BeldarBlog

Is that a Glock under your robe, Judge, or are you just glad to see me?

On May 29, 1979, as I was concluding my second year of law school, I had the good fortune to be an invitee in the chambers of one of the "Unlikely Heroes" and most legendary judges of the U.S. Court of Appeals for the Fifth Circuit, Irving L. Goldberg. I'd submitted an application to be among his law clerks for 1980-1981, and he'd graciously invited me to come in for an interview. As we were getting acquainted, he received a phone call — something urgent, I knew, because he'd told his receptionist to hold his calls while we were meeting — and I quickly gathered from hearing one side of his phone conversation that something exceptional, and exceptionally bad, had just happened. In short succession he got a half-dozen more calls, each very brief, and by the time he'd finished I had figured out what had happened.

I'd just observed the Fifth Circuit grapevine in action, and what had set it abuzz was that for the first time during the Twentieth Century, a federal judge had been assassinated outside his home — specifically U.S. District Judge John H. Wood, Jr. Judge Wood sat in San Antonio, part of the Western District of Texas, and appeals from his court went to the Fifth Circuit. The obvious concern sweeping the chambers of the judges of the Fifth Circuit was that the likely assassin had been provoked by one of Judge Wood's rulings or sentencings, most likely from a criminal case — and the odds seemed pretty high that a three-judge panel of the Fifth Circuit had also passed upon that litigant's appeal as well, perhaps making them targets too.

This was in an era when there were not so much as metal detectors at the entrance of most federal courthouses, including the one in Dallas — maybe not even a security guard visible (beyond the U.S. Marshals who came and went escorting prisoners). As I exited, though, I saw that the security status of the building had suddenly changed — Marshals with side-arms and in some cases shotguns were roaming the lobby, the stairwells, and such. They were, if anything, trying to be very conspicuous with their presence, and they were succeeding.

As things happened, my application with Judge Goldberg was still pending when I got an invitation to clerk for Fifth Circuit Judge Carolyn King in Houston, which I accepted immediately. (One doesn't apply to clerk for a judge whose offer one is unwilling to accept immediately.) Once during the year of my clerkship in 1980-1981, one of my co-clerks accidentally stepped on a floor switch tucked away beneath a table in our chambers library, and within about 90 seconds two Marshals with drawn weapons were there with us in the room. We were embarrassed, impressed, and comforted. But even then, security in the building was remarkably light — still no metal detector, and the small parking lot behind the building where the judges had reserved spots was unfenced, without a security camera. The judges had a private keyed elevator at the back entrance from that lot that their law clerks were also allowed to use, but that was as much for privacy as security, I think. Chambers doors were generally unlocked — no door-unlocking buzzers and intercoms — and clearly marked to show their occupants.

*******

Obviously things have changed since then — in society generally, but certainly in courthouses, both state and federal. And every judge I've ever met, at any level, has been quick to praise and express appreciation for their bailiffs and other courthouse security personnel.

But the bailiff may not be the only person in the courtroom who's packing heat. The National Law Journal has an article discussing judges who themselves carry guns (hat tip: InstaPundit):

Earlier this month, a Florida judge was ordered to accept mentoring after warning a defense attorney that he was "locked and loaded." In May, a judicial ethics committee of the New York State Unified Court System found that it was ethical for a judge to carry a pistol into his courtroom.

In Nevada, Oklahoma and Texas, incidences of violence in the past year have prompted new laws or solidified rules allowing judges to bring guns into courtrooms.

"Judges in our courthouse have been carrying guns almost all the time," said Cynthia Stevens Kent, a Texas judge in the 114th District Court, where a man in a family law case killed his ex-wife and son last year on the steps of a Tyler courthouse.

"We feel strongly about providing adequate security, but it comes down to personal responsibility. And you've got to take responsibility for your own safety," [Judge] Kent said.

I was unsurprised to read that Texas may be out front of many of its sister-states on the issue of judges bearing arms:

In Texas, which permits state judges to carry concealed handguns into courtrooms, a new law became effective that expands that right to include federal judges and district attorneys. The law followed the Tyler shooting.

"We believe each judge should be able to make sure he has a system of self-defense," said [Judge] Kent, who wears a shoulder harness and carries a gun at all times. "One of our biggest areas of target is when we're in the court making decisions."

Judge Kent also testified before Congress in 2005 on the subject of security in the judicial system, during which she pointed out that the threats aren't always just to the individual participants in that system:

As any person in America, it is my personal responsibility to use common sense in protecting myself against acts of violence. As a Texan, I take full advantage of my Constitutionally protected right to self defense. However, these threats are not just a personal threat against me and my family, these are acts of domestic terrorism and are meant to disrupt our judicial system and our civilization.

And in a comment that probably related to the controversy then on-going about U.S. Senator (and former trial and appellate judge and state attorney-general) John Cornyn supposedly "stirring up hatred against judges," Judge Kent stressed that this isn't, or shouldn't be, a partisan issue:

When judges are subject to threats, intimidation, and assault, our entire system of justice is under attack. Although free dialogue and public debate regarding judges is certainly important and constitutionally protected, responsible legislators and politicians should understand that when someone paints with a broad brush the simple country judges of America can be smeared with the partisan paint of the day. Inciting the public to distrust, disrespect, or threaten the members of the judicial system only invites anarchy. There are good and bad judges just as there are good and bad plumbers. However, keeping our judges secure and independent helps prevent justice from failing the designs of our founding fathers and the needs of 2005 America.

And on March 9, 2005, before her Congressional testimony, Judge Kent had a brief moment of scary fame on CNN:

COOPER: We take you back to Tyler, Texas now, where, on the 24th of February, the town square was turned into a war zone. A heavily armed man heads to the courthouse, where armed guards engage him in a fierce gun battle.

Sean Callebs takes us behind the headlines again, shows us what happened inside the courthouse as the battle began.

(BEGIN VIDEOTAPE)

CALLEBS (voice-over): This is Smith County Courthouse surveillance tape, deputies rushing to confront a gunman who has already killed. While the shootout played out in the town square, chaos on the second floor. A capital murder trial interrupted by the unmistakable pop of weapons firing.

UNIDENTIFIED MALE: Get down. Stay down.

CALLEBS: Deputies, guns drawn, prepare for the worst. In the back of the courtroom, Judge Cynthia Stevens Kent is ushered to safety. For the first time in recent years, the judge realizes she has left something important in her car.

JUDGE CYNTHIA STEVENS KENT: I carry a Smith and Wesson .38 revolver. A lot of the judges do carry personal protection. Of course, this is Texas, OK? And in Texas, I'm a Second Amendment gal. I like the revolver.

*******

I've been fortunate in my law practice in that with rare exceptions, the civil litigants with whom I've dealt have mostly been, well, civil, or at least non-violent. (Among the exceptions was the CEO of a publicly traded company who tried to take a swing at me in a videotaped oral deposition. His lawyer, a very petite woman who now is on the federal bench, literally grabbed him by the ankles and hauled him back across the conference table, plopped him back into his executive armchair, and rolled him out into the hallway.) Like many Texans, especially those raised in a rural or semi-rural setting, I've got some deer and quail hunting in my background, and some time at the firing ranges. I'm comfortable with guns, but I've never felt the professional need to carry one, notwithstanding this amusing conclusion to the NLJ article (emphasis mine):

On Jan. 1, Kansas plans to permit judges and whomever they designate to carry concealed firearms in the courtroom. Phillip Journey, the state senator who authored the bill and a practicing attorney, said he spent a decade seeking to overturn a blanket prohibition on firearms in the courthouse.

"If I had a judge's permission, I'd do it every day," he said of bringing a gun into the courtroom. "Guns are like lawyers: Better to have one and not need it than need one and not have it."

I have been compared to a "hired gun" before, but I think that was meant metaphorically.

While it's far from unknown, however, for disappointed litigants in both civil and criminal cases to blame the prosecutors and/or their own lawyers, us "hired guns" aren't typically the final decision-makers, and just by the nature of their job responsibilities, judges in general are at a higher risk. I don't very often have occasion to think about it, but when I do, my working assumption is that any judge I appear before might be packing. I certainly could picture the late Judge Goldberg, liberal but often libertarian and nobody's wimp, with an ankle holster. I probably couldn't have imagined my own judge carrying twenty-five years ago, but now? Maybe.

And I've appeared from time to time before state-court judges who not only were armed, but were not at all shy about ensuring that the lawyers who practiced before them knew about it. What good, after all, is a secret deterrent? The casual display of the weapon was typically done in chambers rather than in open court, and contrary to Blue-State assumptions about Texans, only very rarely included any fast-draw practice or shooting of tin cans off a fence.

But I'm always vaguely aware of — and every time I think of it, more than vaguely grateful for — the security personnel I deal with at the courthouse. I sometimes get funny looks, but always returned appreciation, when I say to the security guards as I'm going through the metal detectors, "Thank you for helping keep us safe." (Joke about them privately if you must, but the fact is that they do help.) And while I've appeared before some judges whose reversal rates in the appellate courts may suggest they're more prone than others to err, I've never been worried about one of them going postal.

New judges in both the state and federal courts typically get training now on "how to be a judge" — focusing on the administrative tasks, mostly, since they're presumed (rightly or wrongly) to already know quite a bit about courtroom practice and substantive law. But it wouldn't surprise me too much to see some ambitious Texas legislator introduce a bill to include target-range experience among that training, along with some tips on how, for instance, to keep the new bailiff on duty from mistaking the pistol-packing judge, perhaps not yet robed because she's merely en route to her chambers, from an ordinary litigant, witness, or lawyer. Risks are inherent in firearms, there's just no denying that. But risks are also inherent in courtrooms, and risks associated with firearms can be substantially minimized through training and forethought.

And if we can't presume that the person in the black robes is one of the "good guys" in addition to being one of the likely targets, then why are we letting them decide our fates in court?

Spitzer smile freezes as sharp-tongued Schumer slaps Rangel

If ever there were a photograph that deserves a caption contest, it's this one from a NYT story headlined "Spitzer Visits Capitol Hill With Long List." (The subhead should, I believe, say something about "naughty and nice" and "checking it twice.")

The NYT's actual caption is much, much more boring than the photo: "Eliot Spitzer, New York's governor-elect, middle, met with Representative Charles Rangel, right, and Senator Charles Schumer, at a breakfast with the New York congressional delegation."

I'm sure you can do better. Comments are open.

Leeches, stents, modern medicine, and lawsuits

"Weekend stent blogging" never quite caught on, but stories like this one in today's WaPo, headlined "New artery stents raise safety concerns," may change that:

A flurry of recent research has raised alarm about the safety of a new generation of stents that have quickly become the most commonly used devices for treating clogged arteries, creating widespread concern about how to care for millions of heart-disease patients.

The stents, tiny drug-secreting mesh tubes used to prop coronary arteries open, appear to carry a small but significantly increased risk of causing blood clots, compared with older "bare metal" versions. That may boost the patients' chances of suffering a heart attack or dying, according to the studies, including one released yesterday.

Two such "drug-eluting stents" have resided in a pair of my coronary arteries since last July. So I'm sort of reminded of the story about the guy who slips and falls from the observation deck of the Empire State Building. As he's falling, his cell phone rings. It's his best friend. "Can't talk long right now," says the fellow, "I just fell off the Empire State Building observation deck." In shocked tones, the friend blurts out, "Oh my God, how are you?!?" "Meh," answers the fellow, "So far, so good."

My ex is a physician, and I used to tease her by saying, "While my predecessors as lawyers were doing things like writing the Constitution and the Bill of Rights 200-plus years ago, yours were leeching George Washington to death!" Of course, now leeches are back in medical fashion, if not quite considered to be the panacea they were in Washington's time. This time there's hard science, a substantial body of medical evidence, supporting their use. But anyway, back to the WaPo story:

"This is a public health issue of great importance," the FDA's Daniel Schultz said yesterday. "Our goal is to provide the American public with a coherent, understandable explanation of the risks and benefits associated with these products."

The situation, which has triggered an intense, sometimes bitter debate among cardiologists, illustrates the potential dangers of assuming that new technologies are necessarily superior and of adopting them widely before long-term studies are done, experts said.

"Everybody wants to be perceived as doing the most modern thing for their patients and fear being labeled someone who is old-fashioned and not using the latest and greatest thing," said Spencer King of the American College of Cardiology.

I'm very, very well acquainted with the concept of "informed consent" as a medico-legal matter. (Great term, that: "medico-legal." Nobody really knows what it means, but it makes you sound more knowledgeable to say or write it.) And as they handed me the consent forms to sign, I remember thinking, while flat on my back in the cardiac intensive care unit at Methodist Hospital last year, "These forms pretty much boil down to 'The stuff that we're proposing to do to you might hurt or kill you, but we'll try not to, and if we don't do that stuff, you might be hurt or killed anyway.'" As my cardiologist was running a catheter from an incision in my groin up to my heart, I didn't ask him, "Hey, Doc? For these new drug-eluting stents, how many years of evidence from controlled studies are in yet as to whether they might be more likely than plain stents to cause clots later?" Pretty much whatever answer he might have given me then, I'd still have just asked, "So what would you do if you were me, Doc?" Based on what he knew then, he almost certainly would have said, "I'd want this stent." And that would have been plenty good enough for me.

I don't know what he'd say if asked that question today — which is to say, I have no idea if he's been in that recent "heated debate" among cardiologists, and if so, on which side. Another WaPo story reports that a just-released Duke University study "also showed a marked reduction in the need for repeat angioplasties among patients getting drug-eluting stents — one in 12, compared to one in five for those getting bare-metal stents." Hey, that sounds like a trade-off that might be worth taking, especially if (as seems also to be the case, emphasis on the word seems) the clot risk can be reduced through a medication called clopidogrel.

But I'm not a bit worried that a year ago, my cardiologist prescribed those stents for me based on some desire not to "be perceived as old-fashioned." Wow, that's an insulting notion, and I can't believe it could be even partly true in even a tiny fraction of situations; but I'm absolutely certain it wasn't true of my own cardiologist. Even with all of the science available to modern physicians — even the specialists at cutting-edge teaching hospitals — there's still an element of art in the practice of medicine. And certainly there are lots of judgment calls, in medicine just as in law, and the essence of being a professional means that people outside your profession have to rely upon and trust your judgment.

How much education would I have needed to make an intelligent decision without the benefit of my cardiologist's recommendations and judgment? I've got a decent education in science, and a pretty good understanding of medical language and concepts for a layman. But when I first heard them talking about this, I don't think I had any clue what a "stent" was, much less a "drug-eluting stent." Until they explained it a little, I thought they were saying "drug-eluding stint" — and I was wondering, What kind of time-frame are they talking about my having to dodge drugs during (and how, and why)?

Get away from me with your dirty paper cup full of meds, Nurse Ratched, at least for now! I'm embarked upon one of my drug-eluding stints!

So, Doc, if you're reading this by any chance, you can exhale now. At least one lawyer you installed drug-eluting stents into last year has pretty much admitted that if he keels over from a heart attack tomorrow, his survivors won't have a decent case against you. I trusted your judgment, and was, and am, damned grateful for the benefit of it, along with your technical skills.

Did I read those WaPo articles pretty carefully, knowing that this issue applies to hardware that, for me, is "hard-wear"? Oh, sure. Am I going to lose any sleep over it tonight? Naw. It's not something that would be productive to worry about right now.  And I'm almost certain that other factors that I can control — "Put down that cheeseburger, Beldar, and get back on the cross-country ski machine!" — are more likely to determine my future cardiac health.

Life is ultimately a terminal condition. But so far, so good.

Meanwhile, at Anniston Army Depot

On the home page of tomorrow's WaPo, I see a link reading "Military Equipment Wearing Out," and my first reaction is: "Well, duh!"

But it's actually a very good story, written about some very dedicated people in uniform who are very much "behind the scene," and a serious problem they're confronting to the best of their abilities.  This article reminds me of historical accounts I've read recently (sorry, I can't readily lay hands on a link to a source) which emphasized that besides the simple numerical superiority the U.S. had in World War II with, for example, our ubiquitous (if individually inferior) Sherman tanks, another little known advantage we had over the German army was our ability to to pull wrecked tanks off the front lines, refurbish them, and put them back into combat. (The German Tiger and King Tiger tanks, by contrast, were extremely difficult to recover, and once one was knocked out, it was probably lost forever to the German war effort, whereas three or four of the half-dozen Shermans it might take to knock out that Tiger would eventually be put back into service.)

John Milton wrote that "They also serve who only stand and wait," but the modern-day corollary to that might be, "They also serve who may be behind the front lines, but who bust their butts doing maintenance and upkeep and logistical support." Particularly in conflicts like those in Iraq or Afghanistan, where the "front lines" are fluid if nonexistent, some corporal in northeastern Alabama who's repairing and updating a Bradley Fighting Vehicle is contributing very, very directly to the war effort.

Surely we owe them, and the troops they're supporting, enough of our tax dollars so that their lives and their mission aren't compromised through lack of repairs, replacements, and upkeep.

One small step for a man ...

After a giant leap on July 20, 1969, mankind has mostly stood pretty still, looking around and even backtracking.

(And yes, Neil Armstrong actually did say "one small step for a man," which makes vastly more sense in context. Armstrong is a pragmatic, in some ways enigmatic fellow, but he's no dummy, and fully appreciated the significance of the moment. Modern voice-analysis software has confirmed that his "a" was indeed spoken, although inaudible over the moon-to-earth radio link.)

The space shuttle has certainly added lots to our scientific knowledge. The space station was a great idea that's been only poorly realized for the most part. But even the most enthusiastic supporters of those programs must concede that nothing has remotely matched the drama and excitement and enthusiasm that attended the first moon landing.

I was about to start the sixth grade, and I can remember that day vividly. As I watched on television with my family, I was surrounded by plastic scale models of the Eagle and the Columbia and the Saturn V, and I could describe for you in detail every stage of the Apollo 11 mission. Those men, and their predecessors in the space program, were the heroes of my childhood. I was a Sputnik baby, born a month after the space race began in 1957, and I could name every Mercury astronaut, and every Gemini astronaut too.

I cried for days over Apollo One. I was in the midst of a jury trial when the Challenger blew up on January 28, 1986. I heard about it over my lunch break, as I was eating a stale tuna-fish sandwich at the courthouse while preparing my closing argument, and wondered if I could manage to hold down that lunch and get through the day. And I was blogging on the morning of February 1, 2003, when the shuttle Columbia was destroyed during re-entry. Each of those setbacks hurt. But it never once seemed to me that they were good reasons, or any reasons at all, to give up on manned exploration of space.

My own four kids, by contrast, have only the vaguest of appreciation for our astronauts of today — notwithstanding having grown up in "Space City USA," home of NASA and Mission Control, the city whose name was the first word spoken from the surface of the moon, the city where John Kennedy first announced (in a speech that still reads awfully well today) that we would go to the moon in that decade, not because it was easy, but because it was hard. My kids read a fair amount of science fiction. But to them, it's little different from reading fantasy. Dragons, trolls, faster-than-light spaceships — all sort of alike in the category of speculative fiction, something entertaining but not something to which they directly relate. My kids have never tediously assembled plastic models of the shuttle or the space station, not because they lack imagination, but because our society hasn't sufficiently challenged and tantalized their imagination with tangible, current adventures in space.

Sure, there are lots of other things for governments, including ours, to spend money on. There always will be. But what kind of penny-pinching, short-sighted fool has such a limited imagination that he can't see the opportunities, the destiny here? I have no patience with such people, and I cannot identify with them at all.

So I'm pretty gung-ho about the newly announced NASA plans for a permanent moon colony and its eventual role as a way-station to Mars and beyond. In my "topics" choice for this post, I've included "politics" along with "current affairs" — but this ain't about politics, and it's really not even about what's current. I don't have a category set up for blog posts about "really important stuff connected with the destiny of our race," but this is all about the future, and it's really, really important — not so much for me or my own kids, but for theirs and their grandkids and their grandkids' grandkids.

If you are a commercial website guru ...

... who's looking for a client who's terribly, terribly in need of your services, contact Polar Fitness in Finland, www.polar.fi. I recently bought one of their heart-rate monitors to exercise with, and I like it pretty well. And they have what's supposed to be a website to permit you to upload data from the monitor to keep track of your exercising. But their website is the slowest piece of junk on the internet — like communicating with one of those old bulletin boards at 28k baud in 1992, or maybe worse. I think I'd actually read something about how slow the site is in a review before I bought the monitor, but I thought, "Naw, that's just someone with a slow internet connection." Nope. It is awful.

Now, I know that's not up to my usual standards of blog-worthiness, and I'm sorry for that. But sometimes ... you just have to rant. (InstaPundit does it all the time! Although he also sometimes raves.)