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So You Think You Can Judge

By Scott H Greenfield

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The question of how to select the best judges has long stymied lawyers and academics alike. Politicians, on the other hand, have always had an easier time answering the question: Let them pick amongst their friends and supporters.  In coal country, a new answer arose until the Supreme Court’s Caperton v. Massey decision: buy the bench with a ton of cash. 

But Ken Lammers at CrimLaw has been working on an alternative, and has clearly put in a lot of time thinking outside the box.  He’s come up with a very interesting proposal.  These are the rough details, and Ken’s fleshed out the proposal far more than appears here, so it’s worth your time to go straight to the horses mouth to get the full idea.

Initially, the possibility of becoming a judge must be an opt in choice. If an attorney is interested in becoming a judge he should be required to have taken a test similar to a Bar exam within a set period of time prior to the judicial position becoming open (3 to 5 years probably being the best time frame).

Next should be peer evaluation. Members of the Bar who practice in the jurisdiction wherein the candidate would be eligible to become a judge should be confidentially polled as to their perception of the candidate’s demeanor, perceived knowledge, and ability to communicate.

Finally should come an examination by a group of judges. These judges should not be from the area of the State wherein the attorney practices - preferably not even from the same half of the State - and should not know the lawyer . . . The candidates with the top 5 combined scores should be interviewed and the judges should score the candidate on his demeanor, ability to comm! unicate his ideas, and apparent ability to apply legal knowledge.

Think about it.  It’s quite good.  Merit based, with competence as tested by objective and subjective means.  No, it’s not perfect, and can be picked apart at both of the subjective legs, since peer evaluation might put tough prosecutors at the mercy of former adversary defense lawyers or vice versa.  Moreover, a zealous advocate might not be perceived as having the demeanor necessary to be a judge, when it’s somewhat unfair to take stock of a person in one position and apply it to another.

But consider the imperfections in light of a system that is far less perfect, far more prone to favoritism, leading to lazy, nasty, incompetent people sitting in judgment of others.  The idea is to build a better mousetrap, even if there can be no perfect one.  It seems that Ken’s process is far, far better than either the current elected or appointed systems that are used.  The former, elected judges, is a joke of the worst order,  The ! latter is rife with abuse.  Even a moment’s thought about the current options makes Ken’s idea seem glowingly better.

Imagine a judiciary built on ability rather than friendship or political contributions.  I don’t impugn all judges, as there are many excellent, capable judges on the bench.  And there are some mutts.  Mean spirited and ignorant, clearly biased and devoid of soul.  People who have had the experience of dealing with a bad judge leave with a hatred of the law and the system.  It’s not just because they lost their case, as I’ve seen good judges send losers away with a better understanding of the law and a sense that, while they lost, they had their day in court and were given a fair hearing. 

All-in-all, I think it’s a better system for selecting judges than I’ve seen anywhere. However, I doubt we shall ever see its like.

Someone will cry, why not?  Aside from the fact that the institution does not change direction easily, and the love that official people have for doing things the  way they always have, there are strong vested interests at stake here.  Debts to be paid.  Power to be managed.  Even the academics will ignore a better mousetrap if one of their own didn’t come up with it, because ideas from trench lawyers like Ken are too declasse to be given serious consideration.

But Ken’s onto something here.  And if the powerful and brilliant people of our nation were honest, they would give the Lammers Method some hard thought.


Was It The Cop Or The Taser?

By Scott H Greenfield

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When Brian Cardall's wife, 6 months pregnant, dialed 911, she couldn't have expected to end the day as a widow.  Cardell, a doctoral student in molecular ecology, had an episode of mental illness while passing through Hurricane City, Utah on his way home from his parents.  His wife called for help.  Things didn't turn out well.

"During the incident, a Hurricane City Police officer deployed a Taser and the subject lost consciousness," Undersheriff Jake Adams, of the Washington County Sheriff's Office, said in a prepared statement. "The subject was treated within moments by EMS personnel, but was pronounced dead after being transported to the hospital," the statement continued.
According to a witness, Cardall removed his clothing and stood on the side of the road, as if directing traffic.

The woman says Cardall was calm; he'd taken off his clothes and was waving his hands as if he were directing traffic next to the officers on the side of the road.

"As I looked back, he was still standing there. The kids looked back. He was still standing there. He was not running at all the whole time I was driving," the woman said.

She was able to view the scene for about a minute and didn't see Cardall behaving aggressively toward police.
Not exactly worthy of death.  But that's a disingenuous statement.  I'm sure officer had no intention of causing Brian Cardall any harm.  After all, he was using less-than-lethal force.

Taser International is defending their safety record, saying no device is 100 percent risk free, but its safer that other options.
When it comes to the appropriate time to use a taser, each law enforcement agency has it's own policy.

Hurricane police are not commenting yet use a general use of force police when in the line of duty, similar to the Washington County Sheriff's Department.  "In the Sheriff's Office we consider the taser to be a less lethal weapon so in our use of force continuum, we would put it on the same level as pepper spray," says Adams.
Taser International statement, however, is most disingenuous.  The officer involved, aside from likely having inadequate training in the handling of mentally ill individuals, was led to believe that a Taser is a quick and easy way to deal with anyone for whom reasoning fails.  If you can't order them to do what you want, there's always the Taser.
The problem is the Taser.  It's too easy.  It's the "go-to" tool for anything that might otherwise require some patience, thought and discretion.  It's marketed that way, and used that way.  Why try to calm down a mentally ill man when you can immediately subdue him?  Why waste time when you have a magic weapon that fixes problems in a flash?

Before Tasers, the choice was limited.  Shoot to kill or be forced to physically beat a person.  The former had reporting consequences, and the latter took a certain degree of personal connection that most cops won't want when dealing with a non-violent or otherwise non-criminal person.  Sure, they will happily beat the perp, even if just for fun, but to physically harm someone perceived to be innocent is a harder, more personal, problem.  Now we have Tasers.

It's too late to change the mindset about Tasers, I suspect.  Not for the officer who will live with the fact t! hat Brian Cardall died at his hand.  Not for the officer who will think of the child born without a father because he couldn't spend the time to wait out the episode and gain control without using a weapon.  The officer will live with this for a long, long time, as will the Cardall family and the unborn child.  But police everywhere else will shrug this off as the anomaly, the thing that will never happen when they use a Taser. 

Tasers.  They are just so easy.


For almost 25 years, Scott H. Greenfield has represented clients charged with crimes or the targets of investigations in state and federal courts across the United States. Scott has been awarded an AV rating, the highest possible, from Martindale Hubbell, and is recognized in “Who’s Who” in the world, America and American Law. He has served as a legal expert and analyst for television news shows from “60 Minutes” to “20/20”, and ABC, NBC, CBS, BBC, Court TV and Fox.

Scott’s cases have been the subject of a book, magazine articles and television shows. Scott is regarded as one of a handful of top criminal defense lawyers who excels in both trial work and appeals. His written work is considered some of the best in the nation, often writing Op-Eds, Amicus briefs and Editor Letters for Bar Associations and other well known lawyers. Scott is a lawyer’s lawyer, representing other attorneys, their family members and even judges when they find themselves in a jam. More info:

Catcher in the Rye Copyright lawsuit

By Matt Welsh

J.D. Salinger, the 90-year-old, reclusive author of “Catcher in the Rye”, is filing a lawsuit to stop publication, sale and advertisement of a novel that depicts his character, Holden Caulfield, the iconic alienated teen hero of “The Catcher in the Rye” as an old man. “The Sequel infringes Salinger’s copyright rights in both his novel and the character Holden Caulfield, who is the narrator and essence of that novel,” says the lawsuit, filed in U.S. District Court in New York.

J.D. California, the author who wrote “60 Years Later: Coming through the Rye” defends his book by saying it is a parody, not a rip off. The new book’s web site describes the character, “Mr. C,” who flees his nursing home and “embarks on a curious journey through the streets of New York.” The book is already available in Europe and the United Kingdom. It is scheduled to be released in the United States in September. The lawsuit is attempting to get sales stopped and books already distributed to be recalled and destroyed.

J.D. Salinger’s lawyers argue that “60 Years Later” is not a parody, but simply an adaptation of the original “Catcher in the Rye”. Authors have the exclusive rights to adaptation of their work. Salinger authorized a 1949 movie based on one his early short stories, but has never authorized adaptation of any of his other works. He even turned down an offer from director Steven Spielberg to make “Catcher” into a movie. Salinger spoke out in 1980 about this issue when he said, “There’s no more Holden Caulfield. Read the book again. It’s all there. Holden Caulfield is only a frozen moment in time.”

Aaron Silverman, President of SCB Distributors, the distributors of “60 Years Later’ and defendants in the lawsuit, responded by saying, “We believe we have the right to distribute this book and publishers believe they have the right to publish it.” Silverman calls “60 Years Later” a

work of “social science fiction.” He says it does not plagiarize because it sets a well-known character in an alternate place and time – as literature has done for centuries. A similar legal argument was made when a 2001 novel, “The Wind Done Gone” was written as a parody of “Gone with the Wind” from the perspective of a slave. The Court ruled that the book was protected as a parody of a well-known work.

Salinger’s lawyers disagree and say “60 Years Later” deserves no such protection and that the "The sequel is not a parody and it does not comment upon or criticize the original…It’s a rip-off pure and simple.”

There is no objective way to determine whether or not “60 Years Later” is a “rip-off” or a “parody”. Copyright law is often considered the metaphysics of the law because it attempts to protect that intangible force called creativity or original expression; while still allowing for future authors to comment, criticize or parody the original author’s work. Copyright law also significantly limits free speech because it prevents authors from adapting and in some cases even quoting previousauthor’s works. There are no clearly defined legal tests to determine what is a parody versus a “rip-off." The Court looks at various subjective factors and their rulings can be inconsistent, unpredictable and although never admitted, can be based on the Judge’s personal preferences, tastes and opinions of the particular author.

In my opinion, “60 Years Later” is not a parody, but a “rip-off”/adaptation of the original Catcher because it is not commenting or criticizing upon the original Catcher. Rather, it is simply making a sequel or adaptation of the original work.

Matthew Welsh graduated from Indiana University-Indianapolis Law School in 2007. After graduating from law school, he worked for a top entertainment agency in Hollywood. While working in the entertainment industry, he realized the importance of raising public awareness for emerging spiritual entertainment. This drove him to create, the news source for spiritual entertainment. He is also the author of The Bottom Line and speaks to high school and college students about how to turn your passions into your career path.

He can be reached at

Disclaimer: The views and opinions expressed in these columns are solely those of the writers/interviewees and do not necessarily represent those of the editor/publisher. 


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