Thursday, December 18, 2014

Kicking the Hollywood Jackass

As Hamlet might say, Hollywood is “hoist with its own petard.”

You lovers of world history know that “petard” is French for a hat-shaped bomb used to blow open doors during sieges of castles in the 1500s, and the phrase “hoist with his own petard” was coined by Shakespeare in Hamlet, meaning, with apologies to The Bard, a person who has been blown up by his own bomb.

 What I am getting to is the decision by Sony Pictures to pull the movie The Interview from theaters for its Christmas release, and shelf the “comedy” altogether – not even releasing it on Netflix. This happened after “hackers” – the North Koreans – broke into Sony’s computers and stole tons of information, some of it embarrassing to Sony executives. The hackers then threatened to kill moviegoers who went to see the film on Christmas. You see the movie is about two bumblers who are asked by the CIA – who else? – to assassinate the Communist North’s pudgy Dictator Kim Jung-un, whose head full of Marx and Mao apparently explodes at film’s end. You know how Hollywood loves an uplifting finale.

Notwithstanding the imbecility of using the assassination of a country’s sitting leader as fodder for a movie comedy nor the criminality of hacking corporate computer systems, I’m not going to go into the subject of North Korea spitting and stomping on our First Amendment, which it has done without firing a nuke.

I am saying, however, that Hollywood has finally gotten its comeuppance.

For years Hollywood has cranked out tasteless “comedies” like Jackass and Jackass 2 and Bad Teacher, Bad Santa and Bad Grandpa (I better be careful their next movie might be Bad Blogger). Such films portray Americans as a nation of oddballs, idiots and airheads; idlers, slobs and nincompoops; and criminals, deviants and ruthless nutcases.

Tell me now, are you any of those?

To put it mildly, for the want of a buck Hollywood has brought the worst of You Tube into theaters. Oh, and television has jumped on the buffoonery farm wagon, squirting out low-budget reality shows like cows do pies, trying to make stars out of weirdoes, creeps, felons, drug-pushers and scripted screaming “bitches.”

How has all this “comedy” and “reality” helped form world opinion of America?

Hollywood answers that question too by pumping out films that portray us as universally despised by the “civilized world,” civilized meaning any country that isn’t America.

In the past the real teachers and grandpas lampooned by Hollywood had no influence over how they were cast. But now enter one of the world’s most oppressive regimes and its dictator (Dennis Rodman’s pal) and his army of cyber terrorists. Yes, Kim Jung-un apparently has something to say about Hollywood’s treatment of him. And guess what?

Hollywood just got jack-assed. Or as Hamlet would say, “hoist on his own petard.”

And this bomb in the cyber war has been heard all around the world.

Friday, December 5, 2014

Time to Thank and Excuse the Grand Jury?

This is the first time I have ever agreed with race-baiter Al Sharpton. He says we should eliminate the grand jury system in America.

I agree with him up to a point, but not for the reasons he states.

Predicable Al wants to do away with grand juries because he believes they always let white cops off for killing black people. Without a nuanced thought in his head, he lumps together and cites the cases of Michael Brown in Ferguson, Missouri and Eric Garner in New York City, deaths similar in one respect: a black suspect was killed by a white cop.

Abolishing the grand jury would be a radical leap, given its rich history in English and American law.

The grand jury bears the name because it generally has more members than a 12-person trial jury, sometimes up to 23 lay members. Such juries of folks were first used in the 12th century in Henry II’s England, wherein a body of men was empaneled from time to time to report on criminal activity in the shire. Thereafter ingrained in common law the grand jury system followed colonists to America, where, ever since, its legal sanctity and secrecy have been stingily protected by the United States Supreme Court. (Mr. Sharpton probably thinks President Obama can eliminate grand juries with a stroke of his pen.)

I said I agreed with Al Sharpton up to a point. That’s because grand juries shouldn’t be abolished. They should be curtailed. When it comes to criminal matters they should only investigate government corruption. The Founding Fathers would smile on that. Why should all other criminal matters be stripped from the grand jury?

Simply put, modern grand juries let prosecutors skate in politically charged cases, such as when white cops kill unarmed black suspects. That’s what happened in Ferguson and in New York, in the Brown and Garner cases. St. Louis County Prosecuting Attorney Robert McCulloch and New York District Attorney Daniel Donovan shirked their public responsibility by asking grand juries to decide these cases. They knew the cases were politically charged, with perceived racial overtones. In each case the prosecutor could have taken action on his own, exercised his prosecutorial discretion and filed criminal charges against the white policeman or, alternatively, explained publicly why he decided not to.

But, neither McCulloch nor Donovan did either. Instead, each ran to a grand jury for political cover.

The modern grand jury system has become an expedient way for elected district attorneys to pass the political heat of controversial cases to plain folks who sit on grand juries. Once the jury makes its decision, especially if they exonerate a white cop, the prosecutor holds up his clean palms in “hands up, don’t shoot” fashion and proclaims, “It’s the grand jury’s decision, not mine.” You see, such disclaimers make running for re-election smoother, and after all, it’s all about being re-elected, isn’t it? Running for grand jury cover simply uncovered McCulloch’s and Donovan’s cowardice.

Listen, we pay top prosecutors hundreds of thousands of dollars a year to do one of two things: either charge people with crimes or tell us why not. Prosecuting Attorney McCulloch and District Attorney Donovan should have had the cojones to say why there was insufficient cause (or evidence) to charge the white officers with crimes. Obviously they suspected it was insufficient – that’s why they took cover in the grand jury in the first place, to deflect political repercussions.

Here is what bugs me the most about these prosecutorial wimps. By running to the grand jury in controversial cases district attorneys foist the political heat (and danger) off on regular men and women of all races, untrained in law, who are paid a per-diem pittance for their jury service and, who, once the jury’s decision is made public, live in fear that some violent dirt bag who loots and torches businesses and calls it First Amendment protest might learn their identity and seek them out for revenge. These pansy prosecutors should be ashamed.

There have been calls for “special prosecutors” to handle police-involved deaths, especially when white cops kill blacks. Mr. Sharpton wants the feds to take all such cases. The rap here is that regular, elected district attorneys are too cozy with cops to indict them. That’s hogwash. Voters will quickly send such puppet prosecutors to the unemployment line.

The real answer is to limit grand juries to investigations of criminal wrongdoing by bureaucrats, as well as their longstanding civil watchdog functions over government. Curtailing them will end prosecutor misuse of grand juries in most police department cases. That way district attorneys will be forced to earn their pay checks by exercising prosecutorial discretion even in criminal cases they find “too hot to handle.”
Find books by R.D. Byron-Smith at all online booksellers.

Friday, July 18, 2014

'The Waiting Is The Hardest Part'*

I never thought I’d ever write this blog.

Because even before I sat down for an interview in 1978 over apple pie and coffee with the father of California’s death penalty law, Sen. John V. Briggs – he had a beer with his pie – I have been an advocate of capital punishment.

My support grew after covering two dozen death penalty murder trials in California courts as a newspaper reporter in the 1980s. Having seen and heard the wonton, inhumane cruelty of these murderers I never once disagreed with a death verdict, and have supported the deterrent aspects of the death sentence, as well as its retribution.

Today, I have changed my mind on the state’s death law.

Why? Because today, I read the opinion by a federal judge who ruled that California’s death penalty law is unconstitutional.

Let me explain.

In 1995 Ernest Dewayne Jones was convicted of raping his girlfriend’s mother and stabbing her to death. He was sentenced to death and the California Supreme Court affirmed his sentence. All death sentences are appealed to federal court, as was this case. In his ruling the judge voided the sentence and declared the state’s death penalty unconstitutional.

Now I don’t buy U.S. District Court Judge Cormac J. Carney’s legal reasoning that the state’s death penalty is cruel and unusual punishment under the Eight Amendment because it takes so much time – 25 years – to carry out the sentence and execute the killer.

In fact, I found myself quietly bemused after reading this in the 29-page opinion: “On April 7, 1995, petitioner was condemned to death by the State of California. Nearly two decades later, Mr. Jones remains on California’s Death Row, awaiting his execution, but with complete uncertainty as to when, or even whether, it will ever come.”

Reading, I thought, yeah, sure, this guy is upset that he has had to wait, alive, 19 years on death row. Which begs the question: you mean he would have been happier if they had executed him five years ago?

Obviously a decision by a judge so far down in the federal court food chain isn’t precedent, which means it has minimal impact outside California. Still, it pretty much puts the state’s death law in limbo. And for you lovers of irony out there, this ruling will cause more delays of executions.
Make no mistake, the judge’s reasoning in this case will prompt similar cases in other states, which have long wait times between sentence and execution.

That’s why California must appeal it.

Judge Carney laid out a convincing case as to why California’s death penalty system is absolutely “dysfunctional.” That has been known for years and a special commission in 2008 said as much.

As the judge says it takes years to appoint an appeals attorney in death penalty cases and several more for the state Supreme Court, required under law to review every sentence, to rule. Then it takes several more years for the case to wind through the full legal system, including federal courts.

In particular, the judge points out that while some killers get appellate attorneys a few years after conviction, others wait many, many years. It is why one killer might wait 15 years to be executed and another 30 years. In fact, disparate wait times is at the heart of the decision.

“The Court has determined that systemic delay caused by the dysfunctional state review process has resulted in the arbitrary selection of a small handful of individuals for execution, and has therefore rendered Mr. Jones’s death sentence unconstitutional,” Judge Carney wrote.

That is where the judge’s reasoning falls flat.

He sets aside accepted precedent that states “appellate delay in a capital case is not cruel and unusual punishment” because it demonstrates the state is safeguarding the killer’s rights by giving him as much time as he needs for a complete appeal.

Then the activist judge goes off on his own. He essentially says the system is responsible for delaying executions in California, making the system itself unlawful. He underpins his theory with the argument that these long waits diminish if not obliterate capital punishment’s well-established goals of retribution and deterrence.

“In California, the execution of a death sentence is so infrequent, and the delays preceding it so extraordinary, that the death penalty is deprived of any deterrent or retributive effect it might once had,” the judge wrote in his opinion. “Such an outcome is antithetical to any civilized notion of just punishment.”

Might I remind the judge that California’s Penal Code Section 190.1, while providing procedural detail on the “why” and “how” of capital punishment, it doesn’t state “when” an execution shall take place. In other words, the law recognizes the effects of deterrence and retribution happen when the killer is actually executed.

Once put to death, retribution is clear.

As for deterrence, every execution is covered by the media.

Still, the judge wrote: “Allowing this system of the death penalty to continue to threaten Mr. Jones with the slight possibility of death, almost a generation after he was first sentenced, violates the Eight Amendment’s prohibition against cruel and unusual punishment.,”

I dare him to tell an opponent of capital punishment that swifter executions would be a good thing. Although, according to my reading of the opinion, quicker executions is precisely what is called for, and would win approval of this judge, a Harvard Law grad appointed by George W. Bush.

There have been 13 executions in California since 1978, and today there are 748 murderers on death row.

Along the road since 1978 death penalty opponents have thrown up legal road blocks, including the latest – the cocktail of execution drugs is painful and, therefore, cruel and unusual punishment; and that the state failed to follow its own procedures in approving the cocktail.

Successful legal maneuvering by anti-death penalty forces has helped choke off executions in California.

There has been one execution since 2006.

For this state of affairs Judge Carney is careful not to blame his federal courts. He forgets the federal appeals court in San Francisco, likely to hear this case, rarely sees a capital case it doesn’t disagree with. The judge also ignores legal precedents, many by federal courts, which have piled up over the years, lengthening death penalty appeals.

However, he doesn’t hesitate to blame the state penal system. He even blames taxpayers themselves, saying the death penalty system is “underfunded,” making it unworkable.

From a practical standpoint, what was left out of the judge’s thought process is the varied nature of death penalty prosecutions.

For instance, I sat through a death penalty trial in which evidence was circumstantial and based on complex science, including spectrum analysis of human tissue – at the time disputed among scientists. I covered another case in which a man murdered using a hammer.

What I am saying is that death penalty cases involving complex legal issues and unfamiliar science necessarily take longer on appeal than simple cases like the hammer murder. This means that yes, the guy convicted of the hammer murder might be executed before the guy convicted on scientific evidence.

So what?

That might seem arbitrary to Judge Carney but I see it as the very nature of the legal process.

In addition, he ignores that the system grapples with the unpredictable, such as a “retroactive” decision that tosses a monkey wrench into every death penalty under appeal.

The judge is certainly right in one respect. He contends the state no longer has a death penalty, which he writes, is really “life in prison, with the remote possibility of death.” (None of the killers sentenced to death in trials I covered in the 1980s has been executed in California.)

Keep in mind these death row dirt bags don’t pay their own legal fees. We do. From 1978 to 2012, California spent $1.6 billion on death penalty appeals alone. It has cost another $2 billion to try, convict and sentence these murderers.

It is estimated that if there was no death penalty, after-conviction appeals in all murder cases would cost the state only $12 million a year.

While I’ve found fault with much of the judge’s reasoning, I think it is time for Californians to be honest.

I agree with the judge, in effect, the state no longer has a death penalty. Oh, sure, district attorneys can show they’re tough on crime by asking for death for heinous killers, but they know it really amounts to life in prison, without possibility of parole. (Since 1978, 94 death row prisoners died of causes other than execution.)

It is past time to reform California’s death penalty law.

To start with, death sentences should be appealed to the state’s nimble appellate courts, not directly to the clogged Supreme Court.

And if the people of California really want capital punishment, they should approve enough money to make it work, for appeals to be completed so executions can commence.

Currently it costs $137 million a year to operate the death penalty system. To make the system “constitutional” it is estimated that it will cost a total of $233 million a year. If we are unwilling to fork over the cash to fix it, the death penalty should be scrapped, making life in prison without parole the sentence for special circumstance murder.

That’s not easy for me to say. I agree with Nancy Reagan, who once famously said: “I favor the death penalty. It saves lives.”

I know what you’re thinking.

We get rid of capital punishment and we will pay the bill for incarcerating these dirt bags for the rest of their natural lives. That is true. But, consider this: it costs $90,000 a year more to house an inmate on death row than in the general prison population.

We’ve been paying that exorbitant amount for 30 years for some of them as they appealed their sentences, anyway.

If we want capital punishment, let’s pay for a system that works, especially for the killers Judge Carney seems to have in mind – death row inmates who don’t like waiting.

*With apologies; headline from "The Waiting" by Tom Petty & The Heartbreakers.

You can obtain R.D. Byron-Smith’s books at Amazon, Barnes & Noble and other Web booksellers.

Wednesday, July 2, 2014

Book Review: Lightweights In A Heavyweight Political Fight

 Who wears the pants in the White House?

That’s the question that comes to mind in reading Edward Klein’s “Blood Feud, The Clintons vs. The Obamas” (Regency Publishing, 2014).

It’s not President Obama.

That’s the inescapable conclusion after reading details of the longstanding political war between the nation’s most powerful political couples.

It is Klein’s third book about the Clintons and Obamas, which includes his No. 1 New York Times bestseller, The Amateur.

Let me warn you. If you distrust “unnamed” sources don’t buy it. It’s the work product of purported inside information from people who Klein doesn’t name. But, if he is making this stuff up he ought to write fiction – it’s that good.

Because few sources are named, it is fun guessing who said what. For instance, upon reading a long, positive passage about Hillary I stopped with an epiphany: that “sounds” like Clinton frontman James Carville’s speech pattern.

Was it? Haven’t the foggiest.

Overall it’s an entertaining, quick-read at 281 pages, and chock-full of titillating tidbits. For consideration: Michelle and Barack sleep in separate White House bedrooms, and Bill and Hillary haven’t had sex in two decades.

(Somehow I wasn’t surprised by either nugget.)

What isn’t funny about this book, and I don’t think this was its intention, is the light it shines on why the Obama presidency is failing.

As Hillary colorfully tells her Wellesley College girlfriends: “Obama has turned into a joke . . . no hand on the fucking tiller.”

So who does run the White House, and by extension, all of us?

In many ways the Obama presidency is a Cinderella story, which means it also has an evil stepmother. Her name is Valerie Jarrett, Obama patron and close advisor, who indeed seems to be a mother figure for him.

Jarrett is Michelle’s BFF and a veteran of hardboiled Chicago politics. Years ago Jarrett plucked the wet-behind-the-ears, community organizer from obscurity. Obama believes she is responsible for his election as president.

Problem is, he also thinks he cannot be president without her. She is his go-to-gal on topics both foreign and domestic. For good measure (in case he gets a call in the middle of night about a terrorist attack?), she has her own rooms in the Residence. But, Ms. Jarrett doesn’t just wear pajamas in the Lincoln Bedroom. She also wears the pants in the White House.

The book clearly illustrates that the president doesn’t sneeze without Jarrett’s permission. (The only thing he doesn’t ask permission for is rudely jumping up from the dining table to go have a smoke, while guests twirl their thumbs and wait for the sorbet. Or he plays with his smart phone under the table while a guest talks to him, which happened to Bill Clinton).

Rarely is there a presidential decision lacking Jarrett’s nod, if not wink.

And, wouldn’t you know it, she’s a control-freak who keeps people who disagree with Obama away. When people do sneak in they’re his political crew, which gives the impression that every decision is for political one-upmanship.

OK. I know it is na├»ve to think otherwise. But, when are we going to have a president who does things because they’re right for America, not simply to screw the other guy, or to expand his party’s membership?

Although the book doesn’t explore the IRS scandal, once you’ve read of the political animals in this White House, you’ll have no problem concluding that, yes, this group could have sicced the agency on the Tea Party.

Obama comes across as henpecked and feckless, a man with a limited attention span who prefers detective novels to serious biography. (I haven’t been so concerned about the knowledge base of a president since I heard Dwight Eisenhower, while president, admit he hadn’t read a book in two years. And I write detective novels!)

Attention isn’t this president’s only deficit.

According to the book the Obamas lack the good graces (or sense) to thank people for helping them. Not even Oprah Winfrey, who played a huge role in his election in 2008, got a thank you card. Miffed, she stayed away in his re-election, and admits she likes the Clintons better.

Say thanks? For what? Apparently they view his two terms as a new kind of “entitlement.”

I know the word “feckless” to describe President Obama seems harsh. Here is an excerpt from the book to show why it’s right on:

“Consultation is not in the DNA of the Obama administration,” Vernon Jordan, a longtime Democratic Party wise man, told the author of this book. “Some time ago, while Obama was on vacation in Martha’s Vineyard, he invited me to join a foursome and play a round of golf at the Vineyard Golf Club in Edgartown. I was paired with the president’s assistant, Marvin Nicholson, and the president played with (Michael) Bloomberg, who at the time was being considered as a possible replacement for (Timothy) Geithner as secretary of the Treasury. When the round of golf was over, the president immediately left. And Bloomberg turned to me and said, ‘I played four hours of golf with the president and he didn’t ask me a goddamn thing.’”


How about something along the lines of:

Why did my economic stimulus package fail?

Should we cut corporate taxes?

What’s your position on a strong dollar?

What’s your take on the Chinese keeping the yuan undervalued?

Should Sarbanes-Oxley be repealed?

Are you a Keynesian?

At the very least, Obama should have wondered whether Bloomberg had passed economics class in high school.

But, no, this president asked nothing of the man who was being considered as his next Treasury secretary, a key government job in a poor economy.

Feckless. Even cipherish.

In the book Obama is pushed around by Jarrett and Michelle so much that you want to stop reading, grab him by the scruff of the collar and shake him, yelling, “man-up, man!”

No doubt Russia’s Vladimir Putin sees the same thing.

Like Jimmy Carter, Obama is simply a man in over his head. As the author points out the most employees Obama ever had in his limited pre-presidential career was 13. No wonder he cannot run the monstrous bureaucracy around him.

The book hints that Obama suffers the delusion of being the smartest man in the room. Oh? Is that why his staff panics when his teleprompter fails and he goes off script?

His infamous Syrian “red line” comment on chemical weapons was extemporaneous, and afterward, Jarrett scolded him. She closed doors to the Oval Office and blasted him.

“A red line!” the books quotes her. “Where did that come from?”

Michelle Obama doesn’t fare much better than her hapless husband.

In the book she comes across as a jealous, well, it rhymes with witch. Tellingly the book claims she barges into her husband’s closed-door meetings with women to make sure Monica Lewinsky hasn’t slinked into the Oval Office.

Other bad players include a host of White House personalities who handle things like foreign policy without knowing anything about foreign policy, which explains why Obama’s foreign policy is screwed up.

The book’s main hero is Bill Clinton, whose singular goal in life is to elect his wife president in 2016 and recapture the White House. He is truly the Obama-despiser-in-chief.

But, the book claims he has good reason. Clinton believes he made a political deal with Obama in 2012, before the election when Obama’s own political staff thought he couldn’t win re-election. Clinton agreed to work for Obama if, in turn, Obama supported Hillary in 2016.

Clinton believes that his speech at the Democratic Convention won Obama his second term. Afterward, when Obama welched on the bargain, Clinton vowed revenge. The book tells you all about Obama getting his comeuppance.

Believe it or not, this book also is about love.

Bill Clinton might dally with Hollywood lovelies (the book says Hillary assumes he has an active sex life). Yet the book makes it abundantly clear that he deeply loves her. This is poignantly illustrated when Bill learns Hillary has fainted at the State Departments and takes charge of her care.

And, the chapter on Bill, who has a bad heart condition, outlining plans for his own funeral, saying it will win Hillary at least “two million” votes, is worth the price of the book, alone, and would be hilarious if not so dark and serious.

I don’t blame you for saying: OMG! Another book about bickering Washington politicos. Who gives a crap?

Normally, I’d agree and tell you not to waste your money.

But, this book about bickering politicos also has revelations about Hillary’s blood-clot and heart conditions, certainly to be an issue if she runs in 2016. It also tantalizes with such information as what was going on at our Benghazi consulate before the attack – a CIA gun-running operation to Syrian rebels.

This book would be a good read for Fourth of July at the beach. However, be warned: it won’t put you in a mood to celebrate with fireworks.

Friday, June 27, 2014

Fourth Amendment Protects Your Cell Phone

“These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” – Chief Justice Roberts.

1789: introduced by James Madison: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

2014: Madison’s Fourth Amendment to the Constitution has been brought into the digital age by the United States Supreme Court.

Stemming from two separate criminal cases, the nation’s highest court unanimously ruled that police must almost always get a search warrant to look at your cell phone data after your arrest.

I say “almost always” because the High Court, as it often does, gave police an exception. For instance, if they believe your cell phone will lead to another suspect getting ready to detonate a bomb, they can search it without a warrant; or, if searching a cell phone will save a kidnapped child, it’s all right as well.

But, lacking such exigent circumstances, police must obtain a search warrant based on probable cause to look at smart phone information. And, there’s obviously plenty of it.

In fact it is this vast storage capacity of a smart phone that is at the heart of why Supreme Court Chief Justice John Roberts wrote the opinion, requiring a warrant, and why all of his colleagues agreed – no easy achievement in this era of seriously split 5-4 decisions.

The Fourth Amendment guarantees that without a search warrant cops cannot waltz into your home and rummage room to room for evidence of a crime. As Justice Roberts reasons it, accessing the vast amount of information on your iPhone, such as photos, videos, private e-mails and Web downloads – even a complete digital record of your geographical movement and who you have talked to in the past 24 hours – is analogous to searching your whole house.

He goes even further: “A cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form may sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form.”

In a salient paragraph, the Justice Roberts provides solid “examples” of why smart phone information is protected: “Mobile applications software on a cell phone, or ‘apps’ offer a range of tools for managing detailed information about all aspects of a person’s life. There are apps for Democratic Party news and Republican Party news; apps for alcohol, drug and gambling addictions; apps for sharing prayer requests; apps for tracking pregnancy symptoms; apps for planning your budget; apps for every conceivable hobby or pastime; apps for improving your romantic life. There are popular apps for buying and selling just about anything, and the records of such transactions may be accessible on the phone indefinitely. There are over a million apps available in each of the two major app stores; the phrase ‘there’s an app for that’ is now part of the popular lexicon. The average smart phone user has installed 33 apps, which together can form a revealing montage of the user’s life.”

For historical perspective the opinion returns to a time when there weren’t any ‘apps.’ It notes that in colonial times “writs of assistance” allowing British officers to conduct surprise home searches was a “driving force behind the Revolution itself.”

Wrote Justice Roberts: “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’ The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protections for which the Founders fought.”

I think the ruling is spot on.

It’s accepted that the Fourth Amendment allows a police officer to search a person he arrests for weapons or to prevent destruction of evidence. For instance, a cop finding a pack of cigarettes on a suspect can open it to make sure it doesn’t contain a razor blade. Today, an officer is more likely to find a cell phone than a pack of smokes in the guy’s pocket. Today 90 percent of American adults who own a smart phone keep on their person a digital record of nearly every aspect of their lives. That is why this updating of the Fourth Amendment is important, timely and extremely relevant.

Now don’t think this historic decision means police are barred from getting incriminating evidence from your cell phone if you’re arrested. As the court’s opinion makes clear: “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple – get a warrant.”

The cops can still arrest you, impound your pretty smart phone, protect it from anyone trying to wirelessly erase information on it by putting it in a tinfoil bag, and then ask a judge for a search warrant based on probable cause. Police can get a search warrant in 15 minutes by e-mailing a judge – perhaps even before they get you to the jailhouse for booking.

And, if any of you are wondering. . . .

It will be a nutty judge indeed who doesn’t think this ruling also applies to iPads, notebooks and laptops, really any kind of portable information storage device you have with you when arrested.

I have one misgiving about this precedent-setting ruling.

In one of the criminal cases that led to this decision, a gangbanger was convicted of attempted murder in San Diego largely because of information police found in a warrantless search of the cell phone, which was taken from his pocket during the arrest. That case now has to be litigated all over, very likely without key evidence from the cell phone. It is possible this thug, who got a 15-year prison term, will go free or get a reduced sentence because of this ruling.

R.D. Byron-Smith is published by Pilar Publishing of California. His books include, Dinner With A Killer, Epitaphs, Image of Evil, Back In Saigon, The Heart Never Sleeps, Murder Under London Bridge, The Collector, Killing Socrates and 7 Stories of Flash Fiction. His books are available at Web booksellers, including Amazon and Barnes & Noble.

Friday, June 13, 2014

A Father's Story

In the 1970s fathers were staying in the hospital delivery room and “helping” their wives through the ordeal of natural childbirth. Our first child, a girl, was brought into the world using this Lamaze method, and, for our second child, my wife decided to add a little twist to Lamaze.

It was kind of like Lamaze meets the washtub.

The idea was to have me, the Dad, give the newborn – and I mean minutes old – his first warm, soothing bath. We took a refresher class in the Lamaze method, which included how to bath a newborn. Man, I was ready – tub, water and washrag.

Then came the day.

I’m not saying the old obstetrician was a medical curmudgeon. But, when he bluntly sighed a grunt upon seeing me walk into the room, it was strongly hinted at.

Getting ready, he barked an explicit order. “Don’t touch anything.” His words were stern, and his dark eyes above his surgical mask scoped me like a loaded Luger. “Anything,” he repeated for emphasis.

“Don’t worry, I won’t,” I assured him, nodding and mumbling through my surgical mask, which steamed up my eyeglasses. He glowered back as I spoke, doubting the veracity of my every word.

I felt clumsy in the pale green, ill-fitting and wrinkled surgical gown draped loosely over my Levis and T-shirt. Unlike the beloved mother, the skilled OB nurse and the old curmudgeon physician, I blended into the sanctity of the delivery room like a centipede at a snake convention.

It was almost time. The nurse helped my wife into the birthing apparatus, and like a champ, she was exhaling rapid breaths like she’d been taught in Lamaze classes. Per delivery room protocol, the nurse spread a gossamer-thin surgical cloth over my wife. I saw right away that it wasn’t done perfectly, which bugged me. A corner of the cloth hung haphazardly, raggedy-like, exposing some of my wife’s body.

No. The damned cloth just wasn’t right. At home when a floor rug is askew, I straighten it. So . . . I reached across to tidy-up the surgical cloth.

. . . Wham.

“Ow!” I yelped, recoiling my hand.

The doctor had slapped it with a steel instrument. I don’t know if it amounted to medical malpractice, but it sure in blazes hurt. The spot turned red. I felt like a kid in Catholic school who’s just had his knuckles ruler-whapped by a nun.

“I told you not to touch anything,” the doctor scowled, holding the surgical tool like a weapon, ready to strike another blow.

I backed away, rubbing my hand. “I was just trying . . .”

“. . . To touch something,” he finished my lame sentence.

With me in full retreat, he turned earnestly to the task at hand.

Remember I told you about the “twist” my wife had added to the Lamaze method? I was assigned to give the newborn his first bath, washing off birth stuff. Our Lamaze teacher had told us that this bath in warm water for five minutes helped form an everlasting “bond” between father and child. (Truthfully I figured it was to give Dad something to do. Or, maybe now I realize, so he wouldn’t touch anything before the birth.)

Well, our son arrived and it was time for me to shine.

The nurse brought a shallow stainless basin of water, and then handed the little naked guy to me. His eyes were closed and he wasn’t moving much. With my hands firmly under him, I dipped his backside into the water, like I was taught.

“My, God,” I thought. “It’s cold.”

He had come on a morning in December. It can get cold overnight in the Mojave Desert where he was born. Maybe the nurse ran the warm water too early. Maybe I was mad about getting slapped and my body temperature was still simmering, making the water feel cold to the touch.

Whatever, the water wasn’t even lukewarm!

It took only seconds for the little man to confirm my fear, and, for him to realize he wasn’t in the warmth of the womb any longer.

I watched him writhe like a twitching tadpole in the water, flailing his arms all around in protest.

“He’s shivering,” I thought.

Now his legs wriggled too in angry splashes.

“He’s turning blue,” I thought, squinting at him.

His color went from white with red blotches to white with gray blotches.

“I’m hurting him,” I thought, thinking back of ice fishing as a teen when I had fallen through the ice of Lake Huron. It took my testicles three days to come out of hiding.

In a panic I yanked him like a perch on a pole out of what, by then, I was convinced was icy water.

I frantically handed him to the OB nurse. “He’s freezing,” I exhaled, emotionally at her.

She quickly wrapped him in a blanket, back into what I imagine he thought was the kind warmth of his mother again.


All I know is that his first encounter with Dad wasn’t a warm and fuzzy affair.

And I hoped that on some future Father’s Day he would forgive me.

©2014 R.D. Byron-Smith & Pilar Publishing.

 R.D. Byron-Smith is published by Pilar Publishing of California. His books include, Dinner With A Killer, Epitaphs, Image of Evil, Back In Saigon, The Heart Never Sleeps, Murder Under London Bridge, The Collector, Killing Socrates and 7 Stories of Flash Fiction. His books are available at Web booksellers, including Amazon and Barnes & Noble.


Wednesday, June 11, 2014

VA Declares War On Veterans

Fans of television’s NCIS always expect an investigator to turn to another and proclaim, “So that’s why he killed him.”

Motive. It’s the stuff of every criminal case, and answers the question of why a person commits a crime, whether murder or fraud.

At first I was at a loss in figuring out why officials at Veterans Affairs hospitals falsified records to hide sinfully long “wait times” for veterans to see doctors. Honestly, I just couldn’t get my head around the suggestion that employees desired to harm veterans.

It just didn’t make sense.

Now, everything does, and boy was I in La-La Land.

They did it for the money, stupid. And what’s been going on at the VA amounts to declaring war on our veterans who need medical care.

In recent years Veterans health employees got $109 million in bonuses after meeting “performance standards.” At one VA facility, where lists were manipulated, the top guy got $9,000 in bonuses.

Simply put, reporting actual wait times jeopardized annual bonuses, which VA employees had become to expect. In effect, these “performance standards” had built-in incentives to lie and cheat.

And that’s precisely what employees did. VA centers nationwide misrepresented patient scheduling for 57,000 ex-military. An additional 64,000 vets weren’t even on waiting lists for doctor appointments they requested. At 731 VA facilities schedulers were pressured to “utilize unofficial lists or engage in inappropriate practices in order to make wait times appear more favorable.”

Yeah, “appear more favorable” so they could get their bonuses.

The tragic result of this fraud? While they waited to see a doctor, military veterans died.

Recently Congress suspended bonuses at VA health facilities. They should also demand that bonuses be repaid immediately, until it is shown they were free of fraud. Afterwards, lawmakers should eliminate such bonuses altogether.

Congress has sought prosecutions from the Attorney General.

There’s enough crime here to keep prosecutors busy for years: manipulating public records for financial gain; theft; embezzlement; wire fraud; and I think creative prosecutors might consider manslaughter charges in egregious cases.

Looking forward you can expect scores of plea deals as low-level, pencil-pushing employees point up at VA bosses.

Also expect an abundance of litigation on the law’s civil side. Families of deceased veterans should sue for wrongful death after loved ones died while waiting to see a physician.

These VA types might think they have immunity. What I hate about government immunity is it protects officials when they screw us. The thing I like about it is it doesn’t apply when they use fraud.

Judges take into account the number of victims when sentencing criminals. In this scandal victims include veterans and families, and, indeed, all tax-paying Americans that paid for these bogus bonuses.

Which brings us back to motive. The crooked VA employees who shafted veterans to line their own pockets should be fired and in some cases serve jail time.

Tuesday, June 3, 2014

And In This Corner . . . The Judge

After covering courthouses for 40 years I understand why the judge wanted to pound the crap out of the public defender.

They used to piss me off, too.

But, when a Florida judge challenged an attorney to a brawl in court and then allegedly punched him, he gave a new literal meaning to “strong arm of the law.”

Judge John Murphy should be charged with battery by Brevard County prosecutors. If not, and the judge walks scot-free, it’s a clear message that criminals have it correct: the law has a double-standard.

I can’t tell you how many times I have seen criminals get smart-assy in court with a judge, and as a result, are clobbered by bailiffs.

Surprisingly the U.S. constitution was the initial igniter of the physical altercation in this instance. Under our constitution criminals have a guaranteed right to a speedy trial. But, that right is commonly waived in today’s over-clogged courts.

When Judge Murphy asked whether his client was willing to waive a speedy trial, public defender Andrew Weinstock refused.

“You know I’m the public defender,” he said, in comments caught on tape. “I have the right to be here and I have a right to stand and represent my client.”

Judges usually have their way in moving their court-appearance calendars at a fast pace (they don’t want to be late for lunch). Once the public defender threatened to upset the flow, it went downhill.

“If I had a rock, I would throw it at you right now,” Judge Murphy barked. “Stop pissing me off. Just sit down.”

Words followed and moments later he challenged the public defender to some old-fashioned fisticuffs. “If you want to fight, let’s go out back and I’ll just beat your ass,” said the judge.

(Sounds like something I once heard in a smoky barroom.)

The public defender left the courtroom and the judge exited the bench.

In a hallway, the judge allegedly “grabbed him about the collar” and “began punching him in the head,” Weinstock’s boss said later.

(I don’t know whether he gave him ‘three strikes’ or not.)

And I cannot say whether this was an “old grudge” or just too much caffeine. That aside, though, it has much in common with the violent gangbangers I wrote about over the years. Look at them cross-eyed, and they’d bash in your head.

I can almost hear the criminals who witnessed this incredible scene in the courtroom, saying of Judge Murphy, “Cool, he’s just like me. I would’a pounded the f**ker too for disrespecting me.”

Folks, there has got to be a brighter and wider line between them and us, and especially a very clear demarcation between criminal and judge.

By all accounts this was completely out of character for the jurist. Judge Murphy, who’s been on the 18th Judicial Circuit Court since 2007, is an Afghanistan veteran (2003-04) and retired Army Reserve colonel who has won the Bronze Star.

Whipping the public defender’s ass wasn’t in doubt. But, come on, colonel, this isn’t Afghanistan. Gong-ho judges must show judicial temperament and judgment. Yours was buck-private poor.

Hey, I can empathize. He goes to Afghanistan and puts his life on the line in a war zone for us and comes home and runs into jerks like public defender Weinstock every day in court.

You can almost hear him grumbling, “I fought for this ass?”

It’d piss me off too.

But, yes, judge, you fought for jerks like him, and for me.

This little episode should demonstrate that John Murphy remains more colonel than judge. Judges leaven justice with a firm, reasoned and steady hand. They don’t pound it into heads.

With that in mind it’s time for Judge Murphy to take his double-dip, and retire from the bench.

War hero aside, prosecutors should charge him with battery. Obviously no jail time. His life wouldn’t be worth a plug-nickel behind bars. But, terms of probation must include anger management.

At the very least – and this is no punishment at all – the state’s Supreme Court should discipline him.

As for the public defender? He should have a personality transplant. . . . And practice Ali’s rope-a-dope.

See R.D. Byron-Smith's Author's Page at Amazon.

Monday, May 26, 2014

Memorial Day: Remembering Ruggles

It was an operation against the North Vietnamese Army near the demilitarized zone when I was with Company C, 1st Battalion, 9th Marines. We’d humped to a clearing near a large clump of trees and the lieutenant sent out two patrols to check for gooks.

Our squad approached the trees and I was at point.

Now I smelled it, and motioned everybody down. “I smell pot,” I whispered to the squad leader.

“Pot?” he answered incredulously, motioning us forward.

We pushed on and hell erupted.

They fired from behind trees and instantly Ruggles flopped backwards on the ground, his jaw ripped off by an AK-47 round he had sucked right into his mouth.

My right calf suddenly burned, and I opened up my freshly oiled M-16 on the NVA who killed Ruggles. Charging at me from behind a tree, my furious quiver of fire caught him dead in the chest and guts. He reeled back, dropping.

Rounds whizzed by like I was in an Audie Murphy movie and Marines were now laying down enough fire to take Iwo Jima all over again. Smoke was thick, and all I could hear was popping AK’s and zinging Sixteens.

From behind the same tree another NVA charged at me, jumping over his comrade’s body and firing, wildly. I pumped my clip into him and he fell awkwardly forward, like he tripped. As I slapped in a new cartridge clip he sprang and rushed me. I hit him with three rounds, pointblank. The wicked fusillade mangled his young face. He fell, his head thumped on my boot.

Hearing the crack of branches above me, I shot my head up. Flailing his arms like disjointed windmills a gook was falling towards me. I rolled into a crouch and shot. He hit the ground, stumbling, and leapt at me with a machete. He swung it viciously, missing my cheek by centimeters, and I smelled the harsh odor of opium on his breath.

I violently pushed him away, and now my hands felt wet with blood. I realized I had shot him in the chest. I smashed my empty M-16 against his face, and he tripped backwards, dropping the knife. But the precious rifle slipped and flew from my grasp like a broken baseball bat. He wobbled to his feet, as I grabbed my e-tool, a small pick for foxhole digging. Raising it like a scimitar, I crashed it as hard as I could into his skull. It embedded deeply with a whack. The NVA fell, his body writhing, and for a moment the pick ax jittered in his head.

Now the other squad of Marines, answering the shots, unloaded on three NVA that had jumped from the trees behind me. The clash lasting less than a two minutes was over. Only then did I noticed I had been hit in the leg.

Before us lay eight NVA, and my buddy Ruggles.

From “The Detective’s Vice,” ©2012 R.D. Byron-Smith & Pilar Publishing. Available at Barnes & Noble, iBooks and other booksellers. See his Author’s Page at Amazon.

Wednesday, May 21, 2014

Swing Kids of Iran

News item this morning: Iranian police arrest six young people for posting a video of them dancing to the hit song from a children’s movie, “Happy,” by Pharrell Willliams.

His magical song in Despicable Me 2 has sparked videos all over the world of happy people gyrating to the catchy beat.

Sadly, in the Islamic Republic of Iran, under its own brand of sharia law, it’s illegal for women to dance in public. The stuffy mullahs think dancing spreads our “decadent” culture.

(Obviously these empty turbans don’t know the worst of it. If they want to see real Western decadence they should come to the San Fernando Valley, where 90 percent of porn movies get filmed. But, I digress.)

The news story of the arrests of the youthful Iranian shoe-shufflers reminded me of another time, eighty years ago, when a despot also ordered arrests of young people for dancing.

His name was Adolf Hitler.

The Swing Kids as they were known in Germany in the 1930s loved American music, dressed in brightly colored clothes and had longer hair. They couldn’t arabesque but, they sure could shake ’em down. They danced the outrageously nimble jitterbug, and were so bold as to let one girl dance with two boys. The Swing Kids loved Louis Armstrong tunes. That really got under you-know-whose skin because Adolf “Everything Aryan” Hitler hated black people.

About the same time the kids were swinging, Hitler ordered formation of Hitler Youth. Boys from 14 to 18 had to join the national military-like, indoctrination organization, and females joined Girl’s Federation.

The groups amounted to Nazi catechism.

The largely apolitical Swing Kids, who hated Hitler Youth’s drab colors and buzzed haircuts, kept on dancing as a kind of protest. At first they jitterbugged in public. But after a police crackdown, they only danced in clubs. In 1941, Hitler had had enough of these whirling dervishes. His goose-stepping minions arrested more than 300 Swing Kids, sending some off to concentration camps. To show how petty Hitler could get, he even ordered haircuts for them.

Did it stop them? His strong-armed tactics backfired when arrests of the Swing Kids inspired young Germans to oppose National Socialism’s hegemony, and, we all know what happened to clumsy-toed Hitler.

So, young Iranians, keep on dancing.

Friday, May 16, 2014

Speechless Over First Amendment Idea

 Quick! Somebody run over to Montpelier Station, Virginia, to check on whether Founding Father James Madison is turning over in his grave.

As all you American history buffs know, Madison authored the first amendment in 1791, guaranteeing us freedom of speech and other things so dear to the hearts of Americans.

But, New York Senator Chuck Schumer and intellectual lightweight Harry Reid, the senate’s Democratic majority leader, want to rewrite the vaunted first amendment to empower government to regulate our political speech.

We hope that Schumer, who’s lived in a kind of a frat house in D.C. – unkempt bed and all – hasn’t been shooting brewskis because the idea reminds us of an old drinking song: “If the first amendment should happen to fall, thirty-two amendments left on the wall.”

Yeah, which guaranteed right is next?

These political pals tremble like puppies over prospects of Republicans winning the senate, and are howling mad by the U.S. Supreme Court’s Citizen United decision, which allows unions and corporations to donate to independent political groups. They want to return to the good old days – for them – when their union cronies could raise the most cash.

This proposed rewrite of the first amendment gives government power to regulate “raising and spending of money” to advance the “fundamental principle of political equity for all.”

In truth, the political “equity” these boys have in mind is their own. This amended amendment makes it more difficult for opponents to raise money to challenge entrenched Washington powerbrokers like Schumer and Reid, both, obviously scholars of the Bill of Rights.

Be thankful a constitutional amendment needs ratification by 38 states, which gives this stupid idea little chance of passage. Still, they’ve put the idea out there.

Hear that? It’s the Founding Fathers screaming: leave our first amendment alone. I’ll give an updated Thomas Jefferson the final word: “Mr. Reid, I knew James Madison. Jim Madison was a friend of mine. Senator, you’re no James Madison.”


R.D. Byron-Smith is published by Pilar Publishing of California. His books include, Dinner With A Killer, Epitaphs, Image of Evil, Back In Saigon, Murder Under London Bridge, The Collector and his latest, Killing Socrates.