Simpson P.C.

September 11, 2001, was a horrible day.  It was Pearl Harbor for a generation, perhaps, multiple generations.  It was the day that terror from abroad came to America, and it is a day none of us will soon forget.

Like many, I know what I was doing that day.  Even as the jets slammed into the sleek, towering buildings of the World Trade Center in New York, I was sitting at my desk on the third floor of a dumpy little office building in downtown Houston, Texas, just two blocks from the courthouse.  I couldn’t work that day.  The news on my computer screen was too horrific, and the mantra echoed over and over in my head, “This can’t be happening.  This can’t be happening.  This can’t be happening….”

I got home that night and saw the images on the news.  Survivors covered in dust.  Bodies—some still alive—falling from on high.  And that awful, awful image of the planes hitting home; striking us in our core, as a nation, as a people.  I saw the images of dancing in the streets in the Middle East, and I felt the bile rise.  I felt a rage like I had rarely felt.

But something happened the next day.  The sun came up.  The horror was still there.  It’s been there ever since.  But something was different.

It’s always been my tendency to intellectualize everything—whether it’s good things, bad things, whatever.  Put simply, I think too much.  In my line of work, it’s sort of inevitable.  It’s what I do.  But I couldn’t help thinking that those faceless criminals—faceless, at least, at that time—had somehow missed the point.  They thought they were striking at America.  I wept, yes, I wept.  But I didn’t weep for America.  I wept for the lives lost, for fathers and mothers ripped from children, for sons and daughters ripped from parents, for brothers and sisters ripped from each other.  But I didn’t weep for America.  Because they never attacked America, and that’s what “they” will never understand.

The planes on 9/11 were targeted at the World Trade Center—a symbol of America’s economic might; at the Pentagon—a symbol of its military; and, my guess would be, at the White House—a symbol of its executive authority.  But I suspect that there was never a plane aimed at the Houses of Congress.  Or at our United States Supreme Court.  And there was never a plane aimed at any of the 50 statehouses and the countless courthouses in this nation.  That is where the Republic lives.  That is where democracy reigns.  That is our heart.  And our soul.

This morning, I was returning from a meeting with a client, driving up I-45.  I saw many flags flying at half-mast—I assume as a remembrance of 9/11.  But today is 9/12.  Ten years ago, we saw a re-birth of a spirit of giving, of volunteerism, of togetherness that grew spontaneously as a reaction to the horror that we had all witnessed.  It was a fitting tribute to the victims of 9/11.  Let’s do it again.  Raise those flags to full staff.  Remember that they died on 9/11.  But remember why they lived on 9/12.

A wonderful single-page Motion in Limine from the Harris County District Attorney’s office.

For the benefit of non-lawyer readers (I assume there are some), a Motion in Limine is a procedural device that, if granted pre-trial, prevents an opponent from mentioning or alluding to some particular fact in front of the jury before getting a ruling on its admissibility.  It’s usually used where a proper foundation has to be laid before something becomes relevant or where there is some nasty fact out there (such as a past not-so-nice-but-not-illegal act) that would prejudice the jury against one side or another without actually proving anything relevant to the case.

It’s standard practice to include a statement in any such Motion that you don’t want the other side talking about you filing it.  (Juries don’t like to be told that they’re not being allowed to hear the whole story.)  But in the case of this one, I can assume only that the prosecutor had a real sense of humor or was operating on auto-pilot.  I’ll let you be the judge.

Tip ‘o the hat to Defending People.

The wheels of the law turn slowly.  Once a precedent is set, it can take years to overturn, even when the weight of public opinion has turned against its underpinnings.  Case in point, New York’s recently passed marriage-equality law.

Even as activists celebrate the law’s passage, an odd case comes out of the Supreme Court of Broome County.  In Yonaty v. Mincola, Hon. Phillip Rumsey held that a plaintiff who complained of defamation for allegedly false statements about his being gay had a case that could proceed.

The important thing about this case is not that the statements were false but that Judge Rumsey held that—under existing precedent—the statements were derogatory per se. When a plaintiff brings a claim for defamation, he generally has to prove some sort of damages arising out of the false statement; usually some sort of economic loss.  Except for a very limited class of statements, just because you say it, it doesn’t cause harm, even if it may be false.

In that limited class of statements—usually statements concerning a person’s alleged criminal past, alleged infection with a “loathsome disease,” dishonesty in business, and (in New York) homosexuality—harm is presumed, and a statement is actionable as a matter of law.  But when equality in the most fundamental and basic of familial relations has been explicitly recognized by the state, can it really be defamatory to call someone “gay”?  Under Judge Rumsey’s ruling, yes it can.

It’s important to note that the fault here is not Judge Rumsey’s.  He followed the precedent that he was required to follow.  Trial court judges do not have the luxury of ignoring years of established case law.  No, the lesson his order teaches is that, when discrimination becomes institutionalized, it takes more than a single vote or a stroke of the governor’s pen to make it go away.  History does not depend upon the present, but vice versa.  The law on which Judge Rumsey was forced to rely came from years before the recent referendum, but it was the law, nevertheless.

In recent years, states and their citizens have found all new classes of people to hate, and the results of that hatred are now turning up in state houses across the nation.  It is ground to be trod with caution.  When, in the heat of the moment, targeting one class for particular treatment becomes a goal of the law, it is not so easily ferreted out when more sober thoughts take hold.

Tip o’ the hat to Onpointnews.com.