Monthly Archives: February 2012

Legal Fiction: Chapter 1

There’s nothing harder in life than outliving your child. Forget any heartbreak you think you’ve been through – nothing compares.

Karen Hale learned this the hard way when she lost her son Matthew. Like many mothers, she’d had never been fond of her son going into the army but didn’t have the heart to dissuade him from following his dreams. Matthew’s father was an army man and he wanted to be just like dad. Never mind the fact that his father was also a terrible husband and a worse father…those are the kinds of things a wife understands and a child doesn’t. Maybe that’s what made it especially hard for Karen when the men in uniform knocked at her door to give her the news: the Lord hadn’t taken her son away from her, her ex-husband had.

And then tragedy struck again. Only three years after losing Matthew, Karen got the call every parent has nightmares about. As she was in the middle of preparing lunch, the phone rang. She peered at the phone’s caller ID.  “Area code 212…hmm…must be Chelsea. I hope everything’s ok” she thought. Chelsea was the good child. She was the child that played well with others and obeyed her elders. She was the child that got all A’s, got into Georgetown, then Stanford Law, then landed a prestigious corporate law job.  She was everything Matthew wasn’t and deep down she was Karen’s favorite…even though Karen would never ever admit it. She and her daughter would talk from time to time but usually it was on the weekends. That’s what led her to feel a little worried. Her daughter was calling her on a Tuesday afternoon in the middle of work.

“Hi Chelsea, how’s everything?” Karen answered.

“Is this Karen Hale?” a gruff, male voice tersely replied.

“Yes…who is this?”

“I’m Detective David Stark from the New York Police Department. How is Chelsea Hale related to you?”

“She’s my daughter, why?”

“Have you spoken with her recently?

“Not for about a week. What’s all of this about sir?”

“Ma’am, how quickly can you get to New York?”

He didn’t need to say another word. Karen’s heart dropped as she started to realize that something very very wrong had happened. Still, she asked “is Chelsea in some sort of trouble?”

“Ma’am, there’s no easy way to … we believe she may have taken her life this morning.”

The phone dropped from her hand and Karen stood in shock. She stared out the kitchen window, juxtaposed against the world around her. Outside, it was a beautiful day. The sky was a brilliant azure kissed by a glowing mid-day sun. The birds were dancing throughout the sky, using the crisp breeze as their playground. Inside, a storm was building and the rain began pouring. Karen began to tear up then cry then sob as she stood frozen in place. Meanwhile the phone lay on the ground as the NYPD detective tried to reach out.


“Mrs. Hale?”

No response.

More Disappointing (Though Unsurprising) Collateral Attack Rulings

Quick habeas updates. As if it weren’t already hard enough to bring a habeas petition under AEDPA’s § 2254(d), the Court continues to show that pretty much any circuit court grant of habeas is going to be overturned. In Wetzel v. Lambert, the Court per curiam reversed the 3d Cir.’s habeas grant over the dissent of Justices Breyer, Ginsburg, and Kagan.

Then, in Howes v. Randall, the 6th Cir. was reversed on a fairly interesting “custody” issue under Miranda. This time, Justices Ginsburg, Breyer, and Sotomayor authored partial concurrences and partial dissents.

Long story short, the Court continues and continues to narrow relief under § 2254(d)(1). As I’ve ranted before, it certainly seems that they’re trying to read the statute so narrowly as to make it practically impossible to ever be useful. It’s Rehnquist federalism on steroids. It’s … well it’s depressing.

-Zachary Cloud

“Justice Scalia makes up with University of Chicago”

The title of this post is taken from this Chicago Sun-Times piece about Justice Scalia’s recent talk at UofC. About three years ago, Scalia dissed my alma mater’s law school. Apparently he’s feeling nicer this time, calling us “one of the most formidable intellectual institutions in the world; a really impressive place.”  Aww thanks, man! The Chicago Tribune also has a piece on Scalia’s visit, which is here.

-Zachary Cloud

The Interrupters: A Must-Watch Documentary

I love Chicago; it’s one of the greatest cities in the world. That said, I’m wholly ready to admit that the Second City suffers from one of the most serious gang problems our nation knows. The Interrupters is a documentary about a group of individuals—largely former gang members themselves—who actively seek to intervene or “interrupt” violent crime in some of Chicago’s most gang-ridden neighborhoods. It’s airing nationwide on February 14 on PBS and it is a must-watch.

It is especially a must-watch for those of us who believe in holistic defense. I think employing “violence interruption” techniques seems like a natural next step to what holistic defender organizations such as Rhode Island Public Defender and Bronx Defender are currently doing. Some food for thought…and perhaps for a future post. For now though, just mark your calendars. Watch The Interrupters on PBS or buy the DVD (or watch a live screening)!

-Zachary Cloud

Judge Sentences Couple to Red Lobster / Bowling Date

When it rains, it pours. That’s right, another video. Hat tip this time goes to everyone on the blawgosphere that posted about this story.

A judge sentences a man involved in a domestic dispute with his wife to the following: “He’s going to stop by somewhere and he’s going to get some flowers . . . . And then he’s going to go home, pick up his wife, get dressed, take her to Red Lobster. And then after they have Red Lobster, they’re going to go bowling.”

I cannot get the video to embed properly but you can watch it here. For believers in love, it’s guaranteed to make you smile…or at least grin.

-Zachary Cloud

P.S. If you were thinking, like I was, that Red Lobster and bowling seem like a strange date combo, the video illustrates that the wife suggested both upon inquiry of the court.

Justice Sotomayor on Sesame Street

Big tip of the hat to Kevin Underhill on Lowering the Bar for the video below:


Kevin does raise some pertinent issues about this: (1) where’s the federal law matter in question? (2) why is she hearing new testimony? (3) what law is even being applied / in what jurisdiction is Sesame Street??

Also, don’t miss Kevin’s brilliant comment at the end: “Coming up: Justice Scalia refuses to stay Elmo’s execution despite newly discovered evidence that he is innocent.”

In short, Kevin’s post—and the mere existence of this video—made my day!

-Zachary Cloud

Killer Whales Abandon Murder, Take to Filing Law Suits

According to the BBC, there is a case pending in the United States Court for the Southern District of California in which PETA has named 5 killer whales as plaintiffs. PETA has it that killer whales have Thirteenth Amendment rights, which SeaWorld is violating.

Apparently, Judge Miller held oral arguments on … well, something. The article doesn’t make it clear but I suspect it was our old friend the 12(b)(6) motion to dismiss for failure to state a claim. See Fed. R. Civ. P. 12(b)(6).

While I suppose that the text of the Thirteenth Amendment does not explicitly limit its application to persons and not animals, I don’t expect this case to go anywhere. It has only a tiny bit more chance of success than trying to sue on behalf of a tree.

And we’ve seen how well trees fair as plaintiffs. Judge Gills put it nicely in verse: 

We thought that we would never see

A suit to compensate a tree.

A suit whose claim in tort is prest

Upon a mangled tree’s behest;

A tree whose battered trunk was prest

Against a Chevy’s crumpled crest;

A tree that faces each new day

With bark and limb in disarray;

A tree that may forever bear

A lasting need for tender care.

Flora lovers though we three,

We must uphold the court’s decree.


Fisher v. Lowe, 333 N.W.2d 67, 67 (Mich. Ct. App. 1983) (footnote omitted).

-Zachary Cloud