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Alas, The People Have Spoken
Published on Saturday, November 6, 2004 by the Daily Camera
Alas, The People Have Spoken
by Christopher Brauchli
Oh promise me that some day you and I
Will take our love together to some sky. . . .
- C.W. Scott Oh, Promise Me

The American people have spoken and here is some of what they said. Lie to me all you want and if you do it often enough I'll not only believe you but I will be forever devoted to you. It's the classic story of the cocktail waitress and the millionaire's promise of marriage. All I care about is that you look sincere when you lie to me, as, for example, Dick Cheney and George Bush always do, and you'll have my undying devotion and enthusiastic support.

The American people have said give us a United States Supreme Court with more people like Clarence Thomas and Antonin Scalia. Mr. Bush promises to do just that. He has held them up as his ideals of what a Supreme Court Justice should be which is not hard to understand since they got him to where he was until the American people elected him on Tuesday. We've even had some names floated as possible nominees long before the election was held. One of the names was that of Edith Jones who now sits on the United States Court of Appeals for the Fifth Circuit.

Judge Jones has had more than one extraordinary opinion but one of her most remarkable opinions was written in the case of Calvin Jerold Burdine, who committed a robbery during the course of which "Dub" Wise was killed. Burdine was convicted of capital murder and sentenced to death by lethal injection. The lawyer who represented him slept through part of the trial. The trial-court judge concluded that someone represented by a sleeping lawyer was no better off than someone who was unrepresented.

A series of appeals followed, the last of which was in the Court of Appeals for the Fifth Circuit. Judge Jones wrote that a slumbering lawyer was no big deal. The mere fact that a lawyer slept through parts of the trial was not, said she and a colleague (and the judges took 15 pages of small type as downloaded from the Internet to say it) reason to set aside Mr. Burdine's conviction. According to their opinion: "we cannot determine whether Cannon slept during a 'critical stage' of Burdine's trial."

To prove their point that not all slumber is prejudicial, the two judges gave a number of examples of the kinds of testimony through which a defense lawyer could sleep without prejudicing the client's rights. Included among the examples were sleeping while unobjectionable evidence was being introduced or sleeping while evidence was being introduced whose introduction would not surprise the sleeping lawyer upon awakening. To avoid any suggestion that they approved of court room somnolence they said that they were not: "condoning sleeping by defense counsel during a capital murder trial (or any other trial, for that matter)." However, where, as in this case, the defendant could not demonstrate that the sleeping was prejudicial, the two judges were happy to let the death penalty work its magic.

The American people said let's drill for more oil and let's do it in the Arctic. They'll get their wish. In election night comments, one Republican senator said that in addition to putting more right-wing judges on all the courts (my words, his sentiments) we would soon begin drilling in the Arctic National Wildlife Refuge in Alaska.

In 2002, the Alaska Science Center of the United States Geological Survey released a study that said drilling in the Arctic National Wildlife Refuge in Alaska could harm caribou, snow geese, musk oxen and other wildlife. One of the consequences of drilling, said the report, would be reductions in the survival of caribou calves in June and a loss of weight in pregnant females and the weight of calves in late June. The study followed 12 years of research. The American people have said they don't care. There's oil in Alaska and we need to get it out. George Bush will help them do it.

The American people said they like tax cuts. Today only people who have more than $3 million pay any estate taxes. Voters feel sorry for people with more than $3 million and want to eliminate estate taxes. The reason for that is compassionate conservatism. Losing a loved one is always hard and it is even harder when the loss of the loved one is accompanied by a loss of a part of the loved one's fortune to the tax collector. Republicans can't grant eternal life. They can and will help people have eternal fortunes. These are just a few of the things for which the American public voted. Others can explain why.

Christopher Brauchli is a Boulder lawyer and and writes a weekly column for the Knight Ridder news service. He can be reached at

Copyright 2004, The Daily Camera


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