I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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“Shiny objects have no place in the law.”

While you await my discussion of the McDaniel election contest opinion, I will direct your attention to Anderson’s quotation and discussion of the Tea Party response. The response contains the sentence quoted in the title of this post. While I cannot explain its meaning, I make some notes about the recurrence of warnings about “shiny objects” in various right wing media outlets.

And, as an aside, shiny objects do, in fact, have their place in the law, but they are quite literally shiny objects.  The phrase is a favorite for law enforcement officers who happen upon someone allegedly carrying drugs.  The officers regularly report seeing the suspect discard a “shiny object:”

testified that as he approached the defendant he saw him throw a silver colored object into the weeds about 2 or 3 feet away. Hunt went to the area and picked up a cigarette lighter which he identified at the trial as the lighter he retrieved from the weeds. He searched the area and found no other shiny objects.
State v. Allen, 183 Neb. 831, 832, 164 N.W.2d 662, 663 (1969).  Occasionally the shiny object is a spent cartridge in the grass, and a couple of time it is smuggled emeralds.  Only in one instance (of 49 cases where the phrase crops up in Westlaw) are the shiny objects metaphorical, in a case where the prosecutor in closing warns that the apparent contradictions cited by the defense are just “shiny objects:”
Trying to have shiny objects on the edge that you’ll focus your attention to instead of where it needs to be on what happened.
People v. Ring, 298074, 2011 WL 4104959 (Mich. Ct. App. Sept. 15, 2011)

Watch this Space

Will be posting, I hope later today, about the McDaniel election challenge. Lots to digest and much is occurring that is not the internet.

Last night was a crazy dream, right?

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Big Gay Ice Cream Truck comes to Oxford

New York’s Big Gay Ice Cream Truck is a pioneer and national award winner in the food truck business. They’re doing a Southern Tour, hitting North Carolina, Atlanta (yesterday & today), Birmingham (tomorrow, near Highlands at Five Points), and then Oxford outside Big Bad Breakfast on Friday afternoon. They are writing about the Southern tour on their blog.  I’ve heard great things about them, including the offerings on the Southern tour, and intend to check it out.  Southern Foodways describes some options:

Big Gay Ice Cream will be serving in the Big Bad Breakfast parking lot, 2 pm-10 pm. You’ve got 48 hrs to decide between the Salty Pimp, the Bea Arthur, and the Godzilla.

Here’s their description:

Does today’s MissSupCt sentencing opinion preview part of McDaniel opinion?

In the oral argument for the McDaniel senate election challenge, Justice Coleman’s questions were all directed to a extraordinarily narrow view of appropriate statutory construction, a view that seemed to go to the point of refusing to make sense out of what the legislature had done and applying a restrictive and extremely literal approach. His questions also suggested that he viewed this as essentially constitutionally dictated.

A sentencing opinion today in the Mississippi Supreme Court raises some of these issues.

There is a old and familiar rule in criminal sentencing that, where a statute has two sentencing options for the jury– a life sentence imposed by the jury or a term of greater than x imposed by the judge– and the jury rejects a life sentence, the judge is limited to some extent by the life expectancy of the defendant in the length of sentence, because of the jury’s rejection of the life sentence.

Justice Coleman is having none of it, because he says that it is something the court has written into the statute. Justice King responds that if all statutes were unambiguous and spoke clearly, there would be no need for judges.

In rejecting the rule, Justice Coleman specifically refuses to accept the concept that, where a later legislature readopts the statute without speaking to the construction, the legislature was presumed to have accepted it. He also gives the back of his hand to stare decisis.

Seems to me to speak pretty clearly what is on his mind about issues arising in the McDaniel challenge. Of course that is just one vote of six or possibly seven who are sitting on the case.

Lafayette County Bar to sponsor judicial candidate forum October 21st

The Lafayette County Bar will hold a judicial candidate forum on October 21, 2014 at Boure starting at 4PM. All judicial candidates on the ballot in Lafayette County are invited, which means three candidates for a circuit post, three for a chancery post, and two for a second chancery post. Judge Jimmy Maxwell of the Court of Appeals will moderate. The LCBA is going to seek an hour of CLE credit for the forum, and is charging $15 to attend, to cover appetizers and the CLE credit. There will be a cash bar.

They are inviting questions in advance and asking they be designated as relating to chancery or circuit practice. If you want to ask a question, they are asking they be submitted to Samantha Weathersby, the local bar treasurer, by 5PM on October 20, 2014. I will provide her email on request and the form for registering; just drop me an email or provide your email in comments.

There is going to be a party– Friday, Oct 17th at Freeland law office

We are hosting a party that is a tribute to Democratic House leader Bobby Moak.  There will be great music — a soul music with Effie Bert and friends– food, and drink. Here is the invite. You folks ought to come.

MOAK_OleMiss-TN_Party_2014_evite

Brian Schmidt took his Nobel Prize to show his grandma…

In a Scientific American account of how the Nobel Prize changes your life, Brian Schmidt describes taking the prize to show his grandmother…

“When I won this, my grandma, who lives in Fargo, North Dakota, wanted to see it. I was coming around so I decided I’d bring my Nobel Prize. You would think that carrying around a Nobel Prize would be uneventful, and it was uneventful, until I tried to leave Fargo with it, and went through the X-ray machine. I could see they were puzzled. It was in my laptop bag. It’s made of gold, so it absorbs all the X-rays—it’s completely black. And they had never seen anything completely black.

“They’re like, ‘Sir, there’s something in your bag.’
I said, ‘Yes, I think it’s this box.’
They said, ‘What’s in the box?’
I said, ‘a large gold medal,’ as one does.
So they opened it up and they said, ‘What’s it made out of?’
I said, ‘gold.’
And they’re like, ‘Uhhhh. Who gave this to you?’
‘The King of Sweden.’
‘Why did he give this to you?’
‘Because I helped discover the expansion rate of the universe was accelerating.’
At which point, they were beginning to lose their sense of humor. I explained to them it was a Nobel Prize, and their main question was, ‘Why were you in Fargo?’”

h/t Radley Balko on Twitter.

Gone Gurley

With apologies to Cari Gervin, here is one from my friend Dwight New, Auburn fan/graphic artist.

How many ways can one say they are wrong: Judge Dennis unmistakably and clearly dissents

The Fifth Circuit denied en banc review in the Texas abortion restriction case.  As Anderson points out, Judge Dennis dissents eloquently and at length.  He also finds many ways to call the panel opinion wrong.  Just in the first eight (of 62) pages, there are these snippets:

…the panel opinion flouts the Supreme Court’s decision…

The panel’s assertion that it applies Casey is false…

…the panel’s sham undue burden test…

…the panel’s perversion of the undue burden standard…

This court’s abject deference to state authority annihilates any “real substance” to the vital individual constitutional interest at stake:

The Abbott II panel decision conflicts with the Supreme Court’s decision in Casey in various ways.

Second, the panel misinterpreted and misapplied Casey’s “large fraction” test…

…the panel opinion is based on both erroneous legal precepts and improper de novo appellate court factual findings …