He Can't Walk but He Sure Can Dance

Happy Monday.

Okay, Now I'm Really Mad. Michelle Malkin Mad.

The Massachusetts Legislature just voted to change the law (again) so its governor can appoint an interim straw man to sit in Kennedy's vacated senate seat, pending a special election. Kirk, at the White House's urging, looks to be the impotent annointed one.

Oh, I know what you're thinking. "But wait! As recently as 2004, Massachusetts Democrats said, 'Oh no, Mitt Romney. We can't have you appointing an interim Republican if John Kerry is President,' and they changed the law." And you'd be right.

But we knew this turn-about was coming, didn't we? Come now. Turn-about on a turn-about on a turn-about is fair play, nay?

Moral of the day? If the law doesn't suit your purpose, change it. Moral of the minute? When the new law doesn't suit your purpose, why, change it again!

What idiot economist opined that a free-market economy flourishes, is indeed nurtured, by stare decisis? What Windy City GSB blow-hard suggested that business people make decisions based on some firmly-rooted belief that the law is stable, not subject to the whims of politics? That contracts will be honored by the courts?

Oh, pshaw. The free-market theory is so overblown. Get off your horses, ye Wild West capitalists, and think of the common good. Look out your window and see the new day that has dawned. Look to Obama the government for the guaranty assurances on your bonds.
Oh mighty O assures us that if his healthcare savings don't occur, there is no cause for concern. With respect to future spending cuts, here's exactly what Obama had to say:

"And to prove that I'm serious, there will be a provision in this plan that requires us to come forward with more spending cuts if the savings we promised don't materialize."

Huh? Ha! This is like the illusory promise we hear from car salesmen on TV. "If you find a better price on a car and I can't beat it, I'll give you the car for free."

See how smart Obama thinks we are? See?

"Err, Mr. Obama, could you stop pounding the Sunday talk-show-circuit like you're pounding used cars on TV? For a minute could you hear us out? We, the lowly, anti-American critics born of astro-turf? We won't take up much of your time.

"Because, Sir, as we see it, every Congress is sovereign. Every Congress can do what it wants. You, President Obama, cannot force this Congress, or any other congress in the future, to do anything. Much less could you force a future congress -- after you are out of office -- to enact any spending cuts.

"And Mr. Obama, you, of all presidents, should know this. You're one of the smartest presidents we've seen. But we're not the most stupid constituency you've ever had to lead."

Years ago, when I took contracts in law school, we learned that an agreement to agree in the future is . . . well, not just insane but completely unenforceable. Imagine, "Okay, yeah, in a year I'll agree to sell you my house at a price we'll both agree upon." Nuts! You can't have an enforceable "we'll agree to agree later" contract. Just like you can't have one with Congress.

Then again, under Obama, who can say? Black letter law is becoming passe'. On this point, Michelle Malkin, I agree with you; I'm with you all the way.

Sex in the Time of Remission

Per the New York Times, John Edwards is poised to acknowledge that he, not Andrew Young, is the father of Rielle Hunter's baby girl. Mr. Young's soldiering wife Cherie is pictured below.

Well, knock me over with a feather. We foretold this outcome months ago, didn't we?

Recall that Andrew Young, an Edwards aide, initially fell on the sword and claimed that he was the father of Ms. Hunter's baby.

Err, not any more. In Mr. Young's new book, according to the NYT, he writes,

"Mr. Edwards once calmed an anxious Ms. Hunter by promising her that after his wife died, he would marry her in a rooftop ceremony in New York with an appearance by the Dave Matthews Band."

Ewww! Eww! Eww, eww, eww! Remember when he stressed that Elizabeth's cancer was in remission during his dapper dalliances with his paramour, Ms. Hunter? That was bad enough.

But wait! Before you dismiss this as an obnoxious re-bloggering tabloid, let me explain a lawyer's legitimate interest in this tangled legal web.

The feds, as you may recall, are criminally investigating Mr. Edwards for possible violations of campaign laws.


By way of background, it seems Fred Baron made payments to Ms. Hunter. But Mr. Baron said he made these payments on his own volition, and that Edwards never knew.


Mr. Young, on the other hand, has quite a different story. He says Edwards knew all along that Baron was paying Ms. Hunter to make her comfortable, to cover up their affair. And that Edwards was eager for Mr. Baron to make these payments.

Can the two versions be reconciled, given that Fred Baron died last year?

Umm, I don't know. Because this sticky wicket involves the "dead man's statute." It's a rule of evidence that generally precludes the admission of a dead person's statements into evidence, if the statements are being offered for the truth of their contents.

You cannot say, in a will contest, for example, that Granny's will should be scrapped because, by God, she wanted you to have it all and told you so in her apple orchard.

On the other hand, what if Mr. Baron had walked into a restaurant shortly before signing his will, and declared to the hostess, "I am the King of England!"? Well then, this statement would be admissible. Not because it might be true (we all know Mr. Baron was never a king), but because it shows the fellow was non compos mentis; a loon, in other words, and therefore not mentally fit to make a will.

But back to the here and now. Baron's statements that Mr. Edwards had no idea Baron was helping Ms. Hunter financially? That Baron's payments came from his own bank account and not Mr. Edwards's campaign account? Hmm. Since they're not being used to overturn a will, it's harder to say.

Of course, if these statements by Mr. Baron were dying declarations, uttered in causa mortis, it might be a different matter. But there's no evidence of that.

My at-first-blush conclusion, were you to ask, is that Mr. Baron's exonerating statements of Edwards are inadmissible. But this is only preliminary. Thankfully I'm not the judge.

In the meantime, someone should hire me to write law school exams. There is more real-life fodder for fact patterns here than any fictional source I could ever hope to find.

Sex and Lies but No Video Tape

"What does per curiam mean?" I once asked a senior lawyer, back when I was banging around the law library before I started law school. His snarling reaction startled me.

"When an opinion is per curiam," he said with disgust, "the author is anonymous. It means nobody on the court had the guts to put their name on it." It's often a signal the that the holding is embarrassingly wrong.

Today we've got a titillating per curiam opinion to peruse, handed down last week by the Texas Court of Criminal Appeals. In Re Charles Dean Hood is the case (2009 WL 2963854).

An exhaustive review of the background of the case (its procedural history is lengthy) would exhaust you. But here is the sordid story in a nut shell.

One Charles Dean Hood was convicted of capital murder. Which may be all well and good, except that the married judge who heard the case, Verla Sue Holland, and the married guy who prosecuted Mr. Hood, Tom O'Connell, Jr., had been having an illicit affair.

Like everyone else in town, Hood's lawyers had heard rumors about the affair. But no one would confirm it. "Still," you might ask, "Why didn't Hood's lawyers file a motion to recuse the judge?"

Err, well, a lawyer cannot move to recuse a judge unless the lawyer can swear under oath that he has personal knowledge of the judge's conflict of interest or bias (Tex. Rule Civ. Proc. 18a(a)). And if you didn't actually see the judge and the prosecutor in the sack? Then you don't have personal knowledge. Take your seat.

Not to mention, common sense says if you file a motion to recuse and lose, you and your client risk the wrath of the judge during trial. Judges are powerful people in long black robes. And most people don't like their impartiality questioned.

In Mr. Hood's case, filing a motion to recuse, based purely on "rumor and innuendo," would have been an enormous gamble with terrible odds. Most prudent lawyers wouldn't roll those dice if their client were facing the death penalty.

It is understandable, then, that Hood's lawyers didn't raise the affair until after Hood was convicted.

After the conviction, however, Hood's attorneys doggedly sought to prove the affair, and for several years, to no avail. The pair refused to cooperate in any investigation. In fact, prosecutor Tom O'Connell affirmatively denied his affair with Judge Holland (2009 WL 2963854 at *3).

Finally, a former prosecutor from the District Attorney's office gave an affidavit, going on the record to say the affair was common knowledge around the office. Armed with this affidavit, Hood's lawyers were able to use a fairly obscure rule of civil procedure (a "deposition to perpetuate testimony") to question Judge Holland and Mr. O'Connell under oath.

And lo and behold, the pair admitted that indeed, they'd had an affair.

Both confirmed they'd had a long-standing, secret sexual relationship that they'd tried mightily to cover up. They'd disclosed it to no one, and certainly not to Hood or his lawyers.

Alrighty then. So what was the outcome? Did Mr. Hood get a new trial because the judge and the prosecutor had been carrying on?

Umm, no. Hood got a per curiam opinion from the Court of Criminal Appeals instead, that said he should have brought the affair up along time ago.

Hood should have moved to recuse the judge before trial (even though his attorneys had no "personal bopping knowledge" and so couldn't have moved to recuse her).

Alternatively, said the Court, Hood should have argued he was denied a fair and impartial trial in his previous habeus filings (he did, but the Court said he didn't have enough evidence to prove the affair; 2009 WL 2963854 at *4, FN 15).

In essence, the majority of the Court, led by Presiding Judge "we-close-at five" Keller, said, "Mr. Hood, you're too late. You should have raised this issue back when you didn't have the proof." Three judges, laudably, dissented.

And the Court's brave per curiam opinion? Was a "DNP," a "do not publish." Which means it will never be binding legal precedent.

Ah. Justice in the wild west of Texas.

With a Name Like ACORN, It's Got to Be Good

The non-stop media coverage of ACORN is wearing me out. It's been going on all week; every major network is buzzing about ACORN. And I thought the Ted Kennedy coverage was excessive.

What's that? You haven't heard about ACORN? From just what planet do you hail? Admittedly, there would've been more coverage of these ginned up non-controversies if the media hadn't been so busy covering Van Jones' resignation. But when a White House Czar resigns late on a Saturday night (over a sleepy Labor Day weekend no less), you've got to expect it will be big news. As damn well it should.

Not because Jones is a self-avowed, loud and proud communist. Capitalism and democracy are so yesterday. And not because Jones joined the Truthers in calling for George Bush to be investigated for intentionally allowing the 911 attack. Jones eventually removed his name from the Truthers' petition, by the way. So take that, Birthers!

No, Van Jones's resignation was news because he devoted his life to greening the ghetto. He wanted to train minority youth to install solar panels, build windmill turbines, all kinds of great green stuff. He even founded S.T.O.R.M., exhorting minority youth to revolt against the establishment. But damn it all to hell, Obama stopped him in his tracks, threw him under the bus. Muttered something about inadequate vetting. RIP, Van Jones, RIP.



But let's get back to ACORN, though there's not much to say that the media hasn't said already. ACORN is a politically independent non-profit community organization that does really good things for the communities it serves.

Yet for months, ACORN has been mired in made-up controversies not of its own making. For instance, ACORN partnered with the U.S. Census Bureau, because ACORN is very good at counting hard-to-find people in liberal states. It was a perfect fit.

A perfect fit, that is, until a bunch of right-wing lug nuts claimed ACORN workers would try to influence the census by over-counting people. Hooey! To suggest that the workers who are counting people should be independent and non-political is stupid.

Everyone is political. And hello? Civics 101: politics is local. If ACORN wants to send out liberal democrats to count low-income minorities, why not?

And no more yammering about all the criminal prosecutions against ACORN workers who supposedly registered a bunch of non-existent people to vote, some even dead. Dead people can't vote, okay?

Oh, and that business about them registering the starting lineup for the Dallas Cowboys in Nevada was just a joke, folks. A harmless little joke.

ACORN's latest pimp-and-prostitute problem is just a tempest in a teapot. The only network that really reported on this fascist-fabricated pseudo-scandal is FOX. And doesn't that tell you something!



Just a few times, and I repeat, just a few, ACORN Housing workers counseled a pimp and prostitute on how to set up an illegal business, pay foreign, smuggled, under-age girls, commit bank fraud on their loan application to buy a house for their brothel, and cheat on their taxes to the IRS.

Stand down, already. Big whoop. Two white racist reporters with a right-wing agenda set up some hapless, rogue ACORN employees. Palin went rogue and nobody jumped on her, now did they! And have you seen that James O'Keefe on these videos? Who does he think he is? Joe Friday?

To those of you who say, "But Lawyer Mom, this happened in at least four different ACORN Housing offices! It's all on video!" I say to you, what's your point? Let's talk entrapment, shall we?

Besides, prostitution is the world's oldest profession. It's high time a fine organization like ACORN recognized that. All you Puritans can just get back on the Mayflower.



And no, I couldn't care less that ACORN has received $53 million of our tax-paid dollars since 1994 and is eligible for another 8 billion more. Please! Eight billion is a drop in the bucket. We won't even feel it.

The fact is, ACORN and its web of affiliates provide valuable services to low income people who would otherwise not get them, mmkay?

Just in Time for, umm, Something

Are your pants too tight? Is your wig a dreadful sight?
Do you wait for the night because your clothes are a fright?

Becalm yourselves, ladies, and fret no more.
Toss those ugly Snuggies back into your drawer!

For now you have new Snuggies from which to choose.
Put one of these on and you just can't lose!

With camel and leopard and zebra, oh my!
Whoever said clothes on a figure can't lie?

Wells, That Didn't Take Long

Today, sawing the legs off a burgeoning story, Wells Fargo fired Cheronda Guyton, its wayward senior vice president, for appropriating bank-owned property for personal use. In other words, she partied at a lush bank-owned beach house all summer long.

I posted about it here.

Wells Fargo told the LA Times, "a single team member was responsible for violating our company policies. As a result, employment of this individual has been terminated."

And, "We deeply regret the activities that have taken place as they do not reflect the conduct we expect of our team members," the statement added.

Alrighty then.

I still find it curious that Wells Fargo hasn't feigned ignorance about Ms. Guyton's beach bungalow festivities. No, "Gosh, we're shocked, we had no idea" statement issued.

Perhaps their "silence speaks the loudest." But with the story effectively killed, we'll probably never know and pretty soon we'll stop caring.

"Don't Try this If You Haven't Had Children"

Our story begins with a stunned Kim Clijsters. She had a baby just months ago and came out of a two-year retirement to try her hand at tennis once more.

And then BAM, baby, BAM. She beat Serena Williams' . . . temper. To some, it seemed a hollow victory. Because, come on. Who ever got high on a waive and a BYE?

But Kim is surely happy now. Serena's outbursts paved the way for Kim to advance and win the U.S. Open on her own merits, fair and square.

Here, Serena's unserene moments:

First, the tennis racket explosion:



Next, the fatal foot fault implosion:



Was she unsportsmanlike? Sure. But considering all that John McEnroe, Jimmy Connors, and Ille Nastase got away with, it seemed like a pretty harsh call.



On a brighter note, check out this clip of Roger Federer doing his match-winning over-and-under, granny-style shot.



As the announcer cautioned, "Don't try this if you haven't had children."

Something Smells Over at Wells (updated)

Cheronda Guyton, a senior vice president with Wells Fargo, allegedly helped herself to one of the more prestigious properties in the bank's foreclosure portfolio: an exclusive Malibu beach house (view from the back porch pictured here). Its former owners got Madoffed and lost the house and all its furnishings.

This summer, Ms. Guyton reportedly began using this bank-owned beach house, valued at $12 million, as her own. Neighbors claim she threw numerous and lavish parties; at one of these grand galas, a yacht was anchored off shore and a smaller boat ferried guests to and fro.

Here's the story from an ABC affiliate:



It would certainly appear that Cheronda Guyton is enjoying hefty perks as a senior VP of a bailed-out bank. The house is listed as a vacation rental for $60,000.00 a month. Oy vey!

Not surprisingly, Ms. Guyton did not answer reporters' calls at her office.

Wells Fargo, however, came out boldly with an ambiguously-worded statement:

"Wells Fargo & Company said today that its internal policies, including those that govern team member conduct, prohibit personal use of properties held by Wells Fargo. Based on these operating principles, the company has launched a full internal investigation of allegations that a team member was improperly using a bank-owned residential property in Malibu, California."

Indeed, reports the LA Times, Wells says it will,

"take decisive action with respect to any team member who may have violated Wells Fargo’s policies. The allegations certainly do not reflect the conduct we expect of our team members. We place the highest value on honesty, trust and integrity to guide our team members in making business decisions each day. We regret the disruption to the neighboring property owners since these allegations were made.”

Blah, blah, blah. Blather, blather, blather. This begs several questions, the biggest being, why hasn't the bank denied all knowledge of Ms. Guyton's supposedly illicit self-dealing?

And if Wells Fargo didn't know she was using the house, if it didn't know about these posh parties, complete with yacht, why not? It certainly knew there were offers to buy the house -- offers that, according to the listing agent, Wells Fargo "repeatedly rebuffed."

If we are to believe Wells Fargo did not sponsor or, at the very least, sanction these parties, then who picked up all the party tabs? Ms. Guyton? This seems unlikely, if her nearby-Los Angeles house in Fairfax is any indication. She and her husband Andrew paid $900,000 for it in 2004 -- modest by California standards, even then.

But assuming Wells Fargo was clueless, a notion that stretches credulity, then the high-flying Ms. Guyton is drawing far too large a salary, a salary the taxpayers are funding, no less. Because, you may recall, Wells Fargo received at least $25 billion in bail-out money from the federal government.

Look out, Ms. Guyton! I smell a rat scapegoat. I hear a bus.

9/13/09 correction (thanks to commenter Gretchen): This post has been updated to reflect Ms. Guyton's house is not in Marin County. And, as Gretchen points out, Fairfax is indeed a middle-class neighborhood.

So You Think I'm a Conservative . . .

Alrighty, sports fans. After that "Government can" video, I know what you're thinking. "That lawyer mom is a rabid conservative who wishes she had Palin's thin thighs and eerily perfect post-pregnancy bod."

But you'd be wrong. Really. Putting aside my Palin-thigh envy, I'm a fiscal conservative and a social liberal, for the most part.

Here, a few examples.

* Years ago, a friend was getting an abortion and she needed transportation to and from the clinic. But there were anti-abortion protesters blocking the front door, so I had to whisk her down the back alley.

This was right around the time Jimmy Swaggart was caught with a prostitute and Jim Bakker was caught with, umm, a muskrat, I think. This was when Robert Tilton laughed all the way to the bank while paid-for prayer-requests languished in a dank dumpster.

While I waited for my friend, I made a made a poster board proclaiming "Jimmy Swaggart Loves You." On the back, I wrote, "Robert Tilton Prays for You."

Amidst the hostile evangelists, I started my one-woman protest. Alas, my irony was lost on passersby, who honked their horns in disgust. But the anti-abortion protesters sure got it; they read my signs and, well, let's just say they weren't especially respectful of my small space on the sidewalk.

* In high school, I worked as a waitress at Poor Folks, where employees were forced to pronounce "Poor Folks" as "POE Folks" -- they've since changed the spelling to PoFolks; but at the time, it was spelled "poor" and this struck me as racially offensive. I was going to say "poor," or I wasn't saying it at all.

Working at Poor Folks, I once waited on a police officer, a sly, clever dog. "Oh, I know what I want, alright, but it's not on the menu," he said lasciviously, when I asked to take his order. So I called the manager over and deadpanned that this fine fellow wanted something that was "not on the menu." That male manager almost fired me on the spot.

* When Gloria Steinem came to my college campus to give a speech, I arrived an hour early with a gaggle of girlfriends. "A woman without a man is like a fish without a bicycle." We adored her.

I've read Andrea Dworkin, Susan Brownmiller, Betty Friedan . . . and I share many of their views. Oh, and I've got a major crush on Katrina vanden Heuvel (editor of the Nation).

So see there? I'm not a "Moral Majority," Glenn Beck-y, "Put Prayer Back in School" girl. No, I've just got a bad case of deficit fatigue.

To All the Liberals I've Loved Before

Obama speaks tonight. Yep. He sure does. I'm mixing the cocktails now.

And to get you all fired up, an itty bitty video.



What? You didn't think that was funny? Ha. May the Candyman song never leave your head.

Okay. Okay. This next one is apolitical and uproariously funny.



So . . . are we friends again?

Prostitutes? Nah. Just Politicans.

In 2004, when Romney was the Massachusetts governor, John Kerry seemed poised to win the presidential election . . . for a while, anyway. But victory for Kerry meant his Senate seat would be vacated and Romney could appoint a Republican to fill the unexpired term.

Gasp! So Ted Kennedy championed a change in the law that stripped Romney of his power to appoint. Due in no small part to Kennedy's efforts, the law now requires that the seat remain vacant until a special election can be held.

In support of replacing the governor's power to appoint with a special election, Democrats made these arguments:

“The overwhelming point here is the people ought to have the opportunity to check out the character of the people who will represent them in the Senate. We on the committee looked at whether we should have a temporary appointment in the event of an opening. If we were to allow that appointment, it would be wholly undemocratic and wholly unrepresentative of the majority of the people of Massachusetts.” – Senator Brian A. Joyce, State House News Service, 6/23/04

“This is an elected position, not an appointed position, and there’s been a process that’s evolved over a period of time where I believe the people should vote and voice their opinions in situations of significance.” – Former Senate President Robert E. Travaglini, New York Times, 6/25/04

Interestingly, just three years ago, Massachusetts Republicans proposed a bill that would allow the governor to make an interim appointment until a special election could be held. But the Dems killed it with a big NO.

But, darn it. Now that special-election law has become mighty inconvenient for the Dems. Massachusetts isn't able to hold a special election for Kennedy's empty seat until January, 2010. This would, presumably, be far too late for the newly elected senator to cast that critical health care vote.

So what to do? Change the law again, of course. The Massachusetts legislature will meet tomorrow to discuss doing just that.

After all, it was Teddy's dying wish.

What makes this especially rich is that Ted Kennedy got his senate seat because of the governor's power to appoint. Back when Ted was 28, two years short of the legal age to run, Papa Joe lobbied the governor to appoint a hand-picked place-holder.

The governor obliged and appointed a family friend to serve for the remaining two years, paving the way for Kennedy to take the seat when he was thirty, a seat he held until his death.

So what's sauce for the goose isn't always sauce for the gander. Not in politics, anyway.

Politics in the Classroom?

The word is out. Everyone knows that Obama will give a nationally televised speech to all public school children on September 8th. The next day coincidentally he will address Congress about his plans for health care reform.

So why the big brouhaha? Per White House staff, Obama's speech will exhort children to work hard in school and set personal goals for self-improvement.

So far, so good.

Before the President speaks, teachers are encouraged to pose the following questions to their students: "Why is it important that we listen to the President and other elected officials, like the mayor, senators, members of congress, or the governor? Why is what they say important?"

Mmmm, alright. This presupposes politicians say important things. But, okay.

Some of the suggested classroom activities, however, do give me pause; they don't sound like relevant follow-ups to a "do good in school" speech. Things like:

• Students can record important parts of the speech where the President is asking them to do something. Students might think about: What specific job is he asking me to do? Is he asking anything of anyone else? Teachers? Principals? Parents? The American people?

There was also a suggestion that children write about ways they can "help the President" but it has since been deleted from the government's website.

But what will be said in the classrooms? That's really my concern. Because there will be conversations, in classrooms across the country -- conversations lead by the teachers. And teachers wield enormous influence over their students. They frame the issues and shape the way children think and reason.

Watch the video below, of a teacher in North Carolina leading a classroom discussion about the presidential election. It was filmed by a Finnish crew working on a documentary about Obama supporters. (It's all in English).



Or just read a snippet of the transcript:

Harris (the teacher): We want to talk about the presidential election. I want to ask you, who are you pulling for? Raise your hand. * * * Any of you pulling for John McCain? That’s fine, say him as well.

Student: Obama.

Student: Obama.

Cathy [daughter of an American soldier]: McCain.

Harris: John, oh lord, John McCain. Oh Jesus, John McCain. Ok, now I wanna ask you something. Why are you pulling for John McCain? It’s ok, but why are you pulling for John McCain?

Cathy: I thinks it’s because my parents are going for him, too.

Harris: Ok, your parents are going for him. Why are you pulling for Ba-RACK. Barack.

Student: I just want a black president sometimes.

Harris: Ok, you want a black president.

Student: The reason why I want Barack Obama is because he’s making good changes in the good country and stuff like that.

Harris: So, he’s making good changes for our country. Now can you tell me just a little bit more, like what type of changes?

Student: Like not having big fights between Iraq and having soldiers killed.

Harris: So in other words, Barack is going to end that war in Iraq. What do you all know about that war in Iraq?

Harris [addressing Cathy]: Talk, cause your daddy in the military. Talk. It’s a senseless war! And by the way, Cathy, the person that you’re picking for president said that our troops could stay in Iraq for another hundred years if they need to!

[Camera pans to Cathy, who looks about to cry.]

Harris: So that means that your daddy could stay in the military for another hundred years!
____________________

So, yeah, because of the suggested "classroom activities," the whole thing is starting to feel creepy.

Am I concerned about what this particular president will say? Or what he will ask of the children? No.

But focusing on the content of his speech misses the point. Because this president sets a precedent for the next one. And the next president, I might not like so much.

If we eliminated the classroom activities altogether, especially given this, I'd be just fine.