See Something? Maybe Think Before You Say Something?
May 11, 2016 (Mimesis Law) — Sitting at the gate at Newark airport. Waiting for my flight to Cleveland. Taking notes about something or other. Maybe a transcript. Maybe a brief. Maybe thoughts for a blog post. (Not Fault Lines, this was a couple of years before Fault Lines, but maybe the now too-long ignored blog, Gamso for the Defense.) The what doesn’t matter anyway.
But I was done. And because fountain pens leak on airplanes, I unscrewed the barrel of the pen, plucked out the half-used ink cartridge, and tossed it in a trash can. Now my shirt pocket would stay clean on the flight, as would the inside of the pen’s cap.
And then I was reading whatever book I was reading when a guy in a polyester suit (I’m making the polyester part up, but it may be true) interrupted me. He showed me a badge. Asked ordered me to step away from the gate.
What, he wanted to know, had I tossed into the trash. “See that lady over there,” he said nodding his head toward a crowd of about 85 people. “She thinks it was maybe a bomb.”
SEE SOMETHING? SAY SOMETHING!
Fucking imbeciles. I said it was the ink cartridge from my fountain pen.
“Figured it was something like that,” he said. “But we can’t be too careful. I’ll tell her it’s OK.”
Which story I thought about when I first read about econ-professor/not-terrorist Guido Menzio who was working on the details of a terrorist plot differential equations next to a paranoid passenger on a plane.
Noel Erinjeri wrote about Menzio here at FL on Monday, contrasting his experience with that of Khairuldeen Makhzoomi, an Iraqi refugee speaking Arabic on a plane.
Professor’s flight was delayed two hours. He was, he said, treated respectfully. And he got an apology. Makhzoomi, not so much. Taken from the plane. Dogs. Cops. Groped. Held for hours. Even then the airline wouldn’t fly him.
Me, I made out even better than Menzio. (Of course, I wasn’t doing math. And I’d used a fountain pen, clearly not the terrorist weapon of choice.) But
SEE SOMETHING? SAY SOMETHING!
Better safe than sorry. Because it’s all dangerous. Because we’re angry. And afraid.
Just ask Lenore Skenazy, “America’s Worst Mom.” She let her 9-year-old son ride the subway by himself. And as you might expect, her son was kidnapped, raped, and murdered.
Oh, wait. None of that. He got home safely!
LORDY! IT’S A FUCKING MIRACLE!
But, of course, it’s not.
Do monstrous things happen? Sure. I make my living defending people who are charged with doing some of them — some of my clients even did what the prosecutors say. But day-to-day? You’re safe. I’m safe. The damn plane doesn’t blow up. Math isn’t terrorism. Fountain pens aren’t tools of mass destruction. Iraqis, even when they speak Arabic, mostly aren’t blowing up planes.
But, you see, fear.
Here’s an observation, supported by actual data no matter what they tell you on the radio or on the stump. Crime is down. Violent crime is down. You’re safer than you were. Yeah, shit happens. But not mostly. Mostly it’s cool.
The Supreme Court said that Florida’s death penalty law was unconstitutional because even when the jury recommends death, Florida law required a separate hearing for the judge to decide whether there was a basis to impose a death sentence.
The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough.
And so, horrified at the prospect of not being able to kill miscreants, the Florida legislature rewrote its death penalty law. Now, the jury would decide and the judge would simply impose. But not the whole jury. A death verdict requires, under the new law, the concurrence of only 10 of the 12 jurors, a supermajority but not unanimity.
Which, said the Honorable Milton Hirsch, Judge of the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, in a learned and eloquent opinion ain’t enough. Florida’s constitution, Judge Hirsch said, requires unanimity.
These hallowed and inseparable principles are preached with ease and practiced with difficulty. Capital murder is the most horrible of crimes. It evokes our rage and our desire for righteous vengeance. But our commitment to the principle that no Floridian shall be sentenced to the maximum penalty provided by law unless his guilt is made manifest beyond reasonable doubt to a unanimous jury of his peers is not to be measured in cases involving charges of dumping a dead cat by the side of a dirt road, Fla. Stat. § 823.041(2), or in cases involving charges of abandoning a used washing machine, Fla. Stat. § 823.09. It is to be measured in cases involving the most horrible of crimes. It is to be measured in cases that most evoke our rage and our desire for vengeance.
I am well aware that, subject to constitutional limitations – always subject to constitutional limitations – the legislature is free to enact its will as law. I am well aware, too, that, stripped of all historical and conceptual context, the notion that the assent of ten jurors rather than twelve should be sufficient to support a verdict and sentence seems inoffensive. Arithmetically the difference between twelve and ten is slight; so, for that matter, is the difference between twelve and nine, or twelve and eight. But the question before me is not a question of arithmetic. It is a question of constitutional law. It is a question of justice.
And, so, the new law, like the old but for different reasons, is unconstitutional.
Which would seem to mean, that for the present at least, Florida has no clear legal means of killing anyone.
Be very afraid? Nah.
Principle, not pandering. Truth, not paranoia.
Cause here’s the larger truth. If you see something, it’s almost certainly just fine.
And really, if you want to know what I toss in the trash, just ask.