Right to a Trial

I taught at FSU for a number of years in the School of Criminology.  No matter what course I was teaching I always spent the first day asking the students questions and allowing them to question me.  It always surprised me the misperceptions of the criminal justice system.  Having worked in the system, these misperceptions are common even among those who should know better.  Please don’t take this as LEO bashing.  It’s not.  I have many friends and former students in law enforcement and believe they have a very hard job (especially the correctional officers – doing time on the job).  Here are a few myths that I have heard many times.  Please keep in mind that these are generally true statements and I am sure there are exceptions to each of my myths below because judges can basically do what they want until a higher court tells them otherwise. Sometimes that doesn’t even stop them…

1.       Everyone has a right to a trial.

Well duh.  Everyone seems to know that an accused person has a right to a trial, but most don’t realize they only have a RIGHT to ONE trial. 

I will cover double jeopardy in a minute, but most seem to think that appeals are a form of a trial.  They are not.  There is no NEW evidence submitted in an appeals court and these courts do not have juries.    The only things appellate courts decide are issues of law.  Furthermore, unless the accused preserves their right to appeal in the trial, they can’t appeal.  What does it mean to preserve the issue?  It means the person’s attorney better understand not only case law, but appealable ‘issues.’  An issue is a matter of law that is in question (see above – issues of law only, this does include procedures).  Usually attorney must object to the error when it occurs.  Since Constitutional claims are greater than other claims, the appellate courts will sometimes be more lenient to review the issue even if it was not preserved in the trial court’s record.  Also, appeals courts will only decide issues that ‘matter’ or errors that made a difference in the outcome at trial.  I have read many cases where the appeals court says that there was an error by the trial court, but that it was a ‘harmless’ error and did not affect the outcome obtained by the defendant.  An issue ‘matters’ when:  1. The alleged violation clearly deprives the defendant a fair trial.  2.  There is sufficient record to review the alleged violation. 

Each system has specific rules that dictate how appeals are begun.  These vary across jurisdiction.  Speaking of jurisdiction, another common misconception is that there is a single jurisdiction.  This is not the case.  Courts hear cases dependent on location of crime/event (where it happened), location of plaintiff (where those involved live), type of event (civil vs. criminal), size of event (how much was taken?), who files (state vs. individual), and specific law violated (can be federal or state).  Trial courts often put a time limit on appeals.  Sometimes as short as three days and sometimes ranging up to months.  In the federal criminal court system, the defendant must file a notice of appeal within 10 days of the judgment/order or the right to appeal is forfeited.

A court’s ability to hold a trial depends also on its original jurisdiction.  Mostly the Supreme Court is a court of appeal, but it can hear some cases as a trial court.  These cases are generally two states (or a state and the federal government) asking the court to decide an issue.  The Supreme Court does not have original jurisdiction for criminal courts.  Interestingly, the Supreme Court will not offer opinions on hypothetical cases.  Meaning when George Washington asked John Jay (first Chief Justice) whether a foreign policy was legal, John Jay said that the Supreme Court is limited to the cases in front of it.  That makes sense.  Think about it.  How many cases hinge on one piece of evidence that changes the outcome?  For example, did Zimmerman continue following Trayvon after he was advised against it by the operator?  That one answer can mean all the difference for the outcome in that case.    

Also, to appeal a person has to have ‘standing.’  Standing basically means that the outcome of the trial will directly affect the person filing the appeal.  The appellate court can only hear issues of law.  The appeals courts will not, cannot, decide issues of fact.  They accept the facts as found by the trial court.  The only thing the appellate court can decide is whether the lower court followed the procedures they were supposed to.  This brings us to what an appellate court can do.

It can reverse a decision by a lower court judge.  Most defendants hope for this or they wouldn’t file.  This means the appellate court finds the lower court wrong in its application of the law or procedure and disregards the lower courts order or judgment.  It can reverse and remand, which means the appellate court, finds that the lower court made a significant error and tells them to correct the error and try again.  The most common thing an appellate court does is called a PCA, or per curiam affirmed.  Appealing probably won’t matter much anyway.  Reversals of lower court decisions by appellate courts are not as common as you’d think.  A 2005 study in the Florida State University Law Review showed that 87-99% of federal guilty verdicts are upheld on appeal.  A study of state courts found that between 70-80% guilty verdicts were upheld on appeal.

Tomorrow – when you may be subject to double jeopardy.

Publix and the Immokalee Farm Workers

I’m not exactly sure how I stumbled across this webpage, but I am horrified.  In summary, the farm workers nearby are being treated criminally. 

Let me start by saying that I am not anti-capitalist.  I have owned my own business (with my husband), and know that business make decisions based on the bottom line.  That’s okay, but it shouldn’t ALWAYS be the deciding factor.  Also, let me add that for the most part, democracies don’t exist without capitalism.  (I know that not all democratic political systems are capitalistic now, but that is a rant for another day. Don’t even get me started about the ironies in Capitalism – again another day.)  The political economy of capitalism allows the most freedom for the highest percentage of population.  There is also evidence that no political system can escape rampant cronyism and other forms of graft and corruption.  Even with the problems inherent in its interpretation, America’s constitution has endured longer than any other in history.  Given what I have read about the problems we are currently facing, it may be time to water the tree of liberty with the blood of tyrants.  It is in need of manure.

My ex-husband is in love with Walmart. He thinks it is the glorious epitome of America. While I have eyed it suspiciously over the years, thinking that it is more the evil empire than Russia, I have also shopped there.  The prices are lower due to their ability to utilize the economies of scale.  What happens though when they are the only option for cheap crap in a community?? I doubt that crap will remain cheap when they are the ONLY business in town.  If I was Walmart, I would raise my prices where I could so that I can beat out other markets where margins are tighter.  Then, when I have destroyed the competition, I would establish larger profit margins.  Just saying… capitalism and all that.

This is similar to what is happening to the farm workers in Florida.  Big businesses are very much in control of what they can ask of farmers.  Farmers need big business to buy their product.  They are willing to cut corners and morality to do so.  These farmworkers are not asking much, a penny per pound for their labor.  That is something most of us won’t notice over the course of the year.  Here is some information presented on the Coalition of Immokalee Workers (CIW) webpage. (http://ciw-online.org/) 

•Like textile workers at the turn of the last century, Florida tomato harvesters are still paid by the piece. The average piece rate today is 50 cents for every 32-lbs of tomatoes they pick, a rate that has remained virtually unchanged since 1980. As a result of that stagnation, a worker today must pick more than 2.25 tons of tomatoes to earn minimum wage in a typical 10-hour workday -- nearly twice the amount a worker had to pick to earn minimum wage thirty years ago, when the rate was 40 cents per bucket. Most farmworkers today earn less than $12,000 a year.

•In a January 2001 letter to members of Congress, the U.S. Department of Labor described farmworkers as "a labor force in significant economic distress," citing farmworkers' "low wages, sub-poverty annual earnings, [and] significant periods of un- and underemployment" to support its conclusions.

•As a result of intentional exclusion from key New Deal labor reform measures, farmworkers do not have the right to overtime pay, nor the right to organize and collectively bargain with their employers.

•In the most extreme conditions, farmworkers are held against their will and forced to work for little or no pay, facing conditions that meet the stringent legal standards for prosecution under modern-day slavery statutes. Federal Civil Rights officials have successfully prosecuted seven slavery operations involving over 1,000 workers in Florida’s fields since 1997, prompting one federal prosecutor to call Florida "ground zero for modern-day slavery." In 2010, federal prosecutors indicted two more forced labor rings operating in Florida.

The Alliance for Fair Food (really, what a great name – who can be against fair food?) works toward increasing the pay of farmworkers, removing modern-day slavery conditions on farms, and creating a code of conduct of fair treatment for farm workers.  Sounds good to me, who wouldn’t want those rights?  Remember these guys working in the field not only have long hot days in the sun they also have to work with pesticides and dangerous farm equipment.  They don’t make minimum wage or overtime, and let’s not even go into benefits.  How is that fair? What really surprised me were the claims of slavery.  My first thought was that this was another over-blown liberal assault on business owners.  I was wrong.  Florida farmers have been prosecuted for slavery, as recently as 2010.  Like the company stores of long ago, these farmers hold the migrant workers in debt and  furthermore, some farmers have physically CHAINED workers inside box trucks.  How is this possible in America today?  The cost of our food just got a lot higher, and it had nothing to do with price. 

We have really cheap food in America.  Now, when I go to the supermarket, I am not grateful that it costs me $400 to fill the cart.  The costs have been increasing lately too.  As a nation, though, we spend less of our income on food than we have before.  The Economic Research Service for the United States Department of Agriculture published a report that states in 2010 Americans spend 9.4% of their disposable income on food.  In 1929, we spent 23.4% on food.  (http://www.ers.usda.gov/Briefing/CPIFoodAndExpenditures/Data/Expenditures_tables/table7.htm)  The more I read the more I am REALLY concerned about where my food comes from and how it’s handled.  

So, why pick on the grocery stores when they are not the ones hurting the farm workers?  Because they are in a position to do something about it.  I have worked in customer service in one way or another all my life (really aren’t more jobs involved in customer service at some point?  Even if the ‘customer’ is only your boss).  The gold rule of customer service is that the customer is always right.  The CIW has signed accords with McDonald's, Burger King, Subway, Whole Foods Market, Compass Group, Aramark, Sodexo and Bon Appetit Management Company.  They are asking for the grocery stores to agree as well.  Publix and Walmart are giant buyers of tomatoes.  They can demand better treatment for the farm workers.  Since they are giant buyers, they will likely get what they ask for.  Publix touts that doing the right thing is a top priority for them.   In a profile of the CEO in Tampa Bay’s Business Journal, Ed Crenshaw said that controlling prices was also a top priority for them.  I do not believe that standing by and supporting a system of abuse like this is an effective means of controlling prices.  As for me, I will not buy produce from Publix until stands behind ‘doing the right thing’ and makes an effort to bring some fair treatment for workers instead of just saying the words.

Bad Day - Round 2

Round 1: I had a bad day yesterday.  I get migraines.  Less often now than when I was younger, but about every six months or so I get a doozy that knocks me off my feet.  I have heard some people wonder why I have to take a day off because of a migraine.  The answer is, usually I don’t.  Usually, the medicine kicks in and makes me feel fairly normal pretty quickly.  Occasionally though, I get a monster headache that will not go away with medication, makes me puke at the slightest movement or smell, and blinds me.   Yesterday was one of those days.  I stayed in bed with the pillow over my head and the cat guarding my feet.

Round 2: Today, not long after I logged into work, I got the official notice. I will be unemployed soon.  It stinks, but I’ve been expecting it.  They have been having financial difficulties and half of the staff has been cut and the remainder took very large pay cuts.  I’ve applied for jobs in several places and hope I will hear something back soon.  Moving houses is still on for now, the new house will be WAY more affordable than this place.

I have been looking for ways to earn money in the meantime.  A friend told me that she always has friends looking for a housekeeper/cleaning service.  I think I will ask that she pass my information along.  Mostly I am worried about child support.  If I can’t keep up the payments (it’s close to half my income now) then the Department of Revenue will take my driver’s license.  That would make getting another job very difficult. 

Worries

So, we met a contractor out at one of the properties my husband is interested in last night.  His estimate of what it would cost to ‘fix’ the place to a livable state was much higher than my husband’s estimate.  When I asked DH why the new estimate was so much higher, he told me because he planned on doing most of the work himself and just needed the estimates for the bank.  Right…   

Just when, my DH, do you think you will have time to fix this place up?  Nights and weekends?  So this week that would include Saturday afternoon and Sunday.  Last week it would have included Sunday, Monday, and Tuesday evening.  He travels, a lot.  That place is not going to happen without a lot of time and energy and let’s face it, money being spent.  We don’t have a lot of any of that. 

So, I do what I do best… worry. 

Homestead Bound!

My DH and I took a look at a couple of properties over the past month or so.  There are a few that are within our price range and have decent acreage.  There are two in particular that he is especially interested in purchasing.  We are trying to stick local because the county schools are not very good and we would like to keep my daughter in her current school.  Her dad lives near our current house so using his address will keep her where she’s at in a magnet school.  Both of the locations my DH really likes are approximately 35 miles away (and half hour by highway). 

The first location is an abandoned motel/assisted living center.  It was built as a motel (I believe looking through tax records).  It has approximately 18 acres, mostly wooded.  There is about 5 acres cleared out around the house.  I like this idea and I like the picture my DH paints of what it can look like.  HOWEVER, what we would be buying is basically a concrete garage.  There is no wiring for lights, no plumbing for water (and the septic system is out of compliance according to the DOH), no air conditioning (in FLORIDA!!!), and the roof leaks.  It is a steel roof and cement block foundation.  It will cost A LOT (in time and money) to get the place livable; even if we just focus on fixing the apartment we would live in and leave the other 14 rooms for later.  This place is not my preference, but my DH says that we can retire here and keep an income coming in regularly.  We have planned to operate it as a bed and breakfast and offer sustainability classes (we can use some ourselves right now), paint-ball, horse-back riding, etc.  as well as an event location.  There is no fencing though, there is plenty of space and the place is layout nicely for large functions.  The goal is to have as many streams of income possible so that should any stop producing, it won’t put us in the bind that losing our jobs did last year.

The second location does not have the same opportunities as the first.  There are no rooms to rent.  There is almost 20 acres of ‘cleared’ land though.  The land had pine trees on it and about 3-4 years ago the pine was harvested.  Most of 15 acres is dead wood under overgrown weeds.  It’s not useable now, but a few weeks of burning and cutting, it will be – and it’s fenced.  The house is close to being ready to live in.  The floors all need replaced, but the place is solid and can be move-ready quickly.  There is plenty of fencing and the neighbor is already keeping two cows and a dozen goats on it.  Of course, I prefer this place.  I can see what my husband sees at the other place, but the second location offers much of the same (without rooms to rent) and we can be self-sufficient quickly.  The first place would need a ton of work.

I guess it comes down to how we are defining self-sufficiency.  Does it only mean providing our own food or does it mean something larger – working for ourselves and providing for our future with trade or income based on what we or our property offers.  My DH travels for a living.  He drives as far as 12 hours to provide specialized service for a large commercial company.  It pays well, but we both get nervous when he is so far from home.  He could do his construction related job closer to home, but not at that pay level.  I work from home and due to circumstances largely outside of my control; I may find myself unemployed again soon.  I will need another job, and it is unlikely I will find one that allows me to telecommute.  The good thing is, that even if I lose my job, this new property will cost us so much less that I will have less trouble making ends meet. 

This is trying times for me.  I don’t like to have unknowns in my future.  Life provides too many of them as it is… but to voluntarily sign up for more unknowns??? It goes against my grain.  How long will it take and how much will it cost to renovate Homestead #1?  I don’t know, but it will likely be more than I can bear.  I know that this is my husband’s dream though and I also get my dream of a large garden and a horse.  SO… Homestead! Here we come!

Birthdays

Tomorrow is my mother’s birthday.  She would have been 82 years old.  My husband’s birthday was Wednesday.  When we were teenagers, we would celebrate his and my mom’s birthday with a large cake and lots of friends.  I wonder what my mother would say about my DH and me homesteading.  She’d probably think we were nuts.  She may be right.

She battled me many mornings to get out the door and help with farm chores.  Saturday morning was for weeding, planting, picking, washing, cleaning, etc.  I hated it all. My mom had little patience for kids.  Mom didn’t like the conflict.  She avoided it. Once, she left my brother at the dinner table because he was stalling to get out the door and help with chores.  He ate an ENTIRE meat loaf while waiting for everyone else to come back when chores were done.  Not that stubbornness was a family trait (okay, maybe it was…).

When both my husband and I lost our jobs in 2010, we were very worried.  I went through a melt-down.  I had never been fired before and even if it wasn’t for cause, it really hurt my self-esteem.  When I finally stopped wallowing in pity, I looked around and saw that it was my chance to start writing.  Which I did, some.  I have a start of the novel I always wanted to write.  What I did the most though, was the background research to write it.

My novel is about a biological attack that cascades into the collapse of the infrastructure.  It was the reading of the massive information out there from the CDC, Homeland Security, etc. that really scared me.  Many people in the government understand how vulnerable we are to most any kind of attack.  One of the things going for us seems to be the terrorist’s lack of coordination.  (Yes, that is actually one of the defenses they are counting on…). 

I won’t say that the government is prepared to lie to you to keep you calm, but they do have script out there to help local government know what to say to their people to keep them calm.  Even after reading a year’s worth of manuals, guidelines, etc. I don’t think society will completely collapse.  Human beings in general are pretty resilient and Americans are ingenious when pushed.  So, I think, we will limp along for a while (maybe without power or limited power) and things will be rebuilt in time. 

Even trusting in human nature as I am, I don’t think everyone will survive.  If food stops arriving in the city every day and the hospitals shut down because of their surge capacity and power goes out, even locally, people will die.  Having read about the collapse of other society’s (i.e. Rwanda, Sarajevo, etc.), I don’t believe that there will be a Golden Hoard wandering aimlessly along the country side looking for food.  These are the same people that have let the government take care of them in so many ways that they will stay where they are and wait to be saved. 

I’m not saying that people won’t leave the cities in search of food, but like in Katrina, those people will be the ones that have family or friends in other places that will take them in.  The looting that went on in New Orleans was IN New Orleans and mostly committed by the locals (including the crooked cops).  I live in Tallahassee and we had our share of people that were displaced after Katrina hit.  Many stayed and took local jobs and rebuilt their lives outside of the mess that New Orleans became.  The same happened after Hurricane Andrew in south Florida in 1992.  I don’t see that Golden Hoards have been created by emergencies in other counties or even in emergencies in this country. 

That being said, we are taking no chances.  We have guns, and lots of ammo.  We will protect ourselves and our property, but most of all, we will prepare.  I don’t mean having two years’ worth of Ramen noodles (have you ever tried to feed three teenage boys on Ramen????).  We are choosing a lifestyle that does not depend on the local grocery stores and thus the cost of gas and regular delivery trucks.  We are going to make do with less and give up some of the things we thought were needed (i.e. new ‘smart’ phone, dining out, etc.).  In the end, we will see what happens, but as I’ve told my children. It is never a BAD idea to know how to grow your own food, or fix a tractor, or shoot a rifle. 

Tomorrow on my mom’s birthday, I’m going to say a prayer for her and put out some tobacco.  I’m also going to ask that we are blessed in our endeavors to become self-sufficient.  I hope she’s laughing at me.  I hope she understands that I understood the why, even if I didn’t want to pick the crops or get out of bed on Saturday morning.  I hope I make her proud.

Beautiful Day

Today is one of those days that makes me LOVE living here in the south. Two weeks ago it was cold and bordering on brown here. It never goes completely bare like up north. We have magnolias and palms, shrubs and tons of winter blooming flowers. But at some point every March, the furnace switch outside gets flipped and the lid goes on the crockpot we call Tallahassee. It is almost like the magician’s trick where he pulls a giant bouquet of flowers from his seemingly empty sleeve. He tugs and POOOOF … there’s a giant ball of color. That is what March is like here. Three weeks ago we remarked on how brown the lawns had all gotten in the neighborhood. Today, I step out onto my porch for a picnic lunch and BAM!!!! It’s GREEN!!!!!

...and yellow. My least favorite part of Tallahassee is also here. The high pollen count advisories seem to lead to migraines. Phooey.

Being outside also reminds me that in the event of a collapse of a banking system, power-grid, or just simply losing a job, life does go on. Nature does her thing and doesn’t pay us humans much never-mind. We can either lead her or follow, but we better get out of her way. That is both comforting to me and gives me perspective. These things I’m worrying about today – that are lending themselves to my migraine and back ache – these things will not matter in 10 years.

These things I know: These trying times too shall pass. There will be more trying times in the future, and those too shall pass. Not everything I hold dear will last, but I will work hard to make sure that some of those things I do hold dear will outlast me. I won’t be able to do everything I would like to do, but I can accomplish a lot if I work at it a little bit every day. My family will suffer losses that will feel unbearable, but those too will be borne. My hopes and dreams won’t all come to fruition, but some of them will. I might not be successful even if I try very hard, but I will certainly fail if I don’t try at all. Everything requires perspective. If I truly knew the burdens others were carrying, I wouldn’t be complaining about my problems.

I have a friend that I would call a health freak. She’s very sweet and we have fun hanging out together. She’s also a very good mother. We don’t agree on every parenting issue, but she always considers how her behavior and choices affect her child. However, she’s one of those women that runs regularly, eats only healthy stuff, and complains about not being able to lose that last five pounds. Truly, I see how that is frustrating, but it has never been something that brought me to tears. She told me recently that she had to back off complaining about those things. She said that she was so focused on the negative parts of her life, that she wasn’t enjoying all the positive parts of her life. She said that she had been crying in front of her son about something so small and the look on his face and his anxious reaction to her tears just broke her heart.

It breaks my heart that her son had to see that. I also know that if that is the one and only time he sees his mom melt down over something cosmetic, it won’t matter to him in the long run. HOWEVER, if he sees his mom melting down over small stuff all the time? Well, that can change a kid.

The story my friend told bothered me enough that I sat down and had a talk with my daughter about weight and body perception. She knows the dangers of obesity. Her father (we’re divorced) is overweight and she watches Biggest Loser and Dr. Oz’s show on Discovery. She’s also smart as a whip - that one. She knows her father is shortening his life by his eating choices. So I asked her if she was happy with her body. She said she felt too fat. I was shocked that my thin athletic daughter would feel fat!! REALLY?! So I asked if something I said made her feel that way. I had kinda gotten that feeling by how she was looking at me. My heart broke when she confessed that, yes, something I said did hurt her feelings about her weight. I had told her that she was getting too big in frustration the other day. She wears an adult women’s size 7. She’s 9 years old. She goes through shoes at least once a month. Last month I had comforted myself with the fact that at a size 6.5, her feet couldn’t possibly get much bigger. So, that day I was a little frustrated that she outgrew all her jeans over the course of the winter, at least four sets of shoes and boots and now wears my shirts out of my closet. I never thought that my careless comment would have hurt her feelings.

I felt bad for a little while. I need to watch what I say more carefully. She deserves that. On the other hand, like I said above, as long as this is an isolated incident this won’t affect her much. If I grouched about her weight everyday then maybe I would worry about creating body image issues. But I don’t, so I hope she won’t. However, it did teach me a lesson in watching my tongue and taking time to ask and listen.

Enough philosophizing today. I’m done working for my employer for the day. I’m going outside to work for myself for a while.