Friday, February 28, 2014

Watch What You Wear

So now we have it. The law of the land says you can burn the American flag but you can’t wear it to school.

That’s the essence of a ruling this week by the U.S. Court of Appeals in California -- wouldn’t you know it.

The quick background is as follows.

In 2010 a few white students at Live Oak High School in Morgan Hill, California wore T-shirts emblazoned with the American flag on Cinco de Mayo, where Mexican students planned a school-sanctioned celebration of Mexico’s Independence Day. While there was a school policeman on duty, officials feared campus violence because there had been racially charged problems on Cinco de Mayo the previous year. Thus, officials ordered the white boys to turn their flag shirts inside out or go home. Some left school, and for two days their parents kept them home because rumors flew that Mexican gangbangers from San Jose were going “to take care” of them.

As a result, parents of the white teens sued the school district, contending violation of constitutional guarantees of expression, due process and equal protection. But, a district court dismissed their civil suit before trial. The parents appealed to the Ninth Circuit federal appellate court in San Francisco, which released its decision February 27th, upholding the dismissal. The case is now dead for all intents and purposes.

I fully understand the rationale belying the decision.

Public school officials must protect children from violence and have wide legal leeway to do so, including limiting speech, enforcing dress codes (good reason for school uniforms) and setting aside search and seizure rights to accomplish it. Safety is the basis of this ruling. “School officials’ actions were tailored to avert violence and focused on student safety,” the three federal judges who ruled in the case stated. But, there were other avenues available, with a little forethought. Even the judges mentioned, in passing: “Our role is not to second-guess the decision to have a Cinco de Mayo celebration or the precautions put in place to avoid violence.”

If such culture-specific events stir passions toward violence in our schools, and in this case the troubles at the same school the year before showed this to be the case, the Cinco de Mayo event should never have been held. Indeed, such social events should be jettisoned from schools, leaving them for afterschool Facebook chat. Schools should focus on teaching kids to read, add and subtract and think critically. (Celebrating Cinco de Mayo, St. Patrick’s Day, or Oktoberfest isn’t a skill employers covet in the current cutthroat jobs market.)

While I think this ruling is a constitutional precedent that needs further review, I also have a patriotic objection to its (unintended?) spillover.

San Francisco’s Ninth Circuit is notorious for ignoring facts in support of its decades-long war for social justice. In this case these jihadist judges who are paid as much as $184,000 a year from the federal treasury and who retire at full pay, have jammed their collective thumb up Uncle Sam’s arse. In essence they’ve added shirts overtly displaying the flag of the United States of America to clothing that can be legally banned from being worn in our public schools, joining such clothing as gang colors, the Confederate flag, and other court-sanctioned “inappropriate symbolism.” Yeah. The American flag? Inappropriate symbolism!
Tell that to our nation’s heroes of all races who have fought and died to defend it.

Thursday, February 6, 2014

Big Black Dog

The big black dog that attacked me and ripped my leg to shreds, causing me to receive 29 stitches, wasn’t a “vicious animal.”

It was a big black dog.

I wasn’t really bitten. It’s an analogy, and the essence of a ruling by a California appeals court in a significant arson case in which the arsonist was sentenced to 25 years in the slammer, and then let go.

Yes, as a result of the legal precedent last month, the guy earned a “get out of jail free” card, as a Monopoly-minded dissenting appeals justice on the case put it.

Here’s what happened.

In 2009 a man and his girlfriend lived in a motor home parked with several other empty motor homes on a lot. After an argument, the man parked an empty motor home next to theirs -- in which she slept -- and used gasoline to ignite it. Before theirs caught fire, the woman saved herself by fleeing their motor home, with her dogs. (I don’t know if they were big black ones.) A jury later convicted him of arson of an inhabited structure, his third serious felony conviction under the state’s three-strikes law. Therefore, he was sentenced to 25 years in prison.

In the appeal, his attorney contended “evidence was insufficient to show that the motor home in which he and (his girlfriend) were then living was a structure.” California arson law defines “structure” as “any building, or commercial or public tent, bridge, tunnel, or power plant.” (Sometimes you just want to grab legal definitions by the throat and squeeze.)

Two of three appellate court justices hearing the appeal bought the defense lawyer's line. “Evidence that he set fire to or caused that motor home to burn does not support the jury’s verdict finding him guilty of arson of an inhabited structure,” they ruled. They glibly if not smugly added, “In short and simply stated, the motor home at issue in this appeal is not a structure, as that term is defined in the arson statutes.”

Thereby they dismissed the arson charges.

They said that to be a structure under arson definitions, the motor home, which of course has wheels, would have to be tied down like a stationary mobile home. Under that reasoning, an outhouse is a structure, provided it has a foundation worth a crap.

However, in giving an inch, the judges agreed a motor home is “property” for purposes of arson in California.

Even at the man’s trial, the commonsensical jury considered and agreed that the motor home was a “dwelling.” You know, where people live. And yes, their motor home was the man’s and his girlfriend’s residence. While the girlfriend escaped injury in the fire that destroyed their motor home, had she been a sounder sleeper the outcome could have been much, much worse for her -- and her dogs. So while she comes under threat of death by fire, the justices fiddle with semantics. Yes, the two legal bumpkins who decided this appeal looked at the big black dog, snarling at them, its bloodthirsty fangs bared for ripping human flesh apart, globs of sticky drool dripping from its teeth, and white foam covering its snout, and they judiciously concluded it wasn’t a vicious animal at all. Just, well, a big old black dog.

Lawmakers should listen to the barking, and review the state’s criminal definitions of arson now. I mean, come on, they include a “public tent”! Intentionally igniting a public tent is arson. Dare I argue there are many more motor homes than public tents.

But hold on, this case gets inaner if not insaner.

After the two judges yanked the legal rug from under the arson conviction, these paragons of pillared places seemed to like the feeling of it. What they did next is inexcusable. They added insult to injury by handcuffing prosecutors from charging the man with arson again, including simple arson of property. This even though these same meatheads had agreed the motor home was “property.” Weed-whacking through the legal underbrush they said law barred recharging him and using the same evidence.

Bottom line: a convicted arsonist is walking, maybe while arrogantly striking matches to light his path.

Agreeing motor homes aren’t “structures” in her dissent, a female member of the three-judge panel, wrote, sanely: “I respectfully dissent from the majority’s conclusion that defendant is now entitled to a ‘get out of jail free’ card. I am willing to assume, without deciding, that we cannot simply reduce the offense from arson of an inhabited structure . . . to arson of property. But even if so, defendant could lawfully be retried for arson of property.”

And he should be. But, thanks to this ruling, he won’t be.

I’m aware of the old saying: “dissent means you lose.” But, I think the dissenting justice is correct. Her colleagues stretched case law to fit the four corners of their far-fetched conclusion. (Did they privately cringed at the prospect of a simple property arson conviction sending this guy to prison for 25 years under three strikes?)

The state’s High Court should look at this one. It shouldn’t stand as precedent.

Monday, February 3, 2014

A Stinky Business

Newspapers have fallen on hard times. Thousands of reporters and editors have lost jobs, and it really shows in the quality of the newspapers still being published, nationwide. Years ago when larger papers had several levels of editing, the photo caption below never would have been published. An editor would have caught and killed it before being printed. Not so these days. Bloopers like this are published frequently. Today we not only read the newspaper, we laugh at it. Take a look at the caption for the photo below, and have a good laugh. It appeared in The Riverside (CA) Press-Enterprise, which was recently bought by the Orange County (CA) Register, after years of wasting away at the hands of The Dallas Morning News.

Here is what the caption published Jan. 30, 2014 actually says:

"While interviewing Sondra Berg, Santa Ana Police Animal Services supervisor, television reporters Bobby DeCastro (Fox 11) and Wendy Burch (KTLA 5) hold their noses to avoid the stench."

Did the animal services supervisor forget to shower before doing the interview? (What the caption-writer neglected to include was the "stench" emanated from a house where police found hundreds of dead snakes. I hope Sondra Berg, the police animal services supervisor, asked for a clarification.)

Monday, January 6, 2014

A Duck Dynasty of One

I call him Harry.

The name isn’t random, but descriptive.

You see Harry is named for Captain Harry Morgan, the right-armless character in Hemingway’s To Have And Have Not.

The Mallard flies into eat in our back yard each day, sometimes twice a day. We have plenty of cracked corn on hand to feed him, and we recently read in “The Ducks, Geese & Swans of North America” by F.H. Kortright, that it’s a favorite.

We live near a lake in the California Desert which has an indigenous population of ducks and other mostly migratory birds such as geese and herons. Usually the wild ducks keep to themselves, although when they come to shore you can draw a quacking crowd by spreading bread around.

At the Christmas turkey dinner table I referred to Harry in the politically correct vernacular of “our physically challenged duck” and it brought laughs. But, nothing was funny about Harry when we first met.

Last summer this sorry case landed in our back yard with 15 other ducks to dig for corn that had fallen from a backyard bird feeder, hanging from the patio cover. As my wife and I watched them eat, we noticed the other ducks picking on one scruffy looking, skinny male who erratically hopped like a spastic rabbit and dragged its body across the grass. Every time the poor, dull feathered thing tried to eat, other ducks attacked it, biting its neck, stopping it from eating.

My wife went outside for a closer look, and realized the duck with scraggly feathers on its neck where others had bitten it, had one leg, its left.

She filled a plastic cup with corn and approached the ducks. All but Harry moved away from her. He lay on his side and she put the cup of corn near him, and moved back. Harry literally dove into the food like it was water, eating like he hadn’t eaten in years. He wolfed down the dry corn so fast he choked. Other ducks quickly waddled in to steal the food and my wife raised her arms, scaring them back. Harry didn’t move. He gobbled up every kernel of corn, and I swore I saw a huge smile on his bill.

Over the summer Harry and as many as 60 other Mallards flew into our back yard to eat corn from two dishes my wife put out. In these months, two wonderful things have happened. Harry no longer looks scruffy and he has gained weight. His neck feathers are bright green and shinny, and he has learned to hop more gracefully on one webbed foot by placing it on the ground in the center of his body weight. Additionally, the other ducks don’t pick on him much and accept him.

Last week, Harry brought a friend. I call him Luke, after Luke Skywalker, whose hand was sliced off by Darth Vader’s light saber in “Star Wars.” You guessed it: Luke has only one leg, his right.
Word must be getting around.

(R.D. Byron-Smith's latest novel is Killing Socrates.)

Friday, December 13, 2013

DWR -- Driving While Rich


The word is not even in a common Webster’s dictionary.

Nevertheless, a judge sentenced a youth to probation for killing four people based on her belief that the teenager suffers from this non-existent psychological malady.

The boy faced a maximum sentence of 20 years in prison in the deadly, drunken crash in which he ran his truck over a mother and daughter and two others in Texas.

In considering a sentence for the 16-year-old, Texas District Judge Jean Boyd heard testimony from a defense psychologist who said the teen suffered from “affluenza,” a pseudo-psychological condition that boils down to “rich people do bad things because they don’t know any better.”

(Tell that to Bill Gates, Warren Buffett and 1 percent of all Americans.)

This affliction -- sounds like something you catch from touching money -- is rejected by real psychiatrists and became fashionable in a 2007 book of the same name.

Yes, you guessed it. The Texas kid comes from an “affluent” family, and his parents allegedly let him get away with everything (including murder?). So, because of his affluenza he didn’t know enough right from wrong to not have gotten drunk and run over people. (Poor kids obviously know better.)

So the kid is getting off with a decade of probation and must “rehabilitate” himself at a swank Newport Beach center in California, for which his neglectful parents are footing the $450,000 annual bill. (What? Obamacare doesnt cover it.)

We now focus on the judge. Judge Jean is no Judge Judy. Judge Jean Boyd graduated from South Texas College of Law, and has been chair of the juvenile justice committee of the Texas State Bar. But, I wonder whether she paid attention in evidence class when the professor talked about Kelly-Frye case law. The U.S. Supreme Court precedent says that if scientific evidence isn’t generally accepted by the scientific community to which it belongs -- in this case psychiatry -- it is inadmissible in court. Affluenza does not pass the Kelly-Frye sniff test, Madam Judge, even in sentencing, where rules are sometimes stretched. Additionally, anyone who vigorously reads Supreme Court decisions is aware justices often turn to dictionaries for meanings of words, and base rulings on common definitions. Had Judge Jean simply grabbed the Webster’s on her desk for a look-see, she wouldn’t have found “affluenza” in it. That act might have provided her a strong hint that it doesn't exist.
Probation for four manslaughters was an ignorant bow to fad science by the judge.

Saturday, November 16, 2013

Shooting After The NBA


Former Los Angeles Laker Javaris Crittenton is the latest NBA bad boy.

In his case, really bad -- like in murder.

 I remember watching Crittenton play at Staples -- a high-energy bench player who got minutes and scored some points.

 Yet, a harbinger of things to come should have been heeded when in December 2009, Crittenton and Washington Wizards teammate Gilbert Arenas displayed guns in the locker room after an altercation. Arenas, a bigger star, got the headlines and 6-foot-5 shooting guard Crittenton got a 38-game suspension.
Over a couple seasons in the NBA Crittenton’s contracts amounted to $4 million. That’s why it’s strange that Javaris Crittenton became an alleged member of a Crips street gang while in LA. As a result, he faces trial in Atlanta for murdering a mother of four, shot in a drive-by in August 2011, with Crittenton the alleged triggerman.
History does repeat itself in the National Basketball Association, or as former NBA star Reggie Miller benevolently calls it during TV games, “the Association.” Unforntunately over the years Association players have been associated with violent groups where flagrant fouls involve guns.

 For instance, it was nearly thirty years ago that another former NBA player reached back to his street roots, connected with gangsters, and ended up being charged with first-degree murder.

I remember watching Michael Donnell Niles of Cal State Fullerton play in the 1978 NCAA tournament, stealing the ball and slamming a dunk to bring his “Cinderella” Titans within two of favored Arkansas. While Fullerton lost, Niles went on to play in the NBA as backup forward for the Phoenix Suns.

When I saw Michael Niles years later, he was downcast, dressed in a dark suit, and appeared out of place. It wasn’t the court he was comfortable in, and he wasn’t playing for a trophy. He was on trial for his life for murdering his wife to gain $100,000 in insurance in Corona, California.
On Dec. 13, 1984, he drove to South-Central Los Angeles and visited old friends from Jefferson High School, where Niles had been a basketball star. He was willing to pay $5,000, he said, because “I want the bitch killed.” Gangbanger Noel Jackson took the bargain.
Jackson got a 12-gauge shotgun, rode back to Corona with Niles, and waited for the woman in their apartment. Niles fetched her from work and then faked an argument, storming off, leaving her at home. Jackson confronted Sonja Rose Niles, 29, but she ran down the street. He chased her, stuck the shotgun against her skull and blew her head off. As there always seems to be in these cases, a nosy neighbor saw Niles’s car speed away. And later, when Niles returned to find cops on his doorstep and was told about his wife, they claimed he “faked” grief.
Both men were convicted of premeditated murder, with the special circumstance of murder for hire, making them eligible for the death penalty. In the trial Niles and Jackson ratted each other out, claiming the other was the shooter. Jurors found Jackson was the gunman and gave him to death. Surprisingly, Niles, without whom there would have been no murder, was spared death and instead sentenced to life in prison without parole. I say surprisingly because in murder-for-hire cases it’s the person who hires the killer who is viewed by prosecutors as the real heavy.
Today as Niles sits in his cell it is easy to imagine that he often daydreams about his glory days in the NBA and how far he crashed. Feelings, potentially, not unlike those of another ex-professional basketball player facing murder charges thirty years later.

(From a new memoir by R.D. Byron-Smith to be published by Pilar Publishing in January 2014.)

Friday, September 20, 2013

Take That!

Talk about the bleeping arrogance of government. The Southern California city of Perris -- yes, pronounced like Paris, but much dustier than the real one -- takes the cake.

And we mean “take.”

It came to light in a recent case of “eminent domain” -- a couple of dirty words to regular folks. The city decided to build a road across part of a ten-acre vacant lot zoned for light industrial use and owned by a guy named Stamper and his partners. We’ll call them the “Stamper Boys.”

Well, the city (we’ll call them the “City Gang”) moved to “take” the two acres of land it needed for its road under eminent domain proceedings in Riverside County Superior Court. You know what eminent domain is, right? That’s when government takes your land for public projects and pays you something so that it doesn’t look like stealing.

In this case the City Gang offered the Stamper Boys $54,800 -- take it or leave it. The City Gang based the price of the two acres for the road on the vacant land’s value for growing crops. The Stamper Boys, if we may carrying the farming metaphor further, indicated the city was out of its gourd; that the land was zoned to build a factory and worth upwards of $512,000. (They hadn’t just fallen off the turnip truck, you know.)

They soundly argued that the land should be valued at its highest use as industrial property -- its current zoning, which, after all, had been set by the city.

But, what happens when you push a bully back? Like any street thug, the City Gang pulled out a Smith & Wesson in the form of a legal document. They said no matter what the Stamper Boys argued, the city of Perris would never approve the building of a factory on the remaining eight acres owned by the Stamper Boys without first requiring that the two acres the city wanted for the road remain undeveloped until the city built its road. At that point, the city would “take” the land anyways.

Does the concept of extortion come to mind? In brief, the City Gang had the Stamper Boys by their legal short hairs.

The case went to court and a two-pronged process was approved by a Riverside County judge. First he would hear evidence and rule on the constitutionality of the eminent domain “taking.” Then, a jury would be called to determine the amount of money the City Gang had to fork over to the Stamper Boys.

In the first court phase, the judge joined the City Gang, ruling in its favor. As a result, the Stamper Boys surrendered, agreeing to accept only $44,000 for their land, without going to a jury. Why did they capitulate? Because the judge ruled that the jury would have to determine the price of the land on its agricultural value and not on its zoned value for a factory. Essentially the judge tied the hands of jurors, giving them little wiggle room on the dollar amount.

The Stamper Boys rightly appealed, saying the land-taking was unconstitutional.

Recently a California court of appeal weighed in, overturning the case. They sent it back for a jury trial, saying that regular folks should decide whether the City Gang could rustle up the land, and if so, how much they’d pay, while noting the judge “erroneously usurped the role of the jury.”