Light Posting

March 23, 2006

I’ll be on vacation for the next week, so posting will be light to nonexistent until the 3rd of April. Wish me luck as I undertake the yearly ritual of cleaning what needs to be deeply cleaned, and painting what needs to be painted!

Rainy Day Miscellany

March 21, 2006

A miscellaneous roundup of stuff to keep one entertained on a rainy Tuesday:

…where the posts come tumblin’ down the T2 connection … It doesn’t rhyme, but Jim Calloway makes up for my lack of creativity with a roundup of some of last week’s best, most interesting, and at least in one case, most disturbing blawg posts at his Law Practice Tips Blog. In light of my recent WiFi acquisition, I particularly enjoyed Jeff Beard’s posting of two articles he wrote for another publication, the full text of which he posted on his blog, one on "Avoiding Mobile Computing Burnout" and another on "Enhancing Mobile Security." Note the latter link is missing the ‘l’ in ‘html’ tag on Jim’s site and so is inoperative; you can use the one here.

This just in – Moussaoui trial judge Leonie Brinkema has accepted a government/prosecution proposal to allow evidence and a witness or witnesses relating to aviation security with the caveat that they be "untainted" by contact with Carla Martin. Good result.

The Supreme Court is set to hear rearguments in a key public employee free speech case, as announced in this ABA eReport piece. That’s not so odd, when new justices come on board. The facts concern a former attorney for the Los Angeles County District Attorney’s office:

Ceballos … sued his supervisors in October 2000 in federal court, contending they retaliated against him after he exposed false statements by a deputy sheriff in a search warrant affidavit. Ceballos alleged that after he wrote a memo to his supervisors advising the dismissal of an auto theft case, his supervisors demoted him and otherwise engaged in retaliatory actions against him.

A federal district court granted summary judgment to the defendants, reasoning they were entitled to qualified immunity because the memorandum was created "as part of his job." On appeal, the San Francisco-based 9th U.S. Circuit Court of Appeals reversed. Ceballos v. Garcetti, 361 F.3d 1168 (2004). In an opinion by Judge Stephen Reinhardt, the appeals court rejected "a per se rule that the First Amendment does not protect a public employee simply because he expresses his views in a report to his supervisors or in the performance of his other job-related obligations."

In a concurring opinion, Judge Diarmuid O’Scannlain said 9th Circuit precedent dictated the result, but called for the high court to "steer this court’s drifting First Amendment jurisprudence back to its proper moorings." O’Scannlain added that "the First Amendment, in short, does not protect public employees’ routine and required speech on behalf of the government."

But court observers are pressed to pinpoint exactly which issue led to the stalemate.

"The court never really indicated any reasons why reargument was called for," says First Amendment expert Robert O’Neil, who wrote an amicus brief in support of Ceballos on behalf of the Charlottesville, Va.-based Thomas Jefferson Center for the Protection of Free Expression and the American Association of University Professors. "It is not easy to identify what exact issue may have caused the reargument, but it is probable that there was a key issue in which Justice O’Connor’s vote was critical."

"Reargument is very uncommon over the past decade," says Supreme Court practitioner Tom Goldstein of Washington, D.C. "Chief Justice [William H.] Rehnquist almost always ensured that opinions were completed by the end of each term so that reargument wasn’t required. This is the unusual situation in which a tie vote requires reargument."

But it is not rare to have reargument "when a new justice arrives in the middle of a term and there are outstanding 4-4 cases," Lederman says. "For example, the court heard reargument in four or five cases when Justice Anthony Kennedy came on board in the middle of the 1987-88 term."

Nearly all eyes will be on Alito. "Of course, any justice can change his or her mind on reargument, but the parties to the case would be wise to presume that Justice Alito will determine the outcome," Lederman says. …

The Ninth Circuit’s opinion can be found here. For additional information, take a look at the Firs Amendment Center’s page on the case here (with transcripts, oral arguments, and other supporting documents).

EDITED – I did not originally intend to publish the entirety of the article. I do recall a few things from my Copyright class in law school. I’ve edited the post by taking down the remainder of the article.

So Carla Martin, the TSA attorney at the heart of the Moussaoui witness fiasco, has been placed on paid administrative leave. This is not surprising. I suspect Francine Kerner, TSA’s Chief Counsel, had no choice but to do so (but don’t know that for a fact, of course, being relatively unschooled in the ways of the federally-employed). (I met Ms. Kerner at AAAE last fall as well as some of her staff attorneys – I’m not sure if Ms. Martin was among them, but I don’t recall seeing her, judging from published photographs).

I think I’m going to take some heat for saying this, but – here goes:

It’s hard for me not to feel a moderate, if not significantly larger, degree of sympathy for Ms. Martin.

Let me be clear. I don’t condone her actions, if the allegations are true (it seems to have been accepted as gospel by Judge Brinkema, the prosecution, and most media outlets that they are, but, again – I don’t know that for a fact). Nor do I think she can be excused on the grounds that she wasn’t aware of the judge’s order; the rule on witnesses is fairly commonplace, if not ubiquitous, and this can’t be the first time she came across it.

No, my sympathy stems from a deeper place, and it’s based on my reading between the lines – a lot. Reading this article, and this one, in context of the larger picture of the Moussaoui circus trial, a picture emeges (at least in the movie theater in my brain) of a woman with a strong sense of self, a zest for her work, and a desire to be seen as an expert. And all of that resonates with me, big time.

Did she mean to derail this trial? It seems obvious to me the answer is "of course not." I can’t fathom that she meant to do anything but help secure the outcome sought by the administration. Therefore, the consequences of her actions (both personally and to the trial), while understandable and foreseeable, seem overwhelming to her, I’m sure.

Has any lawyer ever not been in a similar position? Of having blundered, or almost blundered, or having contemplated blundering, into an area that, in hindsight, would have produced disastrous results? Did you ever start to open your mouth in a client meeting when you were a first-year associate, and later thank God you didn’t because you were about to misstate the law in such an obvious way as to have made your boss sorry he hired you? Did you ever toy with filing a motion you later learned would have gotten you disbarred? These examples are deliberately extreme. What Ms. Martin stands accused of is extreme. But we’ve all come close to making mistakes, and every single one of us has made them – some of them real doozies, I’m sure.

What’s about to happen to Ms. Martin is also extreme – extremely serious, extremely stressful, extremely unpleasant, and extremely detrimental to a career she obviously cares deeply about. It’s also extremely appropriate, in every sense, and while I wish her well, and feel some empathy for her plight, there’s a tiny part of me that wonders how many others engage in activities that bad, and worse, every day, and wishes they came with warning labels.

The FAA is joining other federal agencies in revising the status of previously disclosed documents from "open" to "exempt from disclosure," apparently taking off of its website a report from a meeting it held with pilots regarding the rules for air travel in the DC environs.  Recall that no-fly zones were imposed around the nation’s capitol after 9/11. The document, which was previously open-access on www.faa.gov, was actually a transcript of that meeting in which the rules establishing the no-fly zones were soundly ridiculed by private pilots, who pointed out various inconsistencies and puzzling results (briefly discussed in the above-linked article on AirportBusiness.com). NPR’s Alex Chadwick and Slate’s Steven Aftergood discussed the ongoing efforts of the Bush Administration to reclassify previously-disclosed documents recently on NPR’s "Day to Day"; the Slate commentary can be read here.

If you’re at all familiar with David Allen’s phenomenally successful (and wildly helpful) book Gettings Things Done (affectionately known as "GTD" amongst "GTD"rs), then you’re most likely also familiar with 43Folders, a blog run by Merlin Mann "about personal productivity, life hacks, and simple ways to make your life a little better." (And if you’re not familiar with Allen’s book – stop right now, and go buy it. No kidding. I’m counting to three …. yikes, sorry. Forgive me. I am a mom…)

Merlin’s started a series on his blog about getting the email inbox to "zero" – i.e., clearing it out completely. If your inbox is anything like mine, you truly owe it to yourself to go read these articles. It won’t take long and the emails will still be there. Believe me. I checked. I know.

OK, back to those 5 of you who haven’t read GTD. To get a preview, start at Merlin’s introductory post here – "Getting Started with Getting Things Done." The program Allen presents is somewhat daunting at first, but (I can’t stress this enough) it is beautifully simple once implemented. It takes practice, and it takes copious quantities of patience at first, but it can be adjusted and tweaked to fit each user’s lifestyle and existing systems, and that? Is beautiful.

Brinkema’s Order

March 15, 2006

Brinkema’s order barring the government’s aviation-related evidence is up here. Five sentences.

Palm For Sale – Cheap

March 15, 2006

Readers may remember my post earlier on the new T|X and my acquisition thereof in the eBay auction. After some consideration, my spouse, my kid, and I collaborated on a true "Schelin Family Production" and we now proudly present: "Broken Palm: An Auction Story."

The catalyst for this tale was my discovery, during my search for information about the T|X last week, that nonfunctional Palms and other brand PDAs are being sold on eBay for good money – for parts, for fixing-up and use or resale, or whatever.  I took a look at one of those auctions and told my husband about it. "Why don’t you sell yours, then?" he said.

"Well, Kayleigh put those stickers on the case… I’d have to clean those off…" I mused.

At the same time, which we often do (kind of freaky but we take it as a sign of validation from the universe of the rightness of our marriage), we said, "No we don’t!" – we both conceived of this approach simultaneously.

We pitched the idea to Kayleigh last night, who was only too happy to participate. She was a little indignant that the pictures I took didn’t show her pretty face, but Mom’s safety-consciousness and Internet-wariness won out.

I highly doubt this will achieve "Virgin Mary on Grilled Cheese" status, but it was fun, and as Chris commented, "Maybe you’ll make someone laugh and that’s always good karma."