Archive for February, 2004

"Honey, Will You…Where Ya Going?"

Monday, February 23rd, 2004

I am so glad I stayed up and watched the crappy local news for this story from the Wizards/Pacers NBA game the other night:


The crowd’s focus was distracted during the Wizards’ third-quarter rally by a bizarre stunt during a timeout. A man disguised in a bank-teller machine costume proposed to a woman, who appeared stunned and embarrassed and immediately ran toward the Wizards’ tunnel before a security guard stopped her. She then ran up the stairs among the fans and was booed. The arena’s replay screen flashed “She said no!!” The fans were abuzz over the incident for several minutes as play continued.

I saw the video, and it is freakin’ hilarious. Do whatever you have to do to see it (I’ll post a link if I can find it). It seemed to be some kind of instant-win contest. The woman was blindfolded, and had to stagger around until she could find the ATM, whereupon she probably thought she would win a prize. The guy was wearing the costume, an inflatable thing like those sumo suits (except it covered his whole body). So she finds it, and starts cheering as she pulls the blindfold off. And then the guy takes the suit off and gets on one knee. The crowd catches on that it’s all a fix, and starts clapping as he pulls out a little box. The woman is shaking her head, but at first I thought she was just in shock, as in “I can’t believe it.” But apparently, she meant “no.” She took off running and did not look back. The look on the guy’s face was priceless — I don’t know if I have ever seen anyone look so stunned.

I would love to know the story behind this. Did he accompany her to the game and just slip off for a while, or was she there without him, and if so what excuse did he give for not going with her? Did she go sit back in her seat for the rest of the game? They booed her? Will the Pacers ever let anybody try such a stunt again? Most importantly, did she say no because of the way it happened, or because it was him? Is it all over now? Clearly, I’m fascinated by this. If anybody hears a follow-up, please please let me know.

Milbarge, The Autobiography (cont’d)

Tuesday, February 17th, 2004

What I’m Doing at Work: Not today, of course, but yesterday I was working on an Anders case. You may have seen Bashman’s post here about a case where counsel filed an Anders brief on behalf of a client names Anders. Even if you don’t know what an Anders brief is, you could probably at least figure out that it’s kind of like a defendant named Miranda claiming he wasn’t read the Miranda warnings.

The basic deal is this. In the ’60s, after the Supreme Court held that criminal defendants have a right to counsel on their first appeal of right (Douglas v. California, I think), lawyers were faced with a dilemma: What if the appeal is frivolous? If there’s no right to counsel, a lawyer could say that this appeal is a sure-loser and tell the defendant he won’t waste his time, have fun in jail. But post-Douglas, these attorneys were obligated to at least file something. At trial, the lawyer can argue reasonable doubt and cross-examine the government’s witnesses even if he or she knows the defendant has no chance. But on appeal, the attorney can’t argue that the conviction was contrary to law if it wasn’t — the lawyer still has a duty of candor to the tribunal. So what is the recourse for a lawyer here?

The Supreme Court answered in Anders v. California, 386 U.S. 738 (1967). The attorney should state that he or she has reviewed the record and found no meritorious grounds for appeal. And then, the attorney can present any issues — even facially frivolous issues — to the court for review, with the understanding that the attorney isn’t signing his or her name to meritless arguments. (Normally, of course, arguing something that is totally without merit can cost an attorney all kinds of sanctions.) The court then takes it upon itself to scour the record for anything supporting the appeal. (Another neat tidbit: unlike most other cases, where the client has to speak through counsel, in an Anders cases the defendant-appellants can file a supplemental brief raising any issues they want.)

I find Anders cases interesting on several levels. First of all, until I started this job, I had never heard of the case, despite taking three or four classes in law school where it could have come up. A bigger rant about everything that’s wrong with law school will have to wait, but one thing I don’t like is that in the case method, every case seems to be incredibly close. I understand the pedagogical value of that, but (a) I think it can lead students to become ultra-Realists, because they see a bunch of 5-4 decisions with very little context for them so they start to think that the answer is whatever the judge wants it to be — I don’t have time to flesh this out more, but I saw it happen; (b) It doesn’t make clear to students that so many cases (at least on the lower courts) are pretty easy and decided unanimously — a subset of the first point, I suppose; and (c) it doesn’t show that some cases, like Anders, can be so easy that they create problems for the advocate.

Second, working on an Anders case for the court is, I think, an approximation of being an appellate lawyer. I have to look through the record and attempt to find any grounds that might support an appeal. We’re pragmatic about it, though. Every time the lawyer objected at trial doesn’t turn into an appeal over the admissibility of certain evidence. Some issues aren’t even arguably arguable.

The other thing is that nowadays in the federal system, with so few trials, there’s not much to argue in well over 90% of the cases. When the defendant pleads guilty, pretty much the only things to appeal are (a) whether the district court followed the rules in accepting the plea — ensuring it was knowing and voluntary, and (b) whether the application of the Sentencing Guidelines was correct. And, most U.S. Attorney’s offices include waivers of appellate rights in the standard plea agreement, so even decent issues are waived. (Note: a few things aren’t covered by the waivers and you can argue it shouldn’t be enforced, so it might not eliminate the appeal, but it does streamline it.)

Anyway, Anders is an interesting case that acknowledges how easy most cases are. Most of the ones I’ve worked on have been fairly routine, but the one I have now at least presents an issue or two worthy of discussion. If you plead guilty and waive your right to appeal, that’s about the best you can hope for.

What I’m Doing at Home: Cleaning my apartment, shopping for a computer. Both hassles.

What I’m Reading: Catching up on magazines, as usual. I’ve finally gotten into 2004 with most of them. In between books right now.

What I’m Watching: I taped Conan O’Brien’s appearances in Toronto last week and watched those. I like Conan, and these were some good shows. He created a bit of a fuss in Quebec by making fun of the folks there via recurring puppet character Triumph, the Insult Comic Dog. (Typical joke: “So you’re French and Canadian? That means you’re obnoxious and dull.” “I need a translator because the only French I know is ‘I surrender!’”) I will note, though, that the Quebecois who talked to the dog seemed to be laughing.

What I’m Listening To: Little of this, little of that. I’ve had “Eggman” from Paul’s Boutique by the Beastie Boys in my head. A little Randy Newman, a little Pretenders. Am I purposely trying to be eclectic? Yeah, a little.

What I’m Thinking About: My move coming up this summer. I’ve been reading guidebooks and looking at maps and news from there. I’m not sure if I’m just getting cabin fever here or if I’m getting tired of this job after my stupid work issue last week or what. But I’m starting to look forward to my next job (an elbow clerkship, for you late-comers).

What I’m Not Thinking About: I’m trying to get into a state of denial about the Democratic race. Surely they’re not dumb enough to nominate Kerry, right? I mean, they wouldn’t intentionally do something that ridiculous, would they? Surely not. Serenity now.

Factoid About Me: How about this: I once sat in a football stadium full of people as Billy Graham led the assembled masses in prayer. No, I didn’t go to a crusade — but wouldn’t that have changed the way some of you saw me! I was at the first game played in that stadium, and Graham came to “bless” it.

Speaking of prayer and large groups, that reminds me of a story from high school. At my graduation ceremony, one of the student speakers “spontaneously” (i.e., without official approval) asked the crowd to stand and led them in a recitation of the Lord’s Prayer. I sat silently, because I thought this was inappropriate in several respects. We were in the basketball arena, and there were a lot of people (my class was about 200). As it happened, my seat was on the end of a row, so half the gym could clearly see me sitting there while they all stood and prayed. (If it wasn’t “all,” it was darn near all.) My mother proclaimed herself “mortified” at my gesture.

The BTQ Review: Positively Fifth Street

Sunday, February 8th, 2004

As part of our sporadic review feature, I’d like to present Positively Fifth Street: Murderers, Cheetahs, and Binion’s World Series of Poker by James McManus (paperback available next month, I think).

McManus was a writer and amateur poker player when, in 2000, he scored a gig with Harper’s magazine to cover the World Series of Poker in Las Vegas (specifically, to cover the women who were now competing with the best of the male poker players), and the murder trial arising out of the death of Ted Binion, black sheep of the family whose casino hosts the poker event, Binion’s Horseshoe. In a bizarre congruence, the trial of Binion’s ex-stripper ex-girlfriend and her new lover took place at the same time as the 2000 WSOP. McManus, struggling in his conscience between “Good Jim” the family fan and “Bad Jim” the gambler, uses his advance from Harper’s and a future mortgage payment or two and joins the tournament.

And while McManus might have merely thought it would make for a better story to go Gonzo and try to bluff some of his subjects, he ends up outplaying almost all of the 500+ entrants that year (there were over 800 this year) to wind up at the final table. In the midst of this phenomenal run for an amateur (hell, for anybody), he tracks down the sordid story of Ted Binion and his killers. The book begins with McManus’s reconstruction of the murder, and the reader is immediately drawn into the alternate universe that Vegas seems to be. People just go there and lose their minds, or, for the unlucky ones like Ted Binion, their lives. And despite the family-friendly image the Vegas tourism folks have been painting recently, it becomes quite clear that parts of that town are still squarely in the Wild West.

Over the course of the book, McManus (as “Bad Jim”) starts to identify more and more with Binion, and he realizes how easy it would be to let the demons of the psyche loose for a night on the town. Of course, success in poker is all about not “going on tilt” and keeping oneself calm when one is in the midst of a euphoric victory or a crushing defeat. There’s a lot of interesting stuff in the book about the psychology of playing high-stakes poker, and the psycho-sexual-sadism that’s a little bit necessary for the game, or at least accompanies big successes and big failures much of the time.

I’m not much of a gambler; I’m a pretty risk-averse person. I spent a day in Vegas once and quit after losing six dollars. I’ve played a little poker, and understand the basics, but not the many nuances one must master to win even one hand against the pros. But Positively Fifth Street is still enjoyable for the novice or (I think) even the non-player. McManus explains the basics of Texas No-Limit Hold’em, the biggest game in the WSOP, with multi-million dollar purses. The book includes a glossary of poker terminology if you get lost, and there’s an extensive bibilography if you’re looking for more about the game.

But even without following all the details, anyone can understand when a player gets lucky after raising when he shouldn’t have, or gets unlucky when he had the best hand until the last card fell. You understand when Bad Jim takes over and raises with nothing against poker legend T.J. Cloutier, and gets the card he needs, prompting the even-more legendary Amarillo Slim Preston to declare that McManus “has the heart of a cliff-diver.”

Well, I won’t say that Positively Fifth Street takes you to the top of the cliff with him, but it’s a very enjoyable read. A book that would have worked pretty well either as a tale of a poker tournament or as the story of a love gone bad leading to murder works very well exploring the confluence of the two. And its publication was timed perfectly to ride the wave of popularity that big-money poker is on now. (Although, given that there was a skit tonight on Saturday Night Live parodying Bravo’s celebrity poker tv show, perhaps it has jumped the shark….)

A quick word about the play on words in the title, in case you didn’t get it. “Fifth Street” is the colloquial name for the final card played in a hand of Texas Hold’em. Positively Fourth Street is a Bob Dylan song, and I wonder if McManus was thinking about this lyric when he coined his pun:


You got a lotta nerve

To say you are my friend.

When I was down

You just stood there grinning.

You got a lotta nerve

To say you got a helping hand to lend.

You just want to be on

The side that’s winning.

The players get friendly, and there is certainly a great deal of respect for each other’s ability. But the smart poker player knows a smile can hide a bluff, and the most popular guy at the table is the one who just lost.

Look, this book has money, cowboys, murder, lap dances, and a Sicilian judge presiding over a trial in the desert. What more could you want? I had so much fun reading it, I’m going to give it our highest rating, a full six-pack.

Fodder for Feddies

Monday, February 2nd, 2004

Howard Bashman’s long-awaited interview with Ninth Circuit Judge Stephen Reinhardt is finally up. It’s interesting, but I can’t say I was very surprised at anything in it. It’s not exactly a secret that Reinhardt’s a liberal. Worth reading, though, whether you agree with the man’s views or not.