things I like

I like adverse possession, due process and riparian rights. I like the thrill of a shared idea or thought, that makes a light bulb go on in my head. I like the way two of my three professors take us along the path. I know they know where it's going, they've gone down it many times with prior students. But this is a new journey for me, and I am finding it engrossing and mostly delightful. I like the questions asked by my fellow students, they serve to enlighten me. I like the occasional gathering at the fire ring at the Hilton, and the discoveries made there. I find logic and rational thought satisfying in a way that most else does not. Oh, and I like a few other things as well. I am intoxicated by life in my 50's, never knew it could be so. Learning is a wonder drug.

the inca bridge

Some paths must be finally walked alone. They are too narrow, one can only go single file. I watch my friend take a solo journey that we others can only accompany on for a little way. And then we must perforce let go our hands and keep walking. On what I would call the backside of Machu Picchu is a sheer cliff of some several hundred feet, with certain death at the bottom. Cut into the face of that cliff is a narrow path of stone-presumably done to make it impossible for an invader to approach undetected and in force from this direction. What it means is that the traveler must walk single file, no one can walk side by side along this stretch of the path, even though before and after it is a wider path that will accomodate them. We all have Inca Bridge experiences in life, and on the other side of them, we are not the same person who began. My friend will be forever changed, and will have experienced something we can't know. I know we all have some piece of this in our lives. Each has their own private burdens and joys, that no one else can really know. And yet.

What I will do and what I won't

I'm learning (or re-learning) that I do not play well with others. I get too bossy sometimes, and others I just am not cooperative. So I'm not sure if study group is a benefit, where I learn life lessons that do not come easily; or a waste of time. I'm already well past the half way point in life, and I have generally come to terms with the idea that who I am is not always who I thought I'd be, or who I think I should be. I am assertive and sometimes overly so. I have my own ideas, and while I enjoy hearing the ideas of others, if they make grand generalizations or are dismissive of the underrepresented, I tend to dismiss their ideas out of hand. Someone who is bigoted or closed minded must be wrong-yes, I see the hypocrisy in that! But here's the thing-that is how I feel. If you don't stand for the rights of others, then I am likely to disagree with and dismiss much of what you have to say. And given that I am acutely aware of the limited amount of time I have on this planet, the next logical step is to say to myself "self, you should not waste time in a debate with someone whose mind you will not change, and who will not change yours, over things you hold dear". The result is likely animosity or frustration, and I don't want to actively encourage such attitudes in myself or others. I'd rather we discuss topics less fraught with disagreement, and leave it at that. I know I have a lot to learn, but what I'm referring to is to things that are core values. Reminds me of the song on my ipod - "Is there anyone who ever changed their mind from the paint on a sign?"

what is one's due?

"One is not entitled to justice, just due process." Statement made by my Civil Procedure professor. Another rabbit trail to follow. My mind continues to expand, but I wonder what's falling off the other end?

skeletons in the closet

We discussed California Evidence Code §1108 in class last night. I found myself in an awkward position-I abhor the damage done by sex crimes, which are by their nature generally perpetrated against the more vulnerable. It's easy to get up in arms about the child molester, the serial rapist and like actors. Yet I am troubled by the dismissal of what I see as the constitutional rights of the accused. 1108 says "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 252." All other evidence of prior criminal activity is generally inadmissible for the purpose of proving conduct on a specified occasion (§1101(a)), but this is not necessarily the case when someone is charged with a sex offense. I know I'm not addressing all elements of this discussion here, such as the judge's ability under §352 to weigh the probative value of the evidence before admitting it, but there are potential issues with that process as well. Referring to the comments in a recent post, if one is not entitled to justice, but only due process, then what happens if due process gives me 25 to life, when justice would gotten me an acquittal? A person charged with a sexual offense may have evidence of prior similar acts introduced against him/her even though they have never been convicted, tried, even arrested for them. In fact, the prior acts may be alleged for the first time during the instant case. What completely blew me away though, is that the standard of proof for the other acts offered as character evidence is preponderance of the evidence, NOT beyond a reasonable doubt. How is this due process of law? In one case I found that weighed this issue (People v Falsetta, 986 P. 2d 182), the court stated that even if the general rule against the use of propensity evidence against an accused 'were deemed fundamental from a historical perspective, we would nonetheless uphold section 1108 if it did not unduly "offend" those fundamental due process principles... in light of the substantial protections afforded to defendants in all cases to which section 1108 applies, we see no undue unfairness in its limited exception to the historical rule against propensity evidence.' The court discussed the fact that sex crimes are usually committed in a private setting with no witnesses aside from the perpetrator and the victim, and often without substantial corroborating evidence. The trier of fact often has to decide who to believe based on conflicting stories and not a lot of other evidence. 'Section 1108 provides the trier of fact in a sex offense case the opportunity to learn of the defendant's possible disposition to commit sex crimes.' On the other side of the argument, the court identified three reasons to use the general rule rendering propensity evidence inadmissible. (1) relieves the defendant of the often unfair burden of defending against both the charged offense and the other uncharged offenses, (2) promotes judicial efficiency by avoiding protracted "mini-trials" to determine the truth or falsity of the prior charge, and (3) guards against undue prejudice arising from the admission of the defendant's other offenses. (cites omitted) Because the evidence that can be admitted only applies to sex offenses, and because it must first be subject to pretrial notice and opportunity for the defense to argue against admission, the court found it was not unduly burdensome. (in this case, the defendant had actually been convicted of two prior sex offenses) The requirements of §352 mean that the court must weigh such things as the nature of the prior acts, remoteness in time, whether there had been a conviction and other relevant facts before admitting the evidence. All of this may temper the risk of unduly prejudicial evidence reaching the jury; however, I find that small comfort. I think that when it comes to fundamental rights, abrogating those rights for a select group of people lowers a barrier that ought not be lowered under any circumstance. If this can be done, what else is possible? The slippery slope is just that. How many of us have no skeletons in our closets? There are many kinds of skeletons, and few can live to middle age without their own stash of them. I know I have no desire to have mine displayed in a public courtroom, and I have grave doubts about my opportunity for a fair trial on the merits once they have been paraded in front of a jury. I do not know if there is some third choice other than the two nearly equally distasteful ones that seem to present themselves here, but I'd be interested in knowing what you think, and if you have any alternate suggestions?

to breathe

This second year is worrisome. I'm drowning, and it's only 3 weeks in. And life presses ever more insistently. I owe a piece of myself to others, and I'm slowly sinking in a morass of beloved obligation. Meanwhile, my yard continues to look like shit, I'm behind on paying bills, and I worry about my job. My car needs fixed, I want to get a motorcycle and I need to plan my son's graduation celebration. And I try to fit in some sanity inducing time with friends and my brother as well. Brreeeaaattthhheee..... It's all I can do just to hang on. Feeling all alone and desperate these days. On to Real Property tonight. Paying bills at 6 am tomorrow, and hoping to stay one step ahead of disaster. And trying to look serene through it all. Perhaps I'm doing too much, but none of these things are easy to delete from my life. Nor do I want to give them up.

success once tasted

Disappointment, and no one else to blame but myself. I don't like that very much. But it will be motivation for this second year, there is no doubt about that. I knew I had slacked off in Crim Pro, and that I was not likely to get a great grade. And I know that just passing is good, so I should be satisfied. But still. Damn it!

It's only a letter

Grades are due this week, and all else fades into background noise until we know how we did. Even for those for whom the grades are not do-or-die, the tension builds. And we wait.

the loss of a friend

I know I'm very focused right now, on law school and all that goes with it. I see that I need to get my oil changed, my car repaired, my grass cut, do laundry, pay bills, shop for food, call my parents, and so much more. But I can't do it all. And I know I'm spending less time with friends and family than they deserve.

I lost a friend today, and while I'm not foolish enough to attribute all of that to law school, it has played it's part. I'm supposed to be studying-a lot-this holiday weekend. But there is a pall cast on everything, that permeates all. So I'm playing music and attempting to study, and thinking about my friend. I did not, and would not, meet expectations. And now I am much poorer for it.

the people

We have about 30 in this melded class. The second group, just coming off their first year, is significantly larger than our little group of leftovers from our First Year, which ended in April.

It's too early to tell who might become a friend, and what alliances will be formed. Some are bound to leave in a couple of weeks, and that will tighten the group down to mostly what will carry through, although we are likely to lose a few more at midterms.

Many of the new class are younger students, and that will no doubt shape some of the in-class discussions, and for sure will affect the out-of-class friendships that develop. I'm sitting tight for now, suspending judgment or decision on my classmates.