Lawyers and Dentists and Birthers - oh my!

Today's Post has an article on a woman who is a big name in the birther movement. She's a lawyer, so she's represented some of the people who believe they should not have to be deployed because Obama's not a legitimate commander in chief. So far, her cases have been dismissed. Her core argument is that being a natural born citizen requires more than just being born in the U.S. It requires that one be born to two parents who are also U.S. citizens.

Also, she thinks Obama was born in Kenya, and his mother faked his Hawaii birth certificates. Naturally. Furthermore, she thinks that there are about 600 FEMA concentration camps where the government keeps dissident citizens.

And on the side, she's a dentist. (WTF?)

Arson and the Death Penalty

A friend sent me this article from the New Yorker. It follows the case of Todd Willingham, who was put to death in Texas, and there is now some suggestion that he could have been an innocent man. Take what you wish from that portion of the article. The reason I post it here is that I find the facts interesting due to my intimate knowledge of what makes arson. Thank you Law Skills III. I think that based on this article, the Flinders v. Mismo materials may need to be updated.

"Citizen Judges"

Japan gives jury trials a shot.

From Nerd to Nursing

It's funny. Prior to law school, I felt that I was very successful in my job. I felt that I was competent and that I was striving for better efficiencies whenever they were available. I never once felt that my being a woman had any bearing on my ability to do that job.

Last summer I was pregnant, and though I went to the bathroom constantly and ate continuously, I never felt like I was treated any differently in my summer internship writing memos on taxpayer fraud. I was called a "nerd" by all who did not understand my passion for tax law. Life was grand. Well, the work was grand. The vomiting? Not so much.

This summer I am once again writing those tax fraud memos, and the work could not be better. It is my dream job. I could not be happier in the work I am doing, but I have a baby now. I need special accommodations now more than I did when I was pregnant. It is easy for a woman working at a desk to use the restroom and snack the entire time she is at work. It is less simple when a woman needs to pump milk and has to get home to relieve her mother-in-law, who is acting as de facto nanny.

I cannot stay late at work, which means I am missing out on all the networking opportunities, known familiarly in the legal world (and every other business) as "happy hour." I spend 40 minutes a day pumping milk, which means that I have only 20 minutes for lunch, which is fine, except when I really need to run an errand, like go to the Post Office. I could take a longer lunch, but then I would have to stay late, which I feel like I cannot do because my mother-in-law is waiting at home with the baby.

The worst part is that I am stationed in a cubicle for this position, which is to be expected, but when I want to pump, I must go into the office of another woman, who is working at another office for a while. Surrounded by pictures of her family and assorted viney plants she seems to collect, I attempt to relax so I can collect enough milk so that my son can get these precious antibodies that doctors keep going on about. On my first day, one of the bags of milk leaked into the refrigerator over someone's lunch. The woman with the destroyed lunch informed me so I could clean it up, calling it "a little gross," and thus creating my reputation as the nursing mother.

Thus, I am not the intern from Richmond. I am not the intern who came to law school because of tax. I am not the intern who knows the names of the tax analysts at various major papers. I am not the intern who worked in the same field last summer and thus has more experience in this world than the other interns. I am the intern who, on her first day, spilled breast milk onto someone's lunch.

It is these moments that make me feel like I have been sold a bill of goods. I have been told I can be anything I want to be. I have been told that I can have it all. I have been told that women and men are equal in the work place. I now know these ideas to be only half-truths. Women and men can often do the same job equally well, but if a person has other priorities in her life, outside of work, then there will be disparities.

Parenthood one of those priorities that can change your ability to do your job, and while mothers and fathers can share many of the responsibilities of raising a child, there are some that will always fall to the mothers (in particular breastfeeding and, you know, giving birth). For the first time, I understand why "feminist" women, with whom never much identified in the past, fight for equal pay. Mothers cannot possibly compete with fathers and non-parents in the workplace.

I know I chose to have a child, and of course, I am glad I did. I just wish I had been a little more prepared for the workplace. I wish I had been prepared for the fact that motherhood would so impact my identity in the workplace. Everyone told me that I would not be able to handle being away from my child, so I was prepared for that change. I was not prepared to become the nursing intern, and for once, I miss being the nerd intern.

Disbar Bybee!, cont'd.

Apparently, I am not the only one who thinks that we might not have a good case in U.S. courts against the CIA operatives in Gitmo; Bybee himself discussed the application of the Cheek case as it pertains to torture. Apparently though, he and I are wrong. It doesn't sound like Cheek would apply after all. The discussion below this post points out the difference between specific intent and willfulness. In this case, the operatives would have had the specific intent to commit the acts of torture, and the good faith defense in Cheek does not negate specific intent, only willfulness, which states that people need to know what they are doing is illegal. Therefore, the operatives would need to show that there was a requirement of willfulness that applies to laws banning torture.

Disbar Bybee!

In the wake of the release of various torture memos, President Obama has stated he does not believe that the people who committed torture under the impression that they were legally allowed to do so should be prosecuted. I am not certain I agree with that thinking, but the question is: if we wanted to prosecute them, could we?

Certainly, anyone can prosecute them, but would we be able to put someone in jail for such behavior? In Cheek v. United States and Ratzlaf v. United States, the Supreme Court held that if you have an honest, good faith belief that you are not breaking the law, then you do not have the willful intent necessary to commit a crime. This ruling only applies to areas of the law that are complex, like tax law. However, one could say that CIA interrogation protocol is pretty complicated. If these people thought they were covered by the law, then they did not have the specific intent to commit the crime.

Generally, ignorance of the law is no excuse, but the Court did not want to punish a good faith misunderstanding of complex laws. Some courts point out that tax regulations, for example, are mala prohibitum (regulatory crimes like tax evasion) as opposed to mala in se (crimes that are evil by nature, like murder), so the ruling makes sense in all regulatory situations. In Staples v. United States, Justice Thomas stated that ignorance of the law can be an excuse, but it cannot be if you are dealing with, for example, a hazardous product that obviously would have regulations that you should have checked out. In the torture situation, it would be fairly evident to a CIA operative that interrogation techniques would be well-regulated, but if an operative had access to a letter from a DOJ attorney stating that waterboarding was okay, a non-lawyer could reasonably believe that such a memo was authority enough for what they are doing.

Some would argue that waterboarding is mala in se and that the operatives should have known that it was per se illegal. However, I think that the average CIA field operative probably participates in a lot of activities which would be considered mala in se illegal in my world, so their authority is not so clear cut.

The real problem lies with the lawyers, like Bybee, who drafted the memo. The torture memos show poor work by attorneys who quite obviously avoid any mention of cases which state that techniques like waterboarding are illegal. Bybee and his colleagues were telling the White House what it wanted to hear without regard to what the law actually said. I can certainly understand that one would want to provide the reasoning that helps the White House. However, no lawyer should be disregarding established law to the contrary of what he wants to prove. No one has said Bybee and his colleagues will definitely be prosecuted, but regardless, they should at least be disbarred.