grilled over hot coals with a few pieces of sweet pork thrown alongside.”  But that is nothing like what Pellegrino describes what the Japanese called “atomic bomb disease.” 

In a passage that puts to shame the descriptions of a vast wasteland in Cormac McCarthy’s “The Road,” survivors tell of coming upon so-called “ant-walking alligators.”  These were Japanese who were rendered eyeless and faceless from the corrosive effects of the supercharged heat of the blast.  Their heads and torsos were transformed into blackened alligator-like hides which displayed large, gaping red holes - either huge ulcers or their mouths.  The following is a continuation of the descriptions provided by witnesses:

“The alligator people did not scream.  Their mouths could not form the sounds.  The noise they made was worse than screaming.  They uttered a continuous murmur - like locusts on a midsummer night.  One man, staggering on charred stumps of legs, was carrying a dead baby upside down.”

So, just what kind of person lived through all of this to live another day?  As one Japanese doctor recalled, those who survived were “the people who ignored others crying out in extremis or who stayed away from the flames, even when patients and colleagues shrieked from within them . . . those of us who stayed where we were, those of us who took refuge in the hills behind the hospital when the fires began to spread and close in, happened to escape alive.”  In short, those who survived either were just plain lucky or selfish, self-centered and guided by instinct to live rather than the desire to engage in altruistic behavior  toward others in danger.  This echoes the exact conclusion reached by Primo Levi in his riveting memoir of his survival in a Nazi concentration camp, “If This Be a Man.”  Those who lived weren’t the best or the kindest; indeed, they were the first to perish.  It was the inmate who was the meanest, the cruelest, the most conniving who made it through.  Levi called this conundrum “The Drowned and the Saved.”  It had nothing to do with who deserved to live or who called upon their God for salvation.  The former has no relevance to the discussion and the latter is just wishful thinking, kind of like resorting to the prayer method at the track.  It’s the ugly truth.  It’s something that we don’t want to consider because it upsets the neat, pretty conventions we subscribe to.  If we pull through, it’s God’s will, right?  But if not, well, He never gets any of the blame.

Pellegrino has avoided any moral discussion of the Hiroshima bombing, instead focusing on the forensic aspects of the incident.  But as far as I’m concerned, there’s nothing to discuss.  I subscribe to Paul Fussell’s analysis.  Fussell - poet, intellectual, teacher, author of “Thank God for the Atomic Bomb” and  veteran Marine who fought on Okinawa - observes that “the degree to which Americans register shock and extraordinary shame about the Hiroshima bomb correlates closely with lack of information about the Pacific war.” 

President Truman, who I am sure was up many a sleepless night over the decision, had concluded that there were to be no more American lives spent in those bloody days leading up to Japan’s capitulation which, but for the dropping of the atomic bomb, would have never come about short of a full-scale invasion of the Japanese islands.  If you were a young conscript, waiting on the deck of a transport ship for deployment in the planned invasion of Japan (an operation that would have involved 1,000,000 American servicemen and servicewomen), you, too, thanked God for the atomic bomb and the end of a war that had already taken upwards of 50,000,000 lives. 

I do know one thing: in that long process, I have been voluntarily transferring what little wealth I accumulated to three entities: the government, the banks and insurance companies.  I can’t keep going on like this.  I’m sure my fellow solo practitioners feel the same and if not, then 1) you don’t give a damn about making the quarterly payments (can’t blame you) and 2) you either don’t bother with individual health coverage or lucky you, your spouse is a wage earner with group coverage. 

Blackie Sherrod once said, “It’s not the income, it’s the outgo.”  How true.  What do I do in the face of yet another increase on my quarterly premium on the health coverage?  Do I kick it up to a 10K deductible?  Do I go even higher, essentially becoming self-insured?  Yet one three or four-day stay in the hospital will break anyone.  Seen the bills for short stays in the hospital lately?  They are mind-boggling.  We can’t keep going on like this.  We really can’t.  I don’t want to bludgeon readers with tired saws but this is not a situation where we have a date in the near future with a reckoning.  It’s here, it’s now and people are going bust, simply because the take from this unholy troika is unbearable.  It’s enough to turn one to a life of crime or at least, the black economy. 

After all the checks were written, I took a deep breath and then, what . . .?  Why not drop a dime on myself?  Ever since Breeders Cup, I had taken to watching the races and not betting.  Maybe it was time to crank it up and try my hand at Gulfstream Park.  Saturday’s card was a treat with deep fields and several races on the turf.  A quick trip to Albuquerque might be the cure for the blues, right?  Well, the drive over is a nice diversion because I seem never to tire of the geography in our sister state and I like Albuquerque.  I love to gamble on the nags but my return to the races only underscores the brutal truth - you want to succeed at this game, you have to work at it regularly.  It’s like anything else; it takes practice, practice, practice, especially at Gulfstream.  It was a frustrating day with the chalk dominating the races.  There was just one play, just one that day, and I missed it even though it was right there for the taking.  Quiet Harbor in the feature stakes race of the day.  I had the filly at a play at anything over 12-1; she goes off at 18-1.  And I didn’t have a penny on her for the win even though I had in everywhichaway in the exotics.  She pays $39.40 for every two dollars bet.  And I have a handful of mutuels for tax purposes.  The problem with that is lack of income.  There it is again - not the income, the outgo.  And the crash has hit everything and everyone.  My beloved Jockey Club at the N.M. State Fairgrounds is the latest victim.  It had fallen on hard times since my last visit in November.  Gone was the kitchen and its great buffet, the mutuel tellers, several big screen TVs.  What was left was me, a few other old codgers hanging on, doling out their two-dollar bets and a single mutuel teller handling all the action on Saturday.  It was pretty sad. 

You ask me how I feel about all of this?  Uncertain.  Not depressed, not catastrophic, not bitter.  Just uncertain, as uncertain about everything as I have ever felt about anything.  I look to the future and all I think about is how to make things better for my daughter.  She doesn’t deserve the way we’ve screwed up everything.  All I know to do is get up tomorrow morning and keep at it.  I don’t look for inspiration, just the will to keep going from day to day. 

Now, aren’t you glad I cheered you up this morning?

Just recently, Morgan Stanley decided to stop making payments on five San Francisco office buildings.  It had purchased the commercial real estate at the height of the boom, only to watch the values plummet after the 2008 crash.  No one - not former Treasury Secretary Henry Paulson, Jr., not President Obama, nor any other Wall Street banker - ever accused Morgan Stanley of unethical behavior for letting the property go.  In fact, no one ever thought that such behavior was unethical or immoral in the first place.  But the average American is cut from a different cloth, I guess.  He or she is supposed to honor all debts, even one where there is absolutely no hope of ever realizing a recovery of equity.  What gives?

The housing industry has managed to implant two prevailing notions that strategic mortgage defaults are basically immoral and antisocial.  First, it has convinced most of us that foreclosures depress the overall economic health of a given neighborhood and drive prices down.  If I remember my basic economics course at Lamar University, wasn’t it accepted wisdom that the individual player in the market society is not responsible for economic effects of their actions?  Oil speculators hope to drive up the price of oil. Hedge fund managers speculated in the purchase of so-called “credit-default swaps” which signaled doubt about the bank’s creditworthiness and made it more expensive to borrow and extend conventional loans.  Are they to be held to a different standard than the individual homeowner? 

Second, homeowners have bought the canard - hook, line and proverbial sinker - that defaulting on the mortgage cheapens the character of the borrower.  Well, fifty years ago, when our parents bought homes, a mortgage was truly something to be held for the duration.  Both the bank and the borrower had that in common.  No more.  Lending institutions now unload mortgages within days (if not hours) after closing.  And this is true in virtually all transactions in this fluid, global economy.  The simple truth is that negotiability and ease of transfer of assets is paramount to any enduring relationship you may have with a lender. 

Look, the homeowner enters into a contract which protects everyone from the failure to pay: the property reverts to the lender.  The defaulting borrower isn’t really skirting the obligation.  Rather, he’s suffering a real loss by voluntarily ceding the property back to the lender.  That’s no escape from consequences.  And the cold facts paint a grim picture.  Nearly a quarter of all mortgages are currently “underwater” (meaning that more is owed on the loan than what the house is worth); 10% are now delinquent.  That’s a staggering number.  Counseling people to continue to pay on this kind of debt is encouraging them to throw their money away.  Living in a capitalist society doesn’t mean that we have to enter into a suicide pact.

It’s time for the government and President Obama to stop lecturing these unfortunate debtors about their moral responsibility to make good on debt when the financial institutions have made a mockery of this so-called moral obligation to the country.  What if homeowners, by some grass-roots miracle, began to default when it became apparent to do so was in their best economic interests, just like Morgan Stanley or Arrow Trucking (the huge trucking firm out of Tulsa, Oklahoma which decided to shut down its vast fleet, without warning to its creditors, lenders or employees, on Christmas Eve)?  Maybe if lenders feared an deluge of strategic mortgage defaults, they would have real incentive to renegotiate their outstanding loans.  Isn’t this what the Obama administration has been after all along?  Why not just come out and level with the American people?  Tell them that if it’s no longer in your economic interest to continue to shell out the mortgage payment, walk away, rent a place at a pittance of the cost and be done with it.

“One thousand-one, one thousand-two, one thousand-three, one thousand-four, one thousand-five, one thousand-six, one thousand-seven, one thousand-eight, one thousand-nine, one thousand-ten, one-thousand-eleven, one thousand-twelve, one thousand-thirteen, one thousand-fourteen, one thousand-fifteen, one thousand-sixteen, one thousand-seventeen, one thousand-eighteen, one thousand-nineteen, one thousand-twenty.  That was the amount of time Officer Arp initially tased Anthony G. Hereford, Jr., according to the instrument’s log.  At the time, appellant was handcuffed and being held down in a hospital emergency room.  Arp wanted appellant to spit-out what he had in his mouth.  When appellant did not comply after Arp’s first foray, the tasings resumed.  No one viewed appellant as a threat to others during the episode.  Nor had he attacked anyone.  Arp simply wanted to comply.  When asked if “repeated taser use [was] acceptable” and whether “20 seconds worth of tasering” was “okay,” the policeman answered “yes” to both.”

So begins the Seventh Court of Appeals’ opinion in Anthony Hereford, Jr. v. State of Texas, No. 07-08-0315-CR, handed down yesterday.  Chief Justice Quinn, writing for a unanimous panel, concluded that the manner in which crack cocaine was extracted from Appellant’s mouth, namely the repeated administration of taser shocks, was unreasonable, excessive and constituted a violation of due process.  The trial court’s denial of Appellant’s motion to suppress was reversed and the case remanded for new trial.

Judge Quinn breaks no new ground here.  Rather, the judicious, well-written opinion addresses established constitutional principles, primary among them the proposition that methods utilized by law enforcement run afoul of the Fourth Amendment when evidence is 1) secured by forceful means which threaten the suspect’s health or safety, 2) fail to conform to accepted medical practices, 3) are not performed by adequately trained professionals and 4) unduly intrude upon a suspect’s dignitary interests in personal privacy.  In concluding that officers with the Lubbock Police Department violated all of these considerations, Judge Quinn found the following:

No one accused Appellant of being violent or physically aggressive toward anyone throughout the entire encounter yet, when arrested, he was removed from the squad car, put in a throat hold, thrown back into the squad car, tased repeatedly on the back and leg and then dragged to the ground, all the while remaining handcuffed.

After determining that their efforts had not resulted in Appellant’s spitting out the contraband, the officers conferred and decided to take him to the emergency room where medical personnel were unable to get Appellant to dislodge whatever, if anything, was in his mouth.  It was at this juncture that Officer Arp decided to tase Appellant in a “sensitive” area.  He was then tased in the groin area for twenty seconds.  Medical personnel confirmed that Appellant screamed and moaned in pain from the application of the taser.

The officers who administered these repeated tasings perceived no problem with “continuously” or “repeatedly” discharging a taser on individuals within their custody who were “non-complaint.”  In this case, the officers considered Appellant non-complaint because he refused to spit out whatever he had in his mouth.

The two police officers involved in the tasing testified under repeated direct and cross-examination that they only tased Appellant four times when, in fact, the taser’s log indicated eight separate tasings. 

There was no evidence that either officer had been adequately trained on the use of a taser nor did the State establish what guidelines the Lubbock Police Department had established for acceptable use of a taser or that either officer’s use of the taser even came close to comporting with departmental policy.

Application of the record to the indicia of factors outlined in Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611 (1985) and consideration of similar cases having found due process violations (suppression of evidence or confession warranted when officers used cattle prod on defendant, beating of suspect while handcuffed or pepper spray on accused immobilized with hobbling device) compelled the appellate court to conclude that the State failed to prove that force administered here was reasonable and the trial court erred in so finding.  With that holding, Judge Quinn then dropped a footnote to caution all the naysayers:

“It may well be that those guilty often find protection in what some deem to be the “technicalities” created by our constitutions.  Those “technicalities” though exist to protect the innocent as well as to preserve minimum concepts of decency and acceptability in a civilized society.  That the guilty also benefit from them is not reason for their rejection.  Throughout life we are told we must accept the good with the bad.  This is especially so when the former greatly outweighs the latter as it does here.”

Congrats to appellate ace Paul Mansur of Denver City for yet another reversal.