04 December 2015

Iowa Voters

   Iowa Voters

  Upon reading a short newspaper article regarding an Iowa State Senator, Mark Chelgren, where he is alleged to have said that certain illegal immigrants should be executed, I did some follow up on the gentleman.  Senator Chelgren is from Ottumwa and is running for congress in the coming election.  On my Facebook page, Phelps Law Office, I referred to Senator Chelgren as an ignorant boob.  Later I explained that I would in the future refer to the Senator as an imbecile since that terms fits and I like it better.

     One is never sure that quotes appearing in the papers are accurate but Senator Chelgren is quoted as having uttered two statements that bear repeating:  "There is no reason to have felons here who threaten our way of life." And, "We have to make sure we are not incentivizing people whose only intent is to victimize."  Neither one of these statements is comprehensible, although they were made in the context of his commits about executing certain illegal immigrants.  Now I realize that journalists take the most blatant examples to repeat in the effort to sell copy, but if these two statements reflect the level of education and knowledge possessed by the Senator and are an accurate reflection of the Senator's campaign pronouncements, I must ask how he could be elected to a position in our legislature where he is sent to assist in making laws that we must all live by.

     If the people of this state are such that these statements by the Senator have meaning, I'm not sure there is much help for us.  It is the same for our presidential candidate, Mr. Trump:  I can here someone say now, "Oh man! No candidate has ever said that before--he must be really smart.  I'm going to vote for him."  I'm not so much alarmed that we have people who say the things these two people say, what is alarming is that there are other people, many other people, who think they should be elected to public office. 

13 July 2015

Jill Lepore and the Tea Party

     Jill Lepore writes well.  She is an historian, a professor of American History at Harvard.  Her book, The Whites of Their Eyes:  The Tea Party's Revolution and the Battle over American History is entertaining, edifying, and an intelligent investigation of the current Tea Party's view of the American Revolution.  Her view that the American Revolution in the minds of Americans has become fable with little or no basis in fact is amply illustrated.  The American Revolution has become what any particular group of people want it to be without regard of facts; facts become a part of the vast liberal conspiracy in the minds of the Tea Party people.  She refers to Glen Beck reflecting that George Washington was against socialism as a instance of complete disregard for anything resembling Washington's thought processes or the fact that socialism did not exit as an political concept when George was among us.

      A very amusing detail related by Professor Lepore is the author of the Pledge of Allegiance.  It was written by Frank Bellamy who intended it for school children.  The "under God" provision was not added until the 1950's.  Most ironic, Mr. Bellamy, was a pastor of a Baptist church and the vice president of the Society of Christian Socialist.  The Pledge was written in 1892 when socialists actually exited.  Pastor Bellamy not only was a socialist but had a firm belief that Jesus was as well.

      Another amusing "fact" brought into the discussion is the Treaty of Tripoli wherein the Senate of the United States in 1797 ratified the Treaty, Article 11 of which reads as follows:

          "As the government of the United States is not in any sense founded on the Christian     Religion...."

Many of us have the notion that the United States was indeed founded upon Christian principles which need to be re-established in order to avert catastrophe.  At the time the first ten amendments were adopted more than half the states had a state religion.  The denominations within a state who were not blessed to be the state religion didn't think much of this arrangement and were much in favor of separating church from state.

     The founding fathers, whoever they might have been, were in no sense conservatives; they did not do as their fathers had done before them; they created a new country in every sense of the word "new".  We can assume the negotiations resulting in our constitution were long and difficult and resulted in compromise in almost every facet.  The goal was the same for all of them--to make a new country.  They accomplished that.  They weren't perfect and the process is not complete.  Slavery was not addressed for the reason that no union would have resulted had the northern states insisted that slavery be abolished.  It took a long, bitter, and deadly civil war to resolve that issue.  Women could not vote until 1920.  The United States continues to be a work in progress; the founding fathers began the process, they will not finish it.

29 May 2015

Who lives next door?

     Who lives next door?  So the guy living next door to you is a registered sex offender.  This is horrible you say.  We can't have a sex offender living next door to us.  Call the sheriff and see if he can do something about it.  Our kids won't even be able to play in the yard now. Oh woe! What do we do?  The guy has kids too; he might be attending school events where other kids will be.  We need to call the school right now.

     These are remarks one often hears from people speaking about sex offenders.  The remarks come from people ignorant of what the sex offender did to qualify as a sex offender.  Most, if not all the sex offenders I have represented are pretty harmless folks.  One has the opportunity to get to know the people he represents and I can assure you that I have not conceived as a threat the possibility any that I have represented living in my neighborhood.  

     Who would you rather have living next door to you:  A burglar or a sex offender?  I'll take the sex offender.  Maybe we should make burglars register also.  We could institute a 2,000 foot rule from any residential area which would cause them all to move to some place like Nevada.  And how about speeders?  I really don't think a person who has multiple speeding tickets be allowed to live in a residential neighborhood where there are kids playing on sidewalks, streets, and intersections.  It is too high a possibility of one being hit by a car driven by an habitual speeder to allow them to reside anywhere there might be kids.

     It is too late for the legislature to address any of these issues, but for all party activists, it is not too early to begin thinking about the agenda for next year.  Its time that the legislature begins taking care of us decent folk and quit coddling criminals.


21 May 2015

Riley v. California

     The United States Supreme Court recently in Riley v. California ruled that law enforcement needs a warrant to search a person's cell phone.  Mr. Riley was arrested on the highway.  Taken back to the station, a detective looked at the contents of his cell phone resulting in further charges against Mr. Riley.  The Court held the a warrant was required; that a significant amount of personal information is located on a person's cell phone; and, that an expectation of privacy exists with regard to cell phones. The Court is correct in its decision and the rationale for it.  I would suggest that for many, the phone is the sole repository of personal information a person may possess.

     In most warrants relating to drug investigations, the request includes cell phones on the premises or on the person the subject of the warrant.  The rationale is that if you are selling or buying drugs the arrangements are being made through the phone.  This would be a fairly reasonable inference to make.  Too bad no one has land lines any longer where local calls can't be traced.  Phone numbers, text messages, and other forms of messaging can be retrieved.  One thing leads to another, once they find something of interest on your phone, they can obtain warrants for your on line services such as Facebook, twitter, etc.  

15 May 2015

Rodriguez v. United States

     The United States Supreme Court decided Rodriguez v. United States on 21 April 2015.  It is a good case.  The Iowa State Interdiction Team and presumably, the highway patrols of other states, stop out-of-state vehicles for minor infractions for the purpose of finding drugs.  The vehicles stopped are the customary  suspects--Colorado, Oregon, Washington, California.  But vehicles licensed in other states also draw attention of the Interdiction Team so don't be complaisant.  Iowa's Team has dogs for the sole purpose of dog sniffs or finding drugs.  Prior to 21 April 2015, the defense to a drug sniff was the time of the wait for the dog to arrive.  Since a traffic stop should be brief, a lengthy wait for a dog was not reasonable.  The Court in Rodriquez, however, decided the time of the wait was irrelevant.  The office requesting the dog must have a reasonable suspicion of illegal activity.  Being a man of color in a rental car from a west coast state is no longer enough.  You can bet that any officer worth his salary will be able to come up with something to say he had reasonable suspicion, but it is better than it was.  

28 April 2015


     The Steal: The Cultural History of Shoplifting by Rachel Shtier is a rather unsatisfying book--interesting yes.  She leaves us with the issue of what to do about shoplifting as it seems to be more prevalent now than before and it raises the cost of the stuff we buy.  She enumerates several reasons why people shoplift:  need, obsession, thrill, ideology, and profit.  The gamut of motives are illustrated from Abbie Hoffman's Steal This Book to Winona Ryder's episodes in Beverly Hills.

     There are two certainties related to shoplifting:  There will always be shoplifters and corporate America earns immense profits selling us stuff in spite of the amount of goods stolen.  So lets get over the fact that people do steal shit nobody really needs for whatever reason they steal it.  We shouldn't be exorcised over the issue or ring our hands in dismay.

     Our legislative bodies don't appear to understand that shoplifting like burglary and robbery and every other crime are statistical certainties.  We will always have thieves, burglars, and robbers.  I expect our local cave man had to watch his cave carefully to ward off cave invasions.  Most wars in the history of the world were for the purpose of taking things that belonged to someone else including their women.

     Our author seems to note with some consternation that in our consumer society, shoplifting has reached new heights.  Most assuredly it has.  The opportunities for shoplifting are almost limitless  from Walmart to 7 & ll; things to steal are minutes away.  There was a movie many years ago with
George C.  Scott called The Flim-Flam Man.  You can't flim-flam an honest man says George's character.  Fortunately for him there are very few honest men.  A percentage of human kind will take things that don't belong to them if given the chance.

     What one gleans from the book is that shoplifting has also become a contest between the shoplifter and the store and its effort to stop it with its loss prevention people and its technology.  It doesn't seem to be a fair contest.  On one hand you have the shoplifter and on the other hand you have the loss prevention employees, the cameras, the electronic tagging, the police and the courts.  No wonder a successful shoplifting venture brings thrill and satisfaction of a job well done.

06 April 2015

Our new state senator

     Our new state senator (District 15)) has as one of his first pronouncements  congratulated himself on  two new crimes having passed out out of the Senate.  One will now be able to commit the crime of stalking through the use of electronic devices.  I have not read the final language of the law, but the last draft appears to be directed to the use of electronic devices for the purpose of "stalking" which is now determined in part in the statute by the nature of the "feelings" of the intended victim as a result of the electronic communication; if terrorized or intimidated for example.  Now I know that "feelings" play a significant role in our social life.  Social workers, psychologists, psychiatrists, and therapists and counselors of all kinds consider feelings as an important part of everyone's life here on this planet.  The reality is that most feelings are momentary and fleeting lasting a few minutes and then gone replaced by other feelings just as transitory. We should not base a criminal statute on "feelings"; something so undefinable, changeable, and normally irrational.  I would suggest that the new statute was proposed by someone who had their feelings hurt and which has passed the legislature bodies without  a thought to the fact that they are increasing the need for us dreaded criminal defense lawyers, they are adding to the number of criminals who live amongst us, they are increasing the number of methods by which the various law enforcement agencies in this state can control our behavior.  I am willing to place money on the belief that no more than a couple of legislators gave any thought to the consequences of adding one more crime to the hundreds we already have.

     The second piece of legislation mentioned in the article is an act prohibiting the placing of a GPS instrument on an object (presumably an automobile) without a legitimate purpose.  Now if you are to prohibit a person putting a GPS device on someone's car, then simply do it; do not say you can not do it unless you have a legitimate purpose in doing it.  Why would you as a legislator place that language in the statute?  Now we have another act which is a crime if deemed to be by law enforcement.  Who is to decide what is legitimate?  Law enforcement of course.  We should not be passing laws that allow law enforcement to decide what activities are crimes.  The proper job of law enforcement is to enforce the laws not decide what they are.

10 March 2015

Harry G. Frankfurt

     Harry G. Frankfurt is a professor emeritus of philosophy at Princeton.  He has written a number of essays, one of which was published as a small tome called "On Bullshit".  That essay's first sentence is a statement of indisputable fact:  "One of the most salient features of our culture is that there is so much bullshit."  What I do dispute about the statement, however, is the inference that our culture is unique in the amount of bullshit.  Bullshit is endemic and it seems to me to be the result of thoughtlessness.  Thoughtlessness and bullshit are inseparable.  If one were to give a specific statement, idea, notion, or proposition some thought, i. e. analyze it, the bullshit inherent in the statement, idea, notion, or proposition would rise to the surface and be recognizable for what it is:  bullshit.

     In that bullshit is prevalent to our culture, which includes my profession--the legal profession and specifically criminal defense--it is a proper subject of discussion.  For instance, our sex offender registry statutes are premised on bullshit.  If you ask me whether I would rather have a burglar or a sex offender living next to me, I will pick a sex offender every time.  But no sex offender can live next to me because somewhere within 2,000 feet is a daycare or some such thing; the idea being of course that a) a sex offender will likely kidnap and abuse a child and b) "a" will not occur if the offender is required to live at least 2,000 feet from a daycare.  Neither "a" nor "b" are probable and very nearly impossible, however the probability of something occurring is not relevant and therefore within the realm of bullshit.

     Of course, the prime example of bullshit in my profession are the drug laws.  Thousands of people are serving most of their lives in prison because the state (federal and state) have pronounced drugs as destroying lives.  Apparently serving 20 years in prison does not constitute a destroyed life, but sniffing a little meth does.  Since there is no rationale for our criminal drug laws, they constitute bullshit.  One of Iowa's legislators when asked if he would support decriminalization of marijuana practically yelled no, that he wanted our children protected from illegal drugs which is of course complete bullshit.

09 March 2015

From "The Hero's Fight"

     Patricia Fernandez-Kelly, a sociologist trained at Johns Hopkins University in Baltimore has written a book entitled "The Hero's Fight".  In her introduction she sets out some thoughts on the situation of the slum people of west Baltimore which show a good understanding of not just poor people, but how they became poor and their relation to the governments they must interact with.  One of her themes is penalization as the method of control of the work force without jobs--the result of the massive movement of well-paying manufacturing jobs overseas.   The conservative emphasis on penalization is    co-existent with the liberal emphasis on social programs operated by social workers.  Both have the purpose of forcing the poor to live middle class lives and both are debilitating.

     Both penalization and social programs enforced by social workers hold that their clients, the poor, are morally to blame for their failure to adhere to middle class values. In Baltimore the areas where the author researched were one time prosperous neighborhoods of well-paid blue collar workers, now ghettos.  The book is a documentation of this transition with an attempt to understand it.  It is relevant to me as a criminal defense attorney who represents people charged with crimes, minor and major, almost all of whom have nothing.  Most are dysfunctional in one form or another; relying on disability payments from the state for what little money they have.  These people have no future, whether male or female, and their relation to the state is constant in either the form of police or in the form of social workers.

      I do not live in a ghetto nor do my defendants; we live in small communities in central Iowa or in Des Moines which does have an area which is considered by some as a ghetto, but not really--nothing on the scale of our major cities such as Baltimore.  Here the same forces are at work however, created by our legislature-penalization and social programs both aimed at correcting the behavior of the poor.  We can't kill them like Hitler did but we have decided we can change them and if they don't change we put them in jail or prison and take their kids from them.  The one thing we can't do apparently is to accept them for what they are.

     Ms. Fernandez-Kelly thinks that two factors would make a difference:  education and property.  We don't often hear property as a factor in behavior but as they say in the classroom, it is intuitively obvious.  If a person has property, that person behaves in ways different from a person who has no property.  A person who owns his house lives differently in that house than a person who rents his house.  If you have nothing, jail isn't so bad.  In jail, you will be able to socialize with people like yourself; you will have three meals a day; you will have a warm bed in winter.  Sometimes it is better than being homeless.

04 March 2015

  •      Zygmunt Bauman wrote an interesting book titled Modernity and the Holocaust.  His major premise appears to be that without the modern bureaucratic organization employed by the Nazis, the holocaust could not have happened.  The bureaucratic organizational ability of the modern world makes it entirely possible that the holocaust can repeat itself.  One of the factors in this modern, bureaucratic world we live in is encapsulated in the following sentences from his book:  "For those who do not possess the know-how, responsible action means following the advice of the experts.  In the process, personal responsibility dissolves in the abstract authority of technical know-how."  Is it true that by following the advice of an expert on what to do, how to do it, where to do it, how long to do it, when to do it, etc. you are not taking personal responsibility for your actions or is the responsibility of a person to follow the advice of the experts simply, without any of your own input, for the reason that the expert knows best

  •      We do have options.  We can compare experts; we can compare expert opinions; we can view expert opinions in relation to our own knowledge and experience.  If one has paid attention through his or her lifetime and has the ability to cogitate, there is much advice that should be rejected out of hand. Do I take the advice of an astrologer?  No.  Do I take the advice of my auto mechanic?  Most of the time and if it doesn't cost too much.  Do I take the advice of medical practitioners?  Usually. but sometimes with a second opinion.  I like to think that I take personal responsibility for most of what I do.

  •     Now, the mantra in this country is of taking responsibility for oneself.  Of course, this is simply meaningless drivel in that the last thing your various governments want to see is its citizens taking personal responsibility for anything other than, maybe, having a job whether it pays or not.   The national pastime seems to be victimhood.  Everyone wants it, looks for it.  The latest effort of victimization is the new emphasis on bullying and how it should be eradicated.   Bullying, regardless of how defined, is a constant on this planet.  I suspect that a coyote eating a rabbit is a form of bullying as defined.  We have a list without end of possible victims:  Victims of domestic assault, victims of drunk drivers, victims of crime, victims of pollution, victims of genocide (this one might actually count), victims of fatty foods, victims of internet scams.  As I said, the list could be endless.

  •      Victimhood can and often does show a failure of personal responsibility.  In order to be a victim, you have to be recognized as such; it must be a published event that constitutes victimhood.  Along with the publication of the event creating a victim is usually the expert to deal with the trauma of victimhood; each variety of victimhood having its own brand of expertise which has been acquired through advanced college or university degrees.  The core purpose of the expert is to inform the victim how he or she should feel or think about being a victim. 

  •      Interestingly, in the world of criminal justice, the criminal is defined as the person creating the victim, causing the victimhood.  The criminal is not allowed the privilege of victimhood.  And so far as he or she is creating victims by his actions, he must be punished.  Punishment is not deemed a form of bullying.  There is no rational basis for this other than it would not be compatible with any of our accepted notions of victim and criminal.  The so-called liberal segment of our thinking has acknowledged to some degree that criminals may be considered victims of their environment and this should be a factor in our sentencing decisions.  But again, this sentiment is mostly spoken and not acted upon.       

01 February 2015

Harper Index

     The Harper Index in this issue of Harper's referencing The Salt Lake Tribune claims there have been 39 people killed since 2010 by gang and drug violence and 46 people killed by Utah police.  I believe we have become a society of people v. police.  Our legislative branches have given law enforcement much too much power over the citizenry.  

17 January 2015

     Probation is much like religion;  you must repent and make vows.