Congress amended the Clean Air Act in 1990. One of the goals of these amendments was to attain National Ambient Air Quality Standards (NAAQS) by reducing vehicle tailpipe emissions. It was determined that one of the best ways to reduce these emissions was to link air quality and transportation planning. The Congestion Mitigation and Air Quality Improvement Program (CMAQ) was implemented to support projects that simultaneously relieved transportation congestion and improved air quality.
CMAQ is a potential source of funding not only for light-rail projects, but also other alternative transportation projects, such as bicycle lanes, pedestrian walking, hiking, or running trails, etc. Often CMAQ funds are one of the only sources that proponents of these pedestrian or bicycle based projects have available to them.
Recently, the Sonoma County Transportation Authority (SCTA) awarded the Sonoma Marin Rail Transit (SMART) $6.6M in CMAQ funds to purchase additional rail cars. While this is consistent with the type of projects usually funded by CMAQ, there has been some minor controversy. The heart of the issue appears to be how quickly the funding request was railroaded through the approval process. Other regional groups (such as the Sonoma County Bicycle Coalition) also dependent upon CMAQ funds for their projects were not given much warning or opportunity to prepare their objections, suggestions, or alternatives.
Proponents of the deal say that the rush was necessary because there were $10M in overall funds that would have been lost if SMART had not acted before the end of the year. The rail cars needed to be ordered, and if they had not acted quickly the window of opportunity would have been pushed back several years.
No one benefits if potential funding is lost because of a failure to act. Overall, light rail projects and other pedestrian or cycling projects work best when developed together. While it is a shame that this had to be pushed through at the last minute, to me it still seems smarter to act than to miss the opportunity entirely. Hopefully both groups will learn from this, and will plan ahead better to develop their mutual interests. With ever-tightening budgets and limited money available, groups like this need to maximize every dollar.
Wednesday, December 26, 2012
Thursday, November 8, 2012
Sandy's Surge Sloshes Superfund Sites
So called "Superstorm Sandy" has made all kinds of news of late. The images of devastation along the Eastern seaboard, particularly in New York and New Jersey captured worldwide attention, and even got President Barack Obama and the (Republican) governor of New Jersey working together for common cause, setting aside politics while they focused on the needs of the people harmed by this storm.
As flood waters recede, the problems are many: people displaced by the storm, homes ruined, other homes inhabitable because of lack of power, possible gas leaks, flood damage, etc. However, one insidious little side-effect has largely escaped the public's notice: raw sewage, and hazardous and toxic chemicals "freed" by the storm.
The eastern seaboard does not lack for Superfund sites, such as the Gowanus Canal in Brooklyn, or Staten Island's North Shore. Just as homes, businesses, and subways were being filled with seawater, so were these sites. As the flood waters receded, they took pollutants with them--although these pollutants were not necessarily washed out to sea. They were deposited wherever the water went--into homes, businesses, etc.
Now, as people look to return home, they have multiple issues facing them--not the least of which is, "when the seawater retreated, what got left behind?" Cleaning out rotted drywall and basements full of sand is bad enough, but what if the debris also contains raw sewage, neurotoxins such as lead and mercury, radioactive materials, or other carcinogens?
Suffice to say that clean up is going to be expensive, hazardous, and very uncertain for these property owners who literally may have no idea what they're returning to. When people discuss the "costs" associated with environmental protection, where are these costs accounted for? Who will have to pay for this bill, especially when the responsible party will be unknown, and the specific harm caused may be outside the property owner's insurance coverage?
As flood waters recede, the problems are many: people displaced by the storm, homes ruined, other homes inhabitable because of lack of power, possible gas leaks, flood damage, etc. However, one insidious little side-effect has largely escaped the public's notice: raw sewage, and hazardous and toxic chemicals "freed" by the storm.
The eastern seaboard does not lack for Superfund sites, such as the Gowanus Canal in Brooklyn, or Staten Island's North Shore. Just as homes, businesses, and subways were being filled with seawater, so were these sites. As the flood waters receded, they took pollutants with them--although these pollutants were not necessarily washed out to sea. They were deposited wherever the water went--into homes, businesses, etc.
Now, as people look to return home, they have multiple issues facing them--not the least of which is, "when the seawater retreated, what got left behind?" Cleaning out rotted drywall and basements full of sand is bad enough, but what if the debris also contains raw sewage, neurotoxins such as lead and mercury, radioactive materials, or other carcinogens?
Suffice to say that clean up is going to be expensive, hazardous, and very uncertain for these property owners who literally may have no idea what they're returning to. When people discuss the "costs" associated with environmental protection, where are these costs accounted for? Who will have to pay for this bill, especially when the responsible party will be unknown, and the specific harm caused may be outside the property owner's insurance coverage?
Wednesday, November 7, 2012
Alabama is Forever Wild--or at Least for Another 20 Years
Election Day 2012. National politics dominated the headlines. There were a lot of things at stake: the Presidency, control of the Senate, perhaps even a shifting in the balance of power in the House. Many people expect that 1 or more Supreme Court Justices will retire in the next term.
However, Alabama also had a little Amendment to the State's Constitution--one that would keep the funding mechanism in place to support the Forever Wild program for another 20 years. Created by constitutional amendment in 1992, Forever Wild is a land trust that purchases land for conservation and public use. Its 20 year charter was expiring. Essentially the people of Alabama could vote to continue funding Forever Wild, or let it drop by the wayside.
Some background. Alabama has the smallest percentage in the Southeast (less than 4%) of public conservation land. Forever Wild owns close to 166,000 acres permanently, or approximately 1/2 of 1% of Alabama's total land area. Forever Wild is active in the hunting, fishing, and boating communities. They act as a liason for reservations at State Parks. They have been instrumental in developing new recreational areas, such as the Coldwater Mountain bike trails, for public use.
Nevertheless, most of the people in Alabama aren't what you probably think of as "tree huggers." The state is reliably "red" in that it consistently votes Republican, and the general sentiment is not one of wanting more government regulation or intrusion into the rights of individuals.
Further, a friend of mine goes to a local Baptist church. Separation of church and state aside, his church issued "voter guides" on how the congregation should vote. (He gave me one of these guides). Stewardship of the Earth apparently did not rank with this group. They were told to vote AGAINST the Forever Wild extension. Similarly, the local Tea Party also opposed the extension.
Now, what's amazing is that in this economic and political climate, at a time when the country is more polarized, more distrustful of government than at any time I can remember, the voters of Alabama voted to KEEP Forever Wild! It wasn't even close. Roughly 75% of the electorate voted for extending Forever Wild's charter for another 20 years.
I'm not sure what to make of this? I'd like to think that somewhere, despite all of the political chattering and accusations (whether true or false), that people still have a connection to natural places. Perhaps this is even moreso in a relatively rural state like Alabama? You can talk about clean coal, or drill baby drill, or the energy technologies of the future, or government regulation, or... At the end of the day, people know that an unspoiled forest or stream has value. Maybe, just maybe, the message is getting through to people that we need to take care of this wonderful planet.
However, Alabama also had a little Amendment to the State's Constitution--one that would keep the funding mechanism in place to support the Forever Wild program for another 20 years. Created by constitutional amendment in 1992, Forever Wild is a land trust that purchases land for conservation and public use. Its 20 year charter was expiring. Essentially the people of Alabama could vote to continue funding Forever Wild, or let it drop by the wayside.
Some background. Alabama has the smallest percentage in the Southeast (less than 4%) of public conservation land. Forever Wild owns close to 166,000 acres permanently, or approximately 1/2 of 1% of Alabama's total land area. Forever Wild is active in the hunting, fishing, and boating communities. They act as a liason for reservations at State Parks. They have been instrumental in developing new recreational areas, such as the Coldwater Mountain bike trails, for public use.
Nevertheless, most of the people in Alabama aren't what you probably think of as "tree huggers." The state is reliably "red" in that it consistently votes Republican, and the general sentiment is not one of wanting more government regulation or intrusion into the rights of individuals.
Further, a friend of mine goes to a local Baptist church. Separation of church and state aside, his church issued "voter guides" on how the congregation should vote. (He gave me one of these guides). Stewardship of the Earth apparently did not rank with this group. They were told to vote AGAINST the Forever Wild extension. Similarly, the local Tea Party also opposed the extension.
Now, what's amazing is that in this economic and political climate, at a time when the country is more polarized, more distrustful of government than at any time I can remember, the voters of Alabama voted to KEEP Forever Wild! It wasn't even close. Roughly 75% of the electorate voted for extending Forever Wild's charter for another 20 years.
I'm not sure what to make of this? I'd like to think that somewhere, despite all of the political chattering and accusations (whether true or false), that people still have a connection to natural places. Perhaps this is even moreso in a relatively rural state like Alabama? You can talk about clean coal, or drill baby drill, or the energy technologies of the future, or government regulation, or... At the end of the day, people know that an unspoiled forest or stream has value. Maybe, just maybe, the message is getting through to people that we need to take care of this wonderful planet.
Monday, October 29, 2012
Climate Change 102: CA Water Issues
California has water issues. As a state, CA currently does not have enough water to meet all of our personal, agricultural, industrial, and recreational needs. We already import water from the Colorado River, and we have already drawn down our existing reservoirs in our underground aquifers to meet these needs. Probably none of this background comes as much of a surprise? Our water woes have been well-documented and publicized for decades, dating back to the days of Mulholland. The question is, what are we doing about it--and what does the future hold?
As I mentioned before, climate change has made predicting the future much more difficult. It used to be that historical models could be counted on to accurately predict what would happen in the future. Water planners have been able to rely on the concept of "stationarity": that you can use historical water flows to plan for future water availability. Sure, there have always been unusual events that happen once every 50 or 100 years, but our weather operated in a known range. This is no longer true. "Once in a lifetime" events now happen every 10 or 20 years. New and previously unforeseen events are occurring. We're in new territory, and although we have no crystal balls, we do have computer modeling. It allows us to make reasonable decisions on what might happen, and what is most likely to happen.
For example, the Department of Water Resources is expecting the water CA gets from the annual Sierra snowmelt to decrease by 25-40% in the next 50 years. Considering that this natural resource is an important source of water for CA in the late spring and summer months, DWR must decide not only how to replace this water supply, but also whether resources can/should be dedicated to capturing and retaining precipitation that may fall as rain (and quickly runs off) rather than slow-melting snow?
Further, what about sea-level rise? Sea levels have already risen over a foot in the last 50 years. They are expected to rise another foot by 2050. However, remember that slow but profound effect I mentioned before in the last post? Sea levels are projected to rise approximately 55 inches between 2050-2100! Imagine what this will do to low-lying areas such as Venice, Florida, New Orleans--and the Sacramento River delta. Literally thousands of acres of productive farmland could be inundated, and our existing levee system is currently not ready for sea-level rise of such magnitude. Further, salt water will encrouch up river many miles further inland, affecting fresh-water availability.
There are a few easy answers. For example, golf courses use (on average) over 300,000 gallons of fresh water a day. (Is the economic and/or recreational value of a golf course worth this cost in water resources?) We currently do very little with water recycling, and many of our reservoirs, pipelines, and other delivery systems are porous, leaky, or otherwise inefficient. We have made progress with low-flow shower heads and more efficient toilets. Much can still be done to improve our water infrastructure.
Unfortunately, although these answers will help, they will not begin to solve our water problems--especially for a state with a huge agricultural industry, and a population that is expected to increase another 10 million people by 2050. The good news, if there is good news, is that DWR is no longer using modeling based on historical averages, or wishful thinking. They're using the modern computer models to base their planning on the best science available, not history or hope. They have a hard task ahead, and unfortunately things may well get worse before they get better on this front. In the meantime--don't flush that toilet!
As I mentioned before, climate change has made predicting the future much more difficult. It used to be that historical models could be counted on to accurately predict what would happen in the future. Water planners have been able to rely on the concept of "stationarity": that you can use historical water flows to plan for future water availability. Sure, there have always been unusual events that happen once every 50 or 100 years, but our weather operated in a known range. This is no longer true. "Once in a lifetime" events now happen every 10 or 20 years. New and previously unforeseen events are occurring. We're in new territory, and although we have no crystal balls, we do have computer modeling. It allows us to make reasonable decisions on what might happen, and what is most likely to happen.
For example, the Department of Water Resources is expecting the water CA gets from the annual Sierra snowmelt to decrease by 25-40% in the next 50 years. Considering that this natural resource is an important source of water for CA in the late spring and summer months, DWR must decide not only how to replace this water supply, but also whether resources can/should be dedicated to capturing and retaining precipitation that may fall as rain (and quickly runs off) rather than slow-melting snow?
Further, what about sea-level rise? Sea levels have already risen over a foot in the last 50 years. They are expected to rise another foot by 2050. However, remember that slow but profound effect I mentioned before in the last post? Sea levels are projected to rise approximately 55 inches between 2050-2100! Imagine what this will do to low-lying areas such as Venice, Florida, New Orleans--and the Sacramento River delta. Literally thousands of acres of productive farmland could be inundated, and our existing levee system is currently not ready for sea-level rise of such magnitude. Further, salt water will encrouch up river many miles further inland, affecting fresh-water availability.
There are a few easy answers. For example, golf courses use (on average) over 300,000 gallons of fresh water a day. (Is the economic and/or recreational value of a golf course worth this cost in water resources?) We currently do very little with water recycling, and many of our reservoirs, pipelines, and other delivery systems are porous, leaky, or otherwise inefficient. We have made progress with low-flow shower heads and more efficient toilets. Much can still be done to improve our water infrastructure.
Unfortunately, although these answers will help, they will not begin to solve our water problems--especially for a state with a huge agricultural industry, and a population that is expected to increase another 10 million people by 2050. The good news, if there is good news, is that DWR is no longer using modeling based on historical averages, or wishful thinking. They're using the modern computer models to base their planning on the best science available, not history or hope. They have a hard task ahead, and unfortunately things may well get worse before they get better on this front. In the meantime--don't flush that toilet!
Climate Change 101
If you are reading this blog, or if you have listened to the news much in the past 20 years, you are probably already aware that there is a weather phenomenon known as Climate Change. Originally often referred to as Global Warming, climate change more accurately reflects the real-world consequence to humans.
As the planet warms, weather patterns become more severe. It may lead to hotter summers and drought. It may also lead to severe winter blizzards. Hurricanes, tornadoes and monsoons have more energy and are more frequent. In fact, the entire weather cycle has more energy overall, and all weather events become more pronounced.
Of course, depending on your source of news and your political leanings, you may not believe any of this is actually happening. Fortunately, most Americans, as with the vast majority of the world, now know something is amiss with our weather. The "controversy" over whether climate change is happening is largely a product of politics and fear-mongering. When 97% of the world's climate scientists agree with the U.S. Department of Defense, any practical debate of whether climate change is actually happening is essentially over. The debate still over WHY it is happening, how much of it is caused by humans and how much is naturally occurring, and what the consequences of this change will be is another story.
For long-term planning purposes including the investment of billions of dollars in infrastructure projects, we'd be crazy not to plan for certain known eventualities. Just as our military is making critical strategic decisions about how climate change will affect our ability to defend ourselves, our State and Federal planning boards must all make key decisions. Whether it is such projects as flood control in our rivers or coastal regions, planning and allocating water supplies, making improvements to our electrical grid, siting wind farms, protecting endangered or threatened species, locating crops, eradicating or minimizing the damage from agricultural pests, enacting fire suppression in our forests, or best determining how much CO2 can be released into the atmosphere, our governmental agencies must do their best to plan for effects that will not occur for twenty, fifty, perhaps even 100 years from now.
Modeling shows that the long-term effects of climate change have three very important components. First, they tend to be slow. Our planet is currently warmed from CO2 in the atmosphere that was released decades ago, and even if we stop burning fossil fuels today, the concentration of CO2 in the atmosphere will continue to rise for many years before the concentrations start to decrease. Second, these effects are profound. Although we cannot easily see them in our daily lives, the changes that have occurred over the last fifty years are dramatic. Whether it is the warming of the Earth as a whole, the dramatic warming of the North and South Pole, the migration of species to higher altitudes or different latitudes, the acidification of our oceans, coral reef bleaching, etc., the warming of our planet is affecting ecosystems world wide.
Perhaps the most important issue is that our computer modeling is imperfect. For example, 20 simulations of rainfall predicitions for California over the next 50 years may yield 1 result where California gets twice the rainfall that it has historically, 2 results where it gets less than half, and 17 results where CA gets 10-25% less. Which model is right? If you work for the Department of Water Resources, how do you plan your infrastructure projects? Does it make sense to plan for the worst-case scenario, or the scenario that is more statistically likely to happen? In this day of limited budgets and resources, can we afford to ignore the problem entirely, or just wish it away? In my next post, I will discuss some of the steps California is currently taking to prepare for its unknown water future.
As the planet warms, weather patterns become more severe. It may lead to hotter summers and drought. It may also lead to severe winter blizzards. Hurricanes, tornadoes and monsoons have more energy and are more frequent. In fact, the entire weather cycle has more energy overall, and all weather events become more pronounced.
Of course, depending on your source of news and your political leanings, you may not believe any of this is actually happening. Fortunately, most Americans, as with the vast majority of the world, now know something is amiss with our weather. The "controversy" over whether climate change is happening is largely a product of politics and fear-mongering. When 97% of the world's climate scientists agree with the U.S. Department of Defense, any practical debate of whether climate change is actually happening is essentially over. The debate still over WHY it is happening, how much of it is caused by humans and how much is naturally occurring, and what the consequences of this change will be is another story.
For long-term planning purposes including the investment of billions of dollars in infrastructure projects, we'd be crazy not to plan for certain known eventualities. Just as our military is making critical strategic decisions about how climate change will affect our ability to defend ourselves, our State and Federal planning boards must all make key decisions. Whether it is such projects as flood control in our rivers or coastal regions, planning and allocating water supplies, making improvements to our electrical grid, siting wind farms, protecting endangered or threatened species, locating crops, eradicating or minimizing the damage from agricultural pests, enacting fire suppression in our forests, or best determining how much CO2 can be released into the atmosphere, our governmental agencies must do their best to plan for effects that will not occur for twenty, fifty, perhaps even 100 years from now.
Modeling shows that the long-term effects of climate change have three very important components. First, they tend to be slow. Our planet is currently warmed from CO2 in the atmosphere that was released decades ago, and even if we stop burning fossil fuels today, the concentration of CO2 in the atmosphere will continue to rise for many years before the concentrations start to decrease. Second, these effects are profound. Although we cannot easily see them in our daily lives, the changes that have occurred over the last fifty years are dramatic. Whether it is the warming of the Earth as a whole, the dramatic warming of the North and South Pole, the migration of species to higher altitudes or different latitudes, the acidification of our oceans, coral reef bleaching, etc., the warming of our planet is affecting ecosystems world wide.
Perhaps the most important issue is that our computer modeling is imperfect. For example, 20 simulations of rainfall predicitions for California over the next 50 years may yield 1 result where California gets twice the rainfall that it has historically, 2 results where it gets less than half, and 17 results where CA gets 10-25% less. Which model is right? If you work for the Department of Water Resources, how do you plan your infrastructure projects? Does it make sense to plan for the worst-case scenario, or the scenario that is more statistically likely to happen? In this day of limited budgets and resources, can we afford to ignore the problem entirely, or just wish it away? In my next post, I will discuss some of the steps California is currently taking to prepare for its unknown water future.
Friday, October 26, 2012
Introduction to Food Law
The 2012 CA Bar Environmental Law Conference in Yosemite is in full swing, and I just had the pleasure of attending a session on food law. This is an up-and-coming area of the law, and you will probably be reading more posts from me on this. However, for now, I'll stick to the basics as many people are unfamiliar with this topic.
The production of the food we consume has changed dramatically over the last 100 years. Where a farmer used to produce enough food for 10 people, today a (U.S.) farmer can feed over 150! As the world's population has grown, these gains have allowed us to keep pace. This is important, as the world's population is expected to top 9 billion people by 2050. Also, these gains have allowed our society to become more urban, and for more people to focus on producing manufactured goods &/or providing services, but this "progress" hasn't been without a price.
First, let's consider the animals. Cows and chickens used to roam free, grazing on grass or hunting insects. Now, they're often raised in extremely close quarters. They may or may not live lives that even remotely resemble their ancestors--anything from what they eat to how they reproduce. Concentrated Animal Feeding Operations (CAFOs) may be rife with disease, leading to the use of antibiotics not only to keep the animals disease free, but also to fatten them up. It is estimated that 80% of all antibiotic use in the U.S. is for livestock, not humans. It is believed that the meat, eggs, and milk from these animals contains less nutrients and more pathogens than if the animals had been raised in a more "pastoral" setting. The disposal of waste from these operations can also be a huge issue, and sewage lagoon spills have wreaked havoc on nearby rivers.
The plants & crops being raised may also be less healthy. They are often grown in close proximity with more pesticides to prevent losses. These pesticides may be toxic, or (as in the case of methyl bromide, an ozone destroying gas), they may have other side effects. Significant amounts of fertilizer are also often used, resulting in the accumulation of nitrates and other chemicals in our rivers and aquifers. The large "dead zone" that occurs annually in the Mississippi River delta region of the Gulf of Mexico is a result of this overuse. Obviously this implicates both Clean Water and Safe Drinking Water issues.
Further, crops are being genetically engineered to make them more drought resistant, pest resistant, and/or to increase yields. While some of this engineering may ultimately prove to be harmless, there are concerns that we may not fully understand the consequences of such tinkering for years to come. Also, because this engineering goes beyond anything occurring naturally, companies have proprietary rights to these crops, and farmers may be subject to intellectual property claims.
I am not suggesting here, today, that any one farm, or any one company, has done something illegal or improper--although we know such things are currently occurring. The point of this post is to just give you an idea of the sorts of issues that farm law touches on. Environmental law and food law are inexorably entwined, especially in a state like California with such a large and diverse agricultural economy.
California has a special, perhaps even unique, opportunity to lead the world in this area of the law, and I am glad the CA Bar included this session in the 2012 Environmental Law Conference. I suspect that with issues such as Proposition 37 on the ballot, we will be hearing much more about this in the coming months and years.
The production of the food we consume has changed dramatically over the last 100 years. Where a farmer used to produce enough food for 10 people, today a (U.S.) farmer can feed over 150! As the world's population has grown, these gains have allowed us to keep pace. This is important, as the world's population is expected to top 9 billion people by 2050. Also, these gains have allowed our society to become more urban, and for more people to focus on producing manufactured goods &/or providing services, but this "progress" hasn't been without a price.
First, let's consider the animals. Cows and chickens used to roam free, grazing on grass or hunting insects. Now, they're often raised in extremely close quarters. They may or may not live lives that even remotely resemble their ancestors--anything from what they eat to how they reproduce. Concentrated Animal Feeding Operations (CAFOs) may be rife with disease, leading to the use of antibiotics not only to keep the animals disease free, but also to fatten them up. It is estimated that 80% of all antibiotic use in the U.S. is for livestock, not humans. It is believed that the meat, eggs, and milk from these animals contains less nutrients and more pathogens than if the animals had been raised in a more "pastoral" setting. The disposal of waste from these operations can also be a huge issue, and sewage lagoon spills have wreaked havoc on nearby rivers.
The plants & crops being raised may also be less healthy. They are often grown in close proximity with more pesticides to prevent losses. These pesticides may be toxic, or (as in the case of methyl bromide, an ozone destroying gas), they may have other side effects. Significant amounts of fertilizer are also often used, resulting in the accumulation of nitrates and other chemicals in our rivers and aquifers. The large "dead zone" that occurs annually in the Mississippi River delta region of the Gulf of Mexico is a result of this overuse. Obviously this implicates both Clean Water and Safe Drinking Water issues.
Further, crops are being genetically engineered to make them more drought resistant, pest resistant, and/or to increase yields. While some of this engineering may ultimately prove to be harmless, there are concerns that we may not fully understand the consequences of such tinkering for years to come. Also, because this engineering goes beyond anything occurring naturally, companies have proprietary rights to these crops, and farmers may be subject to intellectual property claims.
I am not suggesting here, today, that any one farm, or any one company, has done something illegal or improper--although we know such things are currently occurring. The point of this post is to just give you an idea of the sorts of issues that farm law touches on. Environmental law and food law are inexorably entwined, especially in a state like California with such a large and diverse agricultural economy.
California has a special, perhaps even unique, opportunity to lead the world in this area of the law, and I am glad the CA Bar included this session in the 2012 Environmental Law Conference. I suspect that with issues such as Proposition 37 on the ballot, we will be hearing much more about this in the coming months and years.
Wednesday, October 24, 2012
A Job vs Your Passion
A lot of people have asked me, "Why environmental law?" After all, there are many areas of the law where you can do good work. Certainly working to free the wrongfully convicted is very rewarding. I would imagine that helping the victims of domestic abuse is also worthwhile. I am sure that helping people obtain justice in medical malpractice cases, or when someone has been the victim of someone's negligence can make you feel good inside about the work you do.
We've all heard (or told) the various lawyer jokes. We're sharks. The first thing to do is, "kill all the lawyers." (Missing the context of Shakespeare's quote, of course). However, when you say that you are involved in protecting the environment not only for people alive today, but for future generations, often people tend to view you a little differently. That's nice, but is it the reason to choose environmental law as a career path?
In my opinion, no. If you love what you do, you have to love it for yourself--not because other people think it is nice. In fact, I sometimes think that in many ways it may be easier to work in a field that you're NOT passionate about. It is easier to "let go" at the end of the day, and focus on your wife, your kids, or whatever you have in your personal life that you also care about. Many people I know believe that this is the key to retaining your sanity.
Maybe they're right--but I've never wanted my life's work to be dedicated to topics that I am relatively ambivalent about. Now, I don't practice environmental law full-time--far from it! However, my love of the environment started young: surfing, skiing, and especially backpacking on the John Muir trail. This is some amazing scenery: Yosemite Valley & the Ansel Adams Wilderness. I realized that if I wanted to be able to enjoy these places, and if my kids, and their kids were also to enjoy them, then we needed to exhibit more stewardship. Too often our natural resources were liquidated for immediate returns without regard to their value to future generations.
So, when I had the opportunity, I returned to school. I felt that studying the law would be the best way for me to contribute to this world in a positive way. Maybe I would leave things a little better than I had found them--or hopefully at least no worse! Tomorrow the 2012 California Bar Environmental Law Conference starts in Yosemite. It's one of my favorite places on this Earth, and over the next several days I'm hoping to learn a bit more about how I can help.
We've all heard (or told) the various lawyer jokes. We're sharks. The first thing to do is, "kill all the lawyers." (Missing the context of Shakespeare's quote, of course). However, when you say that you are involved in protecting the environment not only for people alive today, but for future generations, often people tend to view you a little differently. That's nice, but is it the reason to choose environmental law as a career path?
In my opinion, no. If you love what you do, you have to love it for yourself--not because other people think it is nice. In fact, I sometimes think that in many ways it may be easier to work in a field that you're NOT passionate about. It is easier to "let go" at the end of the day, and focus on your wife, your kids, or whatever you have in your personal life that you also care about. Many people I know believe that this is the key to retaining your sanity.
Maybe they're right--but I've never wanted my life's work to be dedicated to topics that I am relatively ambivalent about. Now, I don't practice environmental law full-time--far from it! However, my love of the environment started young: surfing, skiing, and especially backpacking on the John Muir trail. This is some amazing scenery: Yosemite Valley & the Ansel Adams Wilderness. I realized that if I wanted to be able to enjoy these places, and if my kids, and their kids were also to enjoy them, then we needed to exhibit more stewardship. Too often our natural resources were liquidated for immediate returns without regard to their value to future generations.
So, when I had the opportunity, I returned to school. I felt that studying the law would be the best way for me to contribute to this world in a positive way. Maybe I would leave things a little better than I had found them--or hopefully at least no worse! Tomorrow the 2012 California Bar Environmental Law Conference starts in Yosemite. It's one of my favorite places on this Earth, and over the next several days I'm hoping to learn a bit more about how I can help.
Tuesday, October 23, 2012
Politics v Justice
Well, election season is on us, and the good folks of Ohio may well be the people to decide for the entire country whether Barack Obama or Mitt Romney is President. I'm not going to dedicate time here tonight to argue whether the Electoral College is still the best plan. Instead, I will spend a few minutes talking about when politics affect legal decisions.
Last month I was deeply involved in a murder trial. If you read some of my posts, you know that it ended in a hung jury, 10-2 in favor of acquittal. As of yet no decision has been made as to whether or not the defendant in this case will be re-tried. He is out on a much smaller bond, but his future is still in limbo. Will he have to defend himself again? Should he even have to?
This case has always been political in nature. The victim was the Superintendent of schools in a smallish town, that had seen its share of racial division and corruption. He was an outsider that had been brought in to "clean up" the town, and also implement Brown vs Board of Education, which was long overdue. He had his run-ins with the School Board, and they wanted him gone. He ended up dead less than 24 hrs before a controversial meeting was to take place,
The defendant, a 17 year old high school student at the time, had no connection to the victim, the Board, or even the community. His family had recently relocated there. Neither he, nor his parents, were part of these controversies. Yet, due to some circumstantial evidence that placed him near the scene of the crime at approximately the same time as the murder, he became a person of interest. He was investigated, and dropped as a suspect, twenty years ago.
The problem is that now there is a D.A. that is aggressively trying to clean up cold-cases. The defendant was asked to give a DNA sample, which he did. The State got an arrest warrant on the strength of a "DNA match." This so-called match not only proved later to not be a match, it tended to show that the defendant could NOT have been the killer.
Nevertheless, the D.A. pursued this case with a fervor. She fought to make sure the defendant's bail was unattainable ($1M), and insisted in taking this matter to trial even when the lab that suggested there could be a match came back with a report saying there was not one.
Why would someone do this? Well, it may just be a coincidence, but the D.A.'s name has made a lot of headlines with her high-profile prosecution of this and other cases. Oh, and she is up for re-election in a couple weeks.
Since the hung-jury, she has kept silent about the case, and has let the Assistant D.A. who was the lead here take all the criticism. As for whether or not the Defendant would be re-tried? No word. No one is expecting anything until after the election. If her challenger wins, everyone expects the case will be dropped. If she wins, she may re-try it? Who knows?
The sad thing is that the victim's family is no closer to justice than they were twenty years ago. The defendant--a real person, with a wife, with hopes for a family, with hopes for regaining his life--sits and waits. This is not justice, and justice should never have to be put on hold due to someone's political aspirations.
Last month I was deeply involved in a murder trial. If you read some of my posts, you know that it ended in a hung jury, 10-2 in favor of acquittal. As of yet no decision has been made as to whether or not the defendant in this case will be re-tried. He is out on a much smaller bond, but his future is still in limbo. Will he have to defend himself again? Should he even have to?
This case has always been political in nature. The victim was the Superintendent of schools in a smallish town, that had seen its share of racial division and corruption. He was an outsider that had been brought in to "clean up" the town, and also implement Brown vs Board of Education, which was long overdue. He had his run-ins with the School Board, and they wanted him gone. He ended up dead less than 24 hrs before a controversial meeting was to take place,
The defendant, a 17 year old high school student at the time, had no connection to the victim, the Board, or even the community. His family had recently relocated there. Neither he, nor his parents, were part of these controversies. Yet, due to some circumstantial evidence that placed him near the scene of the crime at approximately the same time as the murder, he became a person of interest. He was investigated, and dropped as a suspect, twenty years ago.
The problem is that now there is a D.A. that is aggressively trying to clean up cold-cases. The defendant was asked to give a DNA sample, which he did. The State got an arrest warrant on the strength of a "DNA match." This so-called match not only proved later to not be a match, it tended to show that the defendant could NOT have been the killer.
Nevertheless, the D.A. pursued this case with a fervor. She fought to make sure the defendant's bail was unattainable ($1M), and insisted in taking this matter to trial even when the lab that suggested there could be a match came back with a report saying there was not one.
Why would someone do this? Well, it may just be a coincidence, but the D.A.'s name has made a lot of headlines with her high-profile prosecution of this and other cases. Oh, and she is up for re-election in a couple weeks.
Since the hung-jury, she has kept silent about the case, and has let the Assistant D.A. who was the lead here take all the criticism. As for whether or not the Defendant would be re-tried? No word. No one is expecting anything until after the election. If her challenger wins, everyone expects the case will be dropped. If she wins, she may re-try it? Who knows?
The sad thing is that the victim's family is no closer to justice than they were twenty years ago. The defendant--a real person, with a wife, with hopes for a family, with hopes for regaining his life--sits and waits. This is not justice, and justice should never have to be put on hold due to someone's political aspirations.
Thursday, October 18, 2012
Of Bosques and Men
Today I am blogging not about the law per se, although I will touch on to that, or even about anything I am involved in directly. Today I am writing because I am proud of something my Dad did this week. Dad lives in Albuquerque now, and in his retirement he's gotten (even more) involved in local community issues.
According to their own website, it seems that Walmart has a dozen or so stores in and around Albuquerque. There is nothing inherently wrong with this. They are a retail chain, and they have as much right as anyone to build a store and see if they can make a profit selling their wares.
Bosque is the name given to areas of forest found along rivers, streams, and riparian flood plains in the Southwest. The Paseo del Bosque is Albuquerque's premier multi-use trail system. Dad got involved when Walmart sought to build a store on private land that is not only adjacent to this recreation area, but also to a local prep school also known as the Bosque school. This land lacked adequate access to major streets that could handle both the truck and car traffic expected from a "big box" store. As it turns out, Walmart's bid to develop here was denied primarily because of the access issue. In my opinion, all of these issues are good reason to deny the permit in a location such as this.
Understand, I recognize that we need jobs. We all need retail locations where we can buy our toothpaste, anti-freeze, &/or sunglasses. I just don't buy the argument that one always implicates the other. Here, there are Walmarts within a couple miles in either direction from this site, and there are other retailers available as well. People will continue to shop--either here, or at the other retailers that service this neighborhood. People shall not want for inexpensive goods simply because there isn't another Walmart here. If the Walmart is built, probably other stores will close. It is not as if people will now buy more goods because of the Walmart, they'll simply buy them from someone else.
However, this habitat adjacent to the Rio Grande is rare. Special. Locating a store here would degrade what little of it remains--and this loss cannot be easily mitigated. Further, many the kids being educated nearby also spoke against locating a big box store (of any type) so close to their school.
I applaud the Albuquerque City Council for rejecting this proposal. Perhaps the city or a non-profit organization needs to step in and acquire this land so that the private land owner does not suffer financially from this decision. This is only fair. Depending upon what the City ultimately does, or does not, ultimately let them do with their land could lead to a takings issue later on. If the people of Albuquerque do value the unique nature of this land, they should take steps to preserve it in perpetuity for future generations to enjoy,
There's plenty of room for the Home Depot's, Macy's, and Wal Mart's of the world. Let's be sure not to lose sight of the forest--and especially the forest itself--in the meantime. Dad, I'm proud of you for lending your voice to this cause!
According to their own website, it seems that Walmart has a dozen or so stores in and around Albuquerque. There is nothing inherently wrong with this. They are a retail chain, and they have as much right as anyone to build a store and see if they can make a profit selling their wares.
Bosque is the name given to areas of forest found along rivers, streams, and riparian flood plains in the Southwest. The Paseo del Bosque is Albuquerque's premier multi-use trail system. Dad got involved when Walmart sought to build a store on private land that is not only adjacent to this recreation area, but also to a local prep school also known as the Bosque school. This land lacked adequate access to major streets that could handle both the truck and car traffic expected from a "big box" store. As it turns out, Walmart's bid to develop here was denied primarily because of the access issue. In my opinion, all of these issues are good reason to deny the permit in a location such as this.
Understand, I recognize that we need jobs. We all need retail locations where we can buy our toothpaste, anti-freeze, &/or sunglasses. I just don't buy the argument that one always implicates the other. Here, there are Walmarts within a couple miles in either direction from this site, and there are other retailers available as well. People will continue to shop--either here, or at the other retailers that service this neighborhood. People shall not want for inexpensive goods simply because there isn't another Walmart here. If the Walmart is built, probably other stores will close. It is not as if people will now buy more goods because of the Walmart, they'll simply buy them from someone else.
However, this habitat adjacent to the Rio Grande is rare. Special. Locating a store here would degrade what little of it remains--and this loss cannot be easily mitigated. Further, many the kids being educated nearby also spoke against locating a big box store (of any type) so close to their school.
I applaud the Albuquerque City Council for rejecting this proposal. Perhaps the city or a non-profit organization needs to step in and acquire this land so that the private land owner does not suffer financially from this decision. This is only fair. Depending upon what the City ultimately does, or does not, ultimately let them do with their land could lead to a takings issue later on. If the people of Albuquerque do value the unique nature of this land, they should take steps to preserve it in perpetuity for future generations to enjoy,
There's plenty of room for the Home Depot's, Macy's, and Wal Mart's of the world. Let's be sure not to lose sight of the forest--and especially the forest itself--in the meantime. Dad, I'm proud of you for lending your voice to this cause!
Sunday, October 14, 2012
Changing Public Perceptions of Climate Change
A new study from the Yale Project on Climate Change Communication and George Mason University was just released last week. It appears that "a large and growing number of Americans" believe that global warming is affecting weather in the United States. This number is up 5% since March of 2012--from 69% to 74%.
Further, Americans were more likely to connect global warming to record high temperatures this summer, Americans said that climate change had made events such as the severe drought that struck the Midwest this summer worse, and Americans increasingly say that weather in the U.S. has been getting worse over the past several years.
I believe that too often laws and regulations are the result of politics, not sound science. Nevertheless, the public's willingness to accept or reject new environmental controls and standards strongly affects what laws/regulations may ultimately come to pass. Traditionally the American public has trailed other developed countries in accepting climate change as a real phenomenon. If public perception is indeed changing, we may be on the cusp of policy changes as well.
The report itself is far too long for this little blog. However, if you are interested in reading more:Click Here
Further, Americans were more likely to connect global warming to record high temperatures this summer, Americans said that climate change had made events such as the severe drought that struck the Midwest this summer worse, and Americans increasingly say that weather in the U.S. has been getting worse over the past several years.
I believe that too often laws and regulations are the result of politics, not sound science. Nevertheless, the public's willingness to accept or reject new environmental controls and standards strongly affects what laws/regulations may ultimately come to pass. Traditionally the American public has trailed other developed countries in accepting climate change as a real phenomenon. If public perception is indeed changing, we may be on the cusp of policy changes as well.
The report itself is far too long for this little blog. However, if you are interested in reading more:Click Here
Saturday, October 13, 2012
Supreme Court also Checks in on Clean Water
As I mentioned several days ago (October 8), environmental law is a favorite topic of mine, and the U.S. Supreme Court doesn't take that many environmental law cases. Well, a friend and colleague reminded me that the Supreme Court is taking a look at another important environmental law issue this term in the clean water realm.
On December 4, 2012, oral argument will be held in the matter of Los Angeles County Flood Control District v. Natural Resources Defense Counsel, et al. This case involves polluted waters in Los Angeles County. Here the Court will decide whether the County Flood Control District is liable for Clean Water Act permit violations, for the simple reason that someone else's pollutants passed through its flood control channel.
In Southern California, we don't see a lot of rain. Pollutants accumulate on the roadways in all of the cities, on the parking lots of businesses, churches and schools, and on the driveways and rooftops of homeowners. When the occasional deluge comes, these pollutants wash into storm drains, and eventually make their way into the storm sewer system, which the Flood Control District operates throughout the County. These waters flow through the sewer system into the L.A. River and San Gabriel River, among others, and eventually wash into the Pacific Ocean.
Several years of testing within the Flood Control District's sewer system reveals high levels of pollutants (above permitted levels), and the Natural Resources Defense Counsel has taken legal action. Now, the Flood Control District, which did not generate these pollutants, faces sole liability for them because the pollutants passed through its sewer. It goes without saying that this ruling could have massive implications for cities, counties and flood control districts nationwide, which are invariably responsible for providing flood control and storm sewer systems within their jurisdictions.
A negative ruling against the Flood Control District could be a big win for clean water everywhere, as it will likely assure that sewer operators treat everyone's pollutants before final discharge. However, it could be a huge hit for sewer operators (who generally didn't generate the pollutants), and eventually for cities and their taxpayers that use storm drains upstream, as they will likely have to subsidize these new treatments and liabilities.
Suffice to say that this is a classic situation where the polluters have effectively externalized their costs on the public at large. While few would dispute the need to actually clean up the pollutants, this is another situation where government and the people are being asked to collectively carry the load when the identity of specific polluters is often unknown, and there may be no good way to effectively target appropriate clean-up measures at the source.
On December 4, 2012, oral argument will be held in the matter of Los Angeles County Flood Control District v. Natural Resources Defense Counsel, et al. This case involves polluted waters in Los Angeles County. Here the Court will decide whether the County Flood Control District is liable for Clean Water Act permit violations, for the simple reason that someone else's pollutants passed through its flood control channel.
In Southern California, we don't see a lot of rain. Pollutants accumulate on the roadways in all of the cities, on the parking lots of businesses, churches and schools, and on the driveways and rooftops of homeowners. When the occasional deluge comes, these pollutants wash into storm drains, and eventually make their way into the storm sewer system, which the Flood Control District operates throughout the County. These waters flow through the sewer system into the L.A. River and San Gabriel River, among others, and eventually wash into the Pacific Ocean.
Several years of testing within the Flood Control District's sewer system reveals high levels of pollutants (above permitted levels), and the Natural Resources Defense Counsel has taken legal action. Now, the Flood Control District, which did not generate these pollutants, faces sole liability for them because the pollutants passed through its sewer. It goes without saying that this ruling could have massive implications for cities, counties and flood control districts nationwide, which are invariably responsible for providing flood control and storm sewer systems within their jurisdictions.
A negative ruling against the Flood Control District could be a big win for clean water everywhere, as it will likely assure that sewer operators treat everyone's pollutants before final discharge. However, it could be a huge hit for sewer operators (who generally didn't generate the pollutants), and eventually for cities and their taxpayers that use storm drains upstream, as they will likely have to subsidize these new treatments and liabilities.
Suffice to say that this is a classic situation where the polluters have effectively externalized their costs on the public at large. While few would dispute the need to actually clean up the pollutants, this is another situation where government and the people are being asked to collectively carry the load when the identity of specific polluters is often unknown, and there may be no good way to effectively target appropriate clean-up measures at the source.
Monday, October 8, 2012
Supreme Court Grants Cert on Exactions
Hi Everyone--
I know I've been writing about all things criminal here, but now I am getting back to my first love: environmental law. I don't always have the luxury of following cases purely because they interest me, but at least now there's a headline grabber in the environmental law field.
Most of you are probably familiar with the general idea of a governmental "taking." The idea is that if the government deprives you of your property directly, you are entitled to compensation. Well, the same is also true in situations where the government does not take your property from you, but denies that you can use your property in a certain way. In such circumstances, you may be entitled to compensation as well.
So, what if you own land that is protected by state or federal law, because of the presence of an endangered specie, or because it is critical habitat for a wetland, etc? Perhaps you would like to develop this land, but the state or federal government has told you either that you can't, or that you have to meet certain criteria before you can act? This is the realm of takings, mitigation, and exactions.
An exaction is essentially a condition that is placed on the property, requiring the property owner to mitigate the expected harm caused by the development of their property. In two landmark cases (Nollan & Dolan), the U.S. Supreme Court has ruled that their had to be a logical connection between the restriction on the land, and the environmental harm the agency is seeking to avoid--this is the "essential nexus" test. Also, there must be a "rough proportionality" between the development's public benefit, and the burden being imposed. These criteria have been the basis for many takings cases in environmental law.
However, real property is unique, so any environmental impact, and each proposed restriction necessarily varies. This area of the law is not entirely settled, and new cases present new legal challenges. This past Friday, October 5, the Court agreed to hear the Koontz v St. John's River Water Management District case. The Supreme Court does not agree to hear many takings cases, so this is something somewhat special in environmental law. Here, the Court will decide two important issues: 1) whether or not an exaction occurs when the governmental agency has proposed the exaction; and 2) whether the Court's Nollan/Dolan test applies in cases beyond those that involve the public occupation of private lands.
I have not yet seen a date for when this case will be presented to the Court. However, it is likely that this will be a "hot topic" in environmental law circles. Perhaps this won't be met with quite the same excitement and press coverage as Health Care reform, but some of us will be watching to see what the Robert's Court decides.
I know I've been writing about all things criminal here, but now I am getting back to my first love: environmental law. I don't always have the luxury of following cases purely because they interest me, but at least now there's a headline grabber in the environmental law field.
Most of you are probably familiar with the general idea of a governmental "taking." The idea is that if the government deprives you of your property directly, you are entitled to compensation. Well, the same is also true in situations where the government does not take your property from you, but denies that you can use your property in a certain way. In such circumstances, you may be entitled to compensation as well.
So, what if you own land that is protected by state or federal law, because of the presence of an endangered specie, or because it is critical habitat for a wetland, etc? Perhaps you would like to develop this land, but the state or federal government has told you either that you can't, or that you have to meet certain criteria before you can act? This is the realm of takings, mitigation, and exactions.
An exaction is essentially a condition that is placed on the property, requiring the property owner to mitigate the expected harm caused by the development of their property. In two landmark cases (Nollan & Dolan), the U.S. Supreme Court has ruled that their had to be a logical connection between the restriction on the land, and the environmental harm the agency is seeking to avoid--this is the "essential nexus" test. Also, there must be a "rough proportionality" between the development's public benefit, and the burden being imposed. These criteria have been the basis for many takings cases in environmental law.
However, real property is unique, so any environmental impact, and each proposed restriction necessarily varies. This area of the law is not entirely settled, and new cases present new legal challenges. This past Friday, October 5, the Court agreed to hear the Koontz v St. John's River Water Management District case. The Supreme Court does not agree to hear many takings cases, so this is something somewhat special in environmental law. Here, the Court will decide two important issues: 1) whether or not an exaction occurs when the governmental agency has proposed the exaction; and 2) whether the Court's Nollan/Dolan test applies in cases beyond those that involve the public occupation of private lands.
I have not yet seen a date for when this case will be presented to the Court. However, it is likely that this will be a "hot topic" in environmental law circles. Perhaps this won't be met with quite the same excitement and press coverage as Health Care reform, but some of us will be watching to see what the Robert's Court decides.
Tuesday, September 25, 2012
Sometimes It Takes More Than Money to Make Bail
Many people are familiar with the basic idea of making bail. You can put the entire amount up yourself or you can put approximately 10% down and a bail bondsman will cover the other 90%. The upside of putting the money down yourself is that except for some fees, you'll get most of it back. When you pay a bail bondsman they keep that 10% as their fee. Note these fees may vary somewhat based on your jurisdiction.
What many people don't realize is that the governmental body (police, sheriff) holding the prisoner may have their own set of rules regarding that prisoner's release. In a recent case that I was involved in, the judge had required a $30,000 bond. After the fees were paid to the bail bondsman, we expected the prisoner would be let go. However, that did not happen. The sheriff in this case made additional demands. Specifically they required that they people putting up the bond also provide deeds to their homes, as well as proof of equity. Further, the sheriff did not declare this requirement until after the money had been put up and when it was too late in the day to go get the required documentation.
It was after 5:00. The judge in this case had gone home, and many other governmental offices and banks had closed. Fortunately, the media had not gone home for the day. Through phone calls from both local and national media, suddenly brought a change of tune from this particular sheriff.
The moral of the story is: don't assume this will be an easy process. Make sure you find out in advance exactly what will be required, especially in high profile cases. There may be people with their own agendas.
What many people don't realize is that the governmental body (police, sheriff) holding the prisoner may have their own set of rules regarding that prisoner's release. In a recent case that I was involved in, the judge had required a $30,000 bond. After the fees were paid to the bail bondsman, we expected the prisoner would be let go. However, that did not happen. The sheriff in this case made additional demands. Specifically they required that they people putting up the bond also provide deeds to their homes, as well as proof of equity. Further, the sheriff did not declare this requirement until after the money had been put up and when it was too late in the day to go get the required documentation.
It was after 5:00. The judge in this case had gone home, and many other governmental offices and banks had closed. Fortunately, the media had not gone home for the day. Through phone calls from both local and national media, suddenly brought a change of tune from this particular sheriff.
The moral of the story is: don't assume this will be an easy process. Make sure you find out in advance exactly what will be required, especially in high profile cases. There may be people with their own agendas.
Wednesday, September 19, 2012
Deadlocked
So the case is over, all of the testimony has been given. The evidence has been submitted, closing arguments are over, and the case has gone to the jury. They may deliberate for an hour, a day, even a week, but at least you will have resolution right? As Lee Corso might say, "Not so fast!"
There is always the possibility of a deadlocked jury. This is fairly uncommon, but what does it really mean in a real-world sense? There is certainly no definitive result: no conviction, no acquittal. In civil trials it is not uncommon to have less than unanimity, but with criminal trials most jurisdictions require 12-0 either to acquit or convict. Of course, even that isn't true, and there is a significant line of cases that suggests that under the right circumstances, a less than unanimous verdict can still achieve either conviction or acquittal. I won't go into all of those details now.
What is interesting is what happens when there is a deadlocked jury. Some jurisdictions allow an "Allen" charge to try and break up the deadlock. This is an admonishment from the judge for the jury to really, really try and achieve a result. The idea is that the parties have presented their best case, there is no reason to believe that retrying this case will result in anything substantially different, and there is no reason to believe that a new jury wouldn't have the same issues as they (the jury) are having. "Punting" the issue of guilt or innocence to 12 new people is an abdication of their duty.
The case I have been working on just resulted in a mistrial. The jury voted 10-2 in favor of acquittal. While this was somewhat gratifying in the sense that most of the jurors voted our way, it wasn't a complete victory. Now, the defendant faces the possibility of a retrial. We may have to do this all over again. He still is not "free," and won't be until the State drops the charges entirely. In fact, he is not even free in the literal sense. The bond reduction hearing is today. So, a man who has been in jail for 2.5 years awaiting his day in court now waits another day, because 10-2 is NOT 12-0. As defense counsel said, "it was a dry run." Nothing more.
And that is a mistrial...
There is always the possibility of a deadlocked jury. This is fairly uncommon, but what does it really mean in a real-world sense? There is certainly no definitive result: no conviction, no acquittal. In civil trials it is not uncommon to have less than unanimity, but with criminal trials most jurisdictions require 12-0 either to acquit or convict. Of course, even that isn't true, and there is a significant line of cases that suggests that under the right circumstances, a less than unanimous verdict can still achieve either conviction or acquittal. I won't go into all of those details now.
What is interesting is what happens when there is a deadlocked jury. Some jurisdictions allow an "Allen" charge to try and break up the deadlock. This is an admonishment from the judge for the jury to really, really try and achieve a result. The idea is that the parties have presented their best case, there is no reason to believe that retrying this case will result in anything substantially different, and there is no reason to believe that a new jury wouldn't have the same issues as they (the jury) are having. "Punting" the issue of guilt or innocence to 12 new people is an abdication of their duty.
The case I have been working on just resulted in a mistrial. The jury voted 10-2 in favor of acquittal. While this was somewhat gratifying in the sense that most of the jurors voted our way, it wasn't a complete victory. Now, the defendant faces the possibility of a retrial. We may have to do this all over again. He still is not "free," and won't be until the State drops the charges entirely. In fact, he is not even free in the literal sense. The bond reduction hearing is today. So, a man who has been in jail for 2.5 years awaiting his day in court now waits another day, because 10-2 is NOT 12-0. As defense counsel said, "it was a dry run." Nothing more.
And that is a mistrial...
Closing Arguments in Disorder
We all watch the movies, television. We have all seen the dramatic scenes where the "good" lawyer moves the other characters, or even you, to tears, rage, or joy because of their well-selected phrases, and their ability to build a logical argument that is so persuasive that it is impossible to deny.
However, have you ever thought about what order these arguments are made in? I mean, everyone knows the prosecution goes first, the defense next, and then the prosecution closes. Why is that?
Well, it hasn't always been that way, and as I discovered recently, it still isn't necessarily a given that it always will play out that way. The case law has many examples of prosecutors or defense lawyers trying to game the system to get in the last word, unrebutted.
Here's how things are supposed to work now. (Refer to Federal Rule of Criminal Procedure 29.1). The prosecution opens. They say their piece, state their case in chief. This is their version of what happened. Then, the defense goes. They get to tell their version of the story, and this is the defense's opportunity to rebut the arguments made by the State. Then, the prosecution goes again--but this time only in rebuttal of the defense's case in chief. This is not the time for them to add new evidence, make new theories, etc.
This makes sense. Necessarily someone has to go first. Whichever party that is HAS to get another chance, or else they'll have no chance at rebuttal. So, if the state goes first, then they also get to go 3rd (last). It is important to limit this second argument to only rebuttal however, or else the prosecution would get a chance to say things that the defense could not counter.
Why do I bring this up? Well, this just happened in court last week. In a case I am involved in, the prosecution essentially sand-bagged. They made a very limited opening statement, and saved all of their meat & potatoes for their second argument. They were effective. They targeted the defense's arguments where they were weak, and then presented a whole new line of logic for HOW they think the case happened--a story that had not been told before that moment.
Sadly, the defense attorney did not object. Suggestions that the defense should move the court for surrebuttal went unheeded. The jury is still out, so it remains to be seen whether this issue is moot, or whether the defendant may have been prejudiced by the state's strategy.
In any case, the moral of this little story is: pay attention. Closing arguments may not be evidence, but they can still make a huge difference in the outcome of the case. Be aware that the other side may NOT be looking to play be the rules, and be prepared to object if they cross the line...
However, have you ever thought about what order these arguments are made in? I mean, everyone knows the prosecution goes first, the defense next, and then the prosecution closes. Why is that?
Well, it hasn't always been that way, and as I discovered recently, it still isn't necessarily a given that it always will play out that way. The case law has many examples of prosecutors or defense lawyers trying to game the system to get in the last word, unrebutted.
Here's how things are supposed to work now. (Refer to Federal Rule of Criminal Procedure 29.1). The prosecution opens. They say their piece, state their case in chief. This is their version of what happened. Then, the defense goes. They get to tell their version of the story, and this is the defense's opportunity to rebut the arguments made by the State. Then, the prosecution goes again--but this time only in rebuttal of the defense's case in chief. This is not the time for them to add new evidence, make new theories, etc.
This makes sense. Necessarily someone has to go first. Whichever party that is HAS to get another chance, or else they'll have no chance at rebuttal. So, if the state goes first, then they also get to go 3rd (last). It is important to limit this second argument to only rebuttal however, or else the prosecution would get a chance to say things that the defense could not counter.
Why do I bring this up? Well, this just happened in court last week. In a case I am involved in, the prosecution essentially sand-bagged. They made a very limited opening statement, and saved all of their meat & potatoes for their second argument. They were effective. They targeted the defense's arguments where they were weak, and then presented a whole new line of logic for HOW they think the case happened--a story that had not been told before that moment.
Sadly, the defense attorney did not object. Suggestions that the defense should move the court for surrebuttal went unheeded. The jury is still out, so it remains to be seen whether this issue is moot, or whether the defendant may have been prejudiced by the state's strategy.
In any case, the moral of this little story is: pay attention. Closing arguments may not be evidence, but they can still make a huge difference in the outcome of the case. Be aware that the other side may NOT be looking to play be the rules, and be prepared to object if they cross the line...
Monday, September 17, 2012
To Testify or Not to Testify?
That is the question! Of course no one ever has to testify in a court proceeding where they're the defendant, but there are different reasons and strategies as to why someone may, or may not choose to testify on their own behalf.
First, let's start with the obvious: the jury wants to hear your story. You have been accused of something--what do you have to say about that? Are you believable? Do you seem as if you are lying, or do you seem as if you're a straight-up person with nothing to hide?
The problem of course is that lawyers are tricky. We're trained in how to argue. Many people think they're good speakers, and maybe under normal circumstances they are, but here you have an adversary that is trying to make you look bad, trip you up, find inconsistencies in your words. You're nervous, and maybe you end up looking bad. You could easily hurt your case. This is all the more true if you are not a practiced public speaker, or if you don't have a good educational background.
You also have the issue of whether or not the state has presented a strong case or not. If the state hasn't, you can easily decide that there is no need for you to take the stand. If the prosecution has failed to put on a case worthy of a conviction, why give them a second chance at making you look bad? Anytime the defendant takes the stand there are new issues surrounding what might be admissible, what witnesses could be called to rebut the defendant's testimony, etc.
From a trial strategy perspective, this could be a very difficult decision to make--yet it could be crucial to the outcome. In the trial I am involved with now, the lead defense attorney made the decision for the Defendant to NOT take the stand. Was this the right decision? If the jury comes back with an acquittal, then of course there was no harm in him not saying anything. However, if he is convicted, he will always have to live with the knowledge that he could have said something on his behalf, but didn't.
My own position is that if it was me, I would take the stand. Of course, I am a lawyer, and I am comfortable with speaking in my own defense--or for someone else. I totally understand why other people may not have the same view. At the end of the day, each case has its own unique facts, its own defendant, and there is no easy "right or wrong" answer as to whether or not someone should testify.
First, let's start with the obvious: the jury wants to hear your story. You have been accused of something--what do you have to say about that? Are you believable? Do you seem as if you are lying, or do you seem as if you're a straight-up person with nothing to hide?
The problem of course is that lawyers are tricky. We're trained in how to argue. Many people think they're good speakers, and maybe under normal circumstances they are, but here you have an adversary that is trying to make you look bad, trip you up, find inconsistencies in your words. You're nervous, and maybe you end up looking bad. You could easily hurt your case. This is all the more true if you are not a practiced public speaker, or if you don't have a good educational background.
You also have the issue of whether or not the state has presented a strong case or not. If the state hasn't, you can easily decide that there is no need for you to take the stand. If the prosecution has failed to put on a case worthy of a conviction, why give them a second chance at making you look bad? Anytime the defendant takes the stand there are new issues surrounding what might be admissible, what witnesses could be called to rebut the defendant's testimony, etc.
From a trial strategy perspective, this could be a very difficult decision to make--yet it could be crucial to the outcome. In the trial I am involved with now, the lead defense attorney made the decision for the Defendant to NOT take the stand. Was this the right decision? If the jury comes back with an acquittal, then of course there was no harm in him not saying anything. However, if he is convicted, he will always have to live with the knowledge that he could have said something on his behalf, but didn't.
My own position is that if it was me, I would take the stand. Of course, I am a lawyer, and I am comfortable with speaking in my own defense--or for someone else. I totally understand why other people may not have the same view. At the end of the day, each case has its own unique facts, its own defendant, and there is no easy "right or wrong" answer as to whether or not someone should testify.
Wednesday, September 12, 2012
All About Alleles
Day Two in my new life as a blogger. I have been involved in a criminal case for the past two and a half years. It is a cold-case murder, and I have been volunteering my legal services to the accused. I am not the primary defense attorney in this case. The case is being tried in Georgia, and I am not licensed there. (Remember My Cousin Vinny?) However, I have been donating time and mental energy to the research and strategy involved.
As it turns out, I have been able to provide a fair bit of help on the dna evidence the prosecution has introduced. I always loved math and science in my earlier academic years, and I still do today. So, I did quite a bit of work analyzing and discussing the data with our forensic expert.
We are still in the prosecution's case-in-chief, so I certainly have to be careful about saying too much about the strategy we are using, and/or what I cannot say. However, I can say at this point that there is a lot about dna evidence that most people probably never realized. When you think of a dna match, you tend to think about that 1 in a billion, 1 in a trillion sort of odds that essentially means that statistically there is no way anyone on Earth committed this crime except for you, your identical twin, or your clone that was sent back to the present from the future.
Actually, that is inaccurate. I will try and put this in simple terms, as I am no expert myself, and I want to be careful not to stray beyond what I think I know. Human beings share a great deal of their genetic code with each other--over 99%. However, there are a number of different sites (loci) on the dna molecule where you can find the differences that make us unique. Much like a fingerprint, we all have these sites, but they may have different values represented there. These values are the "alleles" that are the traits represented at that site. (Eg: hair color, skin color, etc). However, a similarity or a match at one site is hardly conclusive, as we share so many of the same alleles. Imagine, there are many people with black hair, but that does not mean they all also have the same eye color, or skin color.
So, if my dna matches evidence at one particular loci, it does not mean I will match at other loci. The more matches I have with that evidence, the higher the statistical probability that my dna actually matches the evidence in question. Now, two important things about that: 1) just because I can be a contributor of that allele does not mean I AM the contributor of that allele--this is particularly important in mixed samples; and 2) it is possible to exclude a person as a contributor to a sample if they do not share the same alleles.
Of course, there is a lot in between, which is why someone might be considered a probable match, a likely match, a possible match, or not a match at all. Knowing how many of the sites match is very important in knowing how strong of a case you do (or don't) have if it is predicated partially or wholly on this dna evidence. So when handling a case like this, get a good expert. Make sure you truly understand what they're telling you, so you properly can handle the direct or cross examination. It is likely many/most of the jury won't know this any better than you do, and you need to be able to get them to understand your point. This can really make or break a case!
Jay
As it turns out, I have been able to provide a fair bit of help on the dna evidence the prosecution has introduced. I always loved math and science in my earlier academic years, and I still do today. So, I did quite a bit of work analyzing and discussing the data with our forensic expert.
We are still in the prosecution's case-in-chief, so I certainly have to be careful about saying too much about the strategy we are using, and/or what I cannot say. However, I can say at this point that there is a lot about dna evidence that most people probably never realized. When you think of a dna match, you tend to think about that 1 in a billion, 1 in a trillion sort of odds that essentially means that statistically there is no way anyone on Earth committed this crime except for you, your identical twin, or your clone that was sent back to the present from the future.
Actually, that is inaccurate. I will try and put this in simple terms, as I am no expert myself, and I want to be careful not to stray beyond what I think I know. Human beings share a great deal of their genetic code with each other--over 99%. However, there are a number of different sites (loci) on the dna molecule where you can find the differences that make us unique. Much like a fingerprint, we all have these sites, but they may have different values represented there. These values are the "alleles" that are the traits represented at that site. (Eg: hair color, skin color, etc). However, a similarity or a match at one site is hardly conclusive, as we share so many of the same alleles. Imagine, there are many people with black hair, but that does not mean they all also have the same eye color, or skin color.
So, if my dna matches evidence at one particular loci, it does not mean I will match at other loci. The more matches I have with that evidence, the higher the statistical probability that my dna actually matches the evidence in question. Now, two important things about that: 1) just because I can be a contributor of that allele does not mean I AM the contributor of that allele--this is particularly important in mixed samples; and 2) it is possible to exclude a person as a contributor to a sample if they do not share the same alleles.
Of course, there is a lot in between, which is why someone might be considered a probable match, a likely match, a possible match, or not a match at all. Knowing how many of the sites match is very important in knowing how strong of a case you do (or don't) have if it is predicated partially or wholly on this dna evidence. So when handling a case like this, get a good expert. Make sure you truly understand what they're telling you, so you properly can handle the direct or cross examination. It is likely many/most of the jury won't know this any better than you do, and you need to be able to get them to understand your point. This can really make or break a case!
Jay
Tuesday, September 11, 2012
Getting Started
Hi Everyone! Jay Worrall here, making my very first blog entry. I suppose with time I will consider myself a blogger, but right now I feel a bit odd writing to everyone in general but no one in particular. Someday I suppose you, my faithful readers, will look back in the archives and say, "so this is where it all started!" I'm sure there will be excitement, such as opening an ancient Pharoah's crypt? I digress.
As the name of my blog may suggest I am an attorney. I graduated from California Western School of Law in 2003, took and passed the CA Bar on the first try, and clerked for the next 2+ years for Judge Robert C. Naraja, Presiding Judge for the Superior Court of the Commonwealth of the Northern Mariana Islands. After clerking, I went to work in the business world, and haven't truly been a "practicing attorney" since. I have performed work on contracts, employment law, bankruptcy, distribution law, and other business-related legal matters, but I hadn't been inside a court room in years--until this last week. More on that later.
Despite my absence from the courtroom, I have stayed abreast of legal issues near and dear to me, and have also kept current with my CLE's. Now that I have become more active again in the legal world, I find that I have missed it more than I realized. Of course, being involved in a high-profile criminal case is always more exciting.
I am not sure what my next project will be. I have also been helping a small non-profit get their start, and that has been rewarding. Once I get through this trial I will take a short break and take stock of my situation. In any case, thank you for taking the time to read my first post, and I hope to keep publishing a steady stream of updates about legal issues, cases I am involved in, or current events that have relevance in the legal world. I hope you enjoy my posts!
Jay Worrall
As the name of my blog may suggest I am an attorney. I graduated from California Western School of Law in 2003, took and passed the CA Bar on the first try, and clerked for the next 2+ years for Judge Robert C. Naraja, Presiding Judge for the Superior Court of the Commonwealth of the Northern Mariana Islands. After clerking, I went to work in the business world, and haven't truly been a "practicing attorney" since. I have performed work on contracts, employment law, bankruptcy, distribution law, and other business-related legal matters, but I hadn't been inside a court room in years--until this last week. More on that later.
Despite my absence from the courtroom, I have stayed abreast of legal issues near and dear to me, and have also kept current with my CLE's. Now that I have become more active again in the legal world, I find that I have missed it more than I realized. Of course, being involved in a high-profile criminal case is always more exciting.
I am not sure what my next project will be. I have also been helping a small non-profit get their start, and that has been rewarding. Once I get through this trial I will take a short break and take stock of my situation. In any case, thank you for taking the time to read my first post, and I hope to keep publishing a steady stream of updates about legal issues, cases I am involved in, or current events that have relevance in the legal world. I hope you enjoy my posts!
Jay Worrall
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