H/T Appellate Record

Silence
is what one
knows about
a star

a far-off
shining
where no
others are

sufficient
revelation
though
it mean

no more
than of
the darkness
to be seen.

(c) G. Stanley Koehler

I only took two years of Latin in High School.

It was years before I actually admitted this to my children.  Because I often cited the Latin origins of a word, they assumed I was this great Latin scholar.  It was not until their education in the language began to overtake mine that I had to admit to them that, actually, my entire education in Latin consisted of four semesters in high school.

And I never told them that I was at best a mediocre student.   My father helped me with my homework every night – that was part of the bargain we struck when he forced me to take Latin – and our sessions consisted of a nightly struggle at the kitchen table, with him trying to coax the answers out of me and me trying to get them from him. It never occurred to me to just learn the declensions for myself. And he wasn’t there to feed me answers during the exams.

All four of my siblings went on to win the school’s Latin Prize their senior year in high school.  Years after all five of us had graduated, my father would occasionally run into the high school’s Latin teacher, Miss Donley, downtown, and Miss Donley would dutifully ask my father about all four of my siblings, going through each one of them in order of age.  But my father noticed that Miss Donley never asked about me.  After getting an update on my middle sister, she would leapfrog over my place in the birth order to ask about my younger sister.  I can imagine her pausing slightly as her mind elided over a mental picture of my charming and youthful face.

There are many possible explanations for this omission.  My father suggested she might not connect me with the other Latin scholars in our family.  But he was clearly being charitable; he knew very well that there are only so many Koehlers in Amherst, Massachusetts, and nothing ever got by Miss Donley.  No, the only possible conclusion was that she simply chose not to inquire about my well-being, her pleasant memories of my charming, youthful face notwithstanding.

Dismal performance aside, I have always thought that those two years of Latin with Miss Donley did more for my formal education than any other class I ever took – in high school, college, graduate school or law school.  Not only did it (briefly) impress my kids.  It helped with grammar and syntax and vocabulary.  It helped with foreign languages.  It introduced me to Julius Caesar, Psyche, and Roman civilization.  A passing knowledge still comes in helpful in learning many legal concepts.  And you have to love a language with the logical structure of German and the simplicity in word choice of a Raymond Carver short story or poem.

That said, my favorite Latin expression has to be Res Ipsa Loquitur.  “The thing speaks for itself.”  What could possibly be more eloquent? Michael Rahdert, our torts professor in law school, suggested we could impress our families with how much we had learned during our first semester by casually dropping this newly-learned phrase over Thanksgiving dinner.  I would have used the term as the title for this blog had it not already been taken by Jonathan Turley.

One of the major challenges to learning the law – a skill also tested by the LSAT – is the ability to think in the negative, to arrive at conclusions based not on what is there, as we are accustomed to doing, but on what is missing.  The defendant in a DUI case may have failed to signal upon turning right.  His eyes were bloodshot and glassy, and he may have slurred his words.  But for everything he did wrong, there are many more things he did right:  He was not speeding, swerving or crossing the double yellow line.  He posed no threats to other cars or pedestrians.  He pulled over immediately after the police officer activated his lights into the first available safe space off the road.  He was polite and cooperative and had no difficulty producing license, registration, and insurance.  And so on.  It is often what the officer did not write down in his report that is more important than what he did.

A similar concept lies behind the Res Ipsa Loquitur doctrine.  It is not what information is available to the parties litigating a matter or to the court; it is what is missing.  The court does not know — and cannot find out –what actually happened that caused the harm in a tort case.  But the doctrine allows the court to infer negligence or raise a presumption of negligence based on the circumstances or the nature of the harm.

A couple of months ago, I contacted Professor James Strazzella from Temple Law School to consult him on a case.  It was not Res Ipsa Loquitur I learned from him but criminal law.  In fact, whenever I have occasion to think of criminal intent, it is the image of the mens rea hierarchy in his chicken-scratch handwriting that comes to mind.

Professor Strazzella assured me he remembered me, though I am convinced he was only being polite.  But it doesn’t matter:  For every teacher who has forgotten me, or who never knew my name to begin with, there will always be Miss Donley.  Although she has long since passed away, I think of her with her horned-rimmed glasses standing in front of our classroom, Tempus Fugit scrawled out on the chalkboard behind her.  No matter what she may have suggested to my father upon running into him in the grocery store in Amherst, I am in fact convinced she remembered me very well.

A number of years ago, while on vacation in Miami, my family and I were sitting in a restaurant when a man approached the table and handed my then 15-year-old daughter a paper rose.  Angered by the intrusion, I took the rose from my daughter and tried to hand it back to him.  The man refused to take it.  It was a gift to your daughter, he said.  But, he told us, we were welcome to help him out financially with a small donation if we felt that was appropriate.

My family could not understand the anger I felt toward the man.  Neither could I, at least not until I had thought it through. It was not just that he had interrupted our family dinner and invaded our space.  It was that, in order to score a few dollars, he took advantage of my daughter’s inherent openness and good nature.  You expect the best of people.  If a man approaches you, smiles at you and offers to hand you something, your initial reaction is to accept the offering.  Next time you might be more wary.

I have had more than my share of contact with the earth’s great unwashed people.  During my first career, I traveled to some of the poorest parts of the world in Africa, Southeast Asia, and Central America. I visited the shanty towns in Philippines and stood on a smoldering garbage pile in Kenya. During my stint at the Philadelphia public defender’s office, I also represented hundreds of angry, drug addicted, mentally ill and impoverished defendants.  You quickly lose the rose-colored glasses you may have been wearing when you started the job.  I still think of my office mate in Philadelphia – a dyed-in-the-wool liberal who had spent his entire lifetime working with the poor – turning to me after a difficult phone conversation with a client and telling me he couldn’t take it anymore.  Two months later, he was gone, having accepted a job with a private law firm.

But you try to keep a separation between the two worlds.

Working in criminal defense necessarily involves a certain degree of tawdriness and, having visited a different part of town to investigate a crime scene or having become immersed in the details of a foreign life style as part of a trial, I am sometimes struck by the transition between the two worlds as I drive out from the city to the D.C. suburb where we live, the broken, sticky, littered pavement of the city giving way to the greenness of Virginia heading north on the George Washington Parkway. You do not want to inflict on your children the choices you have made for yourself.

Also many years ago, I was approached on the streets of D.C. by a well-dressed young man with a terrible tale of woe – how he had lost his wallet and just needed enough money to take the metro home.  I know, I know.  Second only to my mother, I am probably the most gullible person in the world.  So I believed his story and gave him a couple of dollars.

A week or two later, in a different part of town, the same man approached me with the same story.  Angry to see him again, I initially brushed past him and continued on my way.  But I got madder and madder as I walked and eventually went back and confronted him.

You may not remember me, I told him, but a week or so ago you gave me the same story and I gave you a couple of dollars.  You took advantage of my good nature and my willingness to help out.  I see now that the story was a lie and I want my money back.

I may have been a little bit more forceful than that; one clue to this was the look of fear in his eyes. He reached into his pocket and pulled out a handful of bills and tried to give them all to me.  No, I told him.  I gave you a couple of dollars.   And I want those dollars back.

What I would have said had I been able to articulate my thoughts at the time:  Some day, maybe tomorrow, maybe next week, another person is going to approach me – this time a person truly in need — and I am going to brush past that person.  The world is a worse place today because of what you do, preying on the gullibility and good nature of every person you meet.

And this is certainly what was going through my mind in Miami – albeit in still undefined form – as I saw my daughter reach for that rose.

My smart, lively and beautiful niece Meg posted a Facebook tribute to her grandfather today on the first anniversary of his death. And she did it with a brevity my father would very much have admired:  “GSK.”

Another Time

The note from Newman’s said

it needed cleaning,

but I wind it and it goes.

Its hands with delicate gesture pointing

like vanes around the face resume

an hour of your life.

Sunlight in the room

and memories, clear

as water.  In the mirror as you lean

to tie your tie I see

the Hamilton on its gold chain.

Ten after eight:

initials on the knife, reversed.

Where you stood on the rug

it wears.  I say my name

and hang your picture to remind me.

Another time; your breath

unclouding in the glass.

© G. Stanley Koehler

Wayne, my investigator, thinks he is being subtle.

He insists on escorting me out of a bad neighborhood whenever we finish a crime scene investigation, and he doesn’t realize I can see him lingering down the street as I climb into my car.

But this guy is bigger than his childhood hero, Jack Lambert of the Pittsburgh Steelers, and almost as pretty.

He also thinks I don’t notice him trailing me four cars back as we leave the neighborhood.  But the beat-up car – the hooptie – he uses for investigations is impossible to miss.

And then he blows his cover by flagging me down to tell me a tail-light is out.   In these neighborhoods, I guess that is a guarantee that you will be pulled over.

But I have taken his advice:  I now dress down for the investigations (sortof) and I always make sure to use my wife’s car.

Despite the pedigree, Eli Manning of the New York Giants has never inspired much confidence. To me, the startled look in his eyes in this photograph – like that of a 10-year-old Pee Wee league player who has just taken his first hit — says it all:  He is a man of much talent with very little love for the game.

Photo: The Canadian Press

Welcome to the 2011 criminal law blog fantasy football league.

Again participating this year are the top four teams from 2010 (listed in order of final rank):  Koehler Law, Liberty & Justice for Y’All, Brucklaw and A Public Defender.

Other teams returning from last year include Tempe Criminal Defense (formerly Chandler Criminal Defense) (6^th place); Law and Baseball (10^th place); and Not Guilty (16^th place).  Regrettably, Mirriam Seddiq is this year’s only female participant.

Welcome also to the teams who will playing this year for the first time:  Mark Pryor of D.A. Confidential, Matthew Kaiser of the Federal Criminal Appeals Blog, Nathan Burney of  The Criminal Lawyer, Paul Kennedy of The Defense Rests, and David Benowitz of D.C. Criminal Defense Lawyer.

Based on suggestions I have gotten from some of the (more serious) participants, we limited this year’s league to 12 teams.  We will also be doing a live draft, with the draft beginning this Saturday, August 27, at 11:30 am EST.  For those of you who want to participate this way, simply log on to your Yahoo account at 11:20 am EST and pull up your team.  Depending on how quickly people make their picks, you should probably allot a little bit over an hour.

For those of you who cannot or do not want to participate in live draft, simply pull up your team before that time on Saturday and set the draft picks the way you want them.  The computer will then make your selections for you. Recognizing that you can often be your worst enemy no matter how much you know about the NFL, I do not think that the teams that use the autopick will be at a disadvantage.

I will post a list of current standings, along with some analysis, each Tuesday here.

Best wishes and may the best man (or Mirriam) win.

Congratulations to Daniel and Vincent on a beautiful wedding in Sarzeau, France.  My wife presided over the ceremony and, because she had to write down the words in advance so that they could be translated into French, I have the benefit of that text now.  The words are reproduced in their entirety below. 

While Susan may have been reaching a tad with her references to the Universal Declaration of Human Rights, I should note that Daniel and Vincent were in fact legally married earlier this summer in Cape Cod, Massachusetts. 

While I used pseudonyms for Daniel and Vincent in earlier entries of this series on their wedding, they have given me permission to use their names and images on this blog. 

Opening Remarks

Welcome everyone.  My name is Susan Burke.  I am a friend of Daniel and Vincent’s and will be officiating the wedding.

Your presence here is significant.  You are the community that has — and will in the future — support the bond of love between Daniel and Vincent.

These two men are taking a special step – getting married with the blessings of the law and society.  Marriage is a fundamental right for all of us.  Article 16 of the Universal Declaration of Human Rights declares that everyone has the right to marry whom they choose, and by doing so form a family.

The Massachusetts Supreme Court held that “the right to marry is not a privilege conferred by the State but is a fundamental right that is protected against unwarranted state interference.”

Marriage is thus not only a personal act of love but also a communal act – the transformation of a couple into a family; a family recognized and protected by the laws of society; a form of kinship that cannot be disregarded or ignored by societal institutions.

Your participation in this transformative event is critical.  You are the society, you are the community, and your presence here is an affirmation of support as Daniel and Vincent take the courageous step of transforming their personal love into a family.

Welcome and know that your support for this couple – including your journey here – is much appreciated.

The Ceremony

We have now reached the time for the official joining of Daniel and Vincent into the state of matrimony.

In July 1965, writing in the Atlantic magazine, Mignon McLaughlin said that a “successful marriage requires falling in love many time, always with the same person.”

We know with certainty that Daniel and Vincent will have a successful marriage, as they have spent the past 26 years falling in love, many times, always with each other.  Their love for each other is understandable as each is such a lovable human being.

Vincent has the kindest soul.  His gentleness, his compassion, his caring manner – these traits warm the heart of everyone who meets him.  When you are with Vincent, you can see through his compassionate eyes the inherent goodness in everyone.  It is no wonder Daniel loves him so dearly.

Daniel is blessed with boundless energy, exuberance, and passion.  His talented commitment to social justice has no limit, no boundaries.  When you are with Daniel, you feel it is possible to change the world – or at least have a great time trying to do so.  It is no wonder that Vincent loves Daniel so dearly.

These two special men – joined together for the past 26 years – bring joy and love to all of us fortunate to spend time with them.

As Martin Luther wrote in his book Table Talk, there is “no more lovely and charming relationship, communion or company than a good marriage.”  So let us now transform this 26-year relationship of love and mutual respect into a marriage.

Article 16 of the Universal Declaration of Human Rights states that marriage shall be entered into only with the free and full consent of the intending parties.

Do you, Daniel, freely and fully consent to taking Vincent as your spouse?

Do you, Vincent, freely and fully consent to taking Daniel as your spouse?

Do you, Daniel, take Vincent to be your lawful spouse to have and to hold from this day forward, for better or for worse, for richer or for poorer, in sickness and in health, until death do you part?

Do you, Vincent, take Daniel to be your lawful spouse to have and to hold from this day forward, for better or for worse, for richer or for poorer, in sickness and in health, until death do you part?

Let us now have the ceremony of rings.  May these rings be a symbol of true faith in each other, and always remind Daniel and Vincent of their love for each other.

Daniel “with this ring I do thee wed and promise to love and honor you Vincent all the days of my life.”

Vincent “with this ring I do thee wed and promise to love and honor you Daniel all the days of my life.”

Having pledged yourselves to each other, I do now, by virtue of the authority vested in me by Articles 18, 21, 22 and 28 of the Universal Declaration of Human Rights, and in recognition of the laws of the Commonwealth of Massachusetts in the United States, pronounce Daniel and Vincent lawfully married and transformed into a form of kinship – marriage – recognized and respected by law and society.

The spouses shall now seal their union with a kiss.

On behalf of all of us gathered here today, we as a community pledge to support you both in your vows and your life together as a married couple.  We send you into your life together with the following wishes, drawn from a Native American blessing:

Now you will feel no rain for each of you will be the shelter for the other.

Now you will feel no cold for each of you will be the warmth to the other.

Now you are two persons but there is only one life before you.

May beauty surround you both in the journey ahead and through the years.

May happiness be your companion and your days together be long and good on this earth.

The final step in a Jewish wedding ceremony is the breaking of the glass.  The tradition of the breaking of the glass is long and storied with much symbolism.  For Daniel and Vincent, the breaking of the glass symbolizes the inherent impermanence and fragility of life.  By breaking the glass together as their first act as a married couple, they convey both their recognition of this fragility and impermanence, as well as their intent that their own union will be a force for good, a force to repair that which is broken in the world.

That’s my brother on the right calling the play.  My wife and daughter are to his right.  My team was much better.