Pants On The Ground (Looking Like A Fool)

I could have used the search box on this blog to locate the URL for an old post about Sharon Keller. Instead I went to Google, and typed in “I was wearing someone else’s pants”. I remembered those words in the title, and for something that odd, my post would be the first result, right?

Uh, no. Numero tres. Beaten out, at number two, by WikiAnswers - Can you get STDs by wearing someone else's pants? (Related link on the answer page… “Am I wearing pants?”)

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From The Greek Word φυλάσσειν, Meaning To Guard, To Protect


S: (n) phylactery, tefillin ((Judaism) either of two small leather cases containing texts from the Hebrew Scriptures (known collectively as tefillin); traditionally worn (on the forehead and the left arm) by Jewish men during morning prayer)

Phylactery comes from the Greek verb φυλάσσειν which means to guard or to protect.

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What Sheriff Joe Arpaio Needs Now...

Objectively Reasonable Belief

Via Pete:

Concerning the actions of the officers involved in the death of Jonathan Ayers on Sept. 1, 2009, we find that the use of deadly force by Agent Billy Shane Harrison was legally justified based upon his objectively reasonable belief that such use of force was necessary to prevent death or great bodily harm to himself or others,” a statement signed by the grand jurors read.

“Based upon this finding, we the Grand Jury believe that the officers involved in this incident would be immune from criminal prosecution pursuant to Official Code of Georgia Annotated 16-3-24.2.

I Have A Kindle But...

A Question On Black Friday

Couldn't you save even more money by not buying junk you don't need in the first place?

Contempt of Bailiff

Anyone searching for a niche blog topic could do well blogging about contempt of court. Stories like these are getting more and more common (even if this one is beyond the pale):

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This May Be A Case Where We Need To Utilize Discretion

Here’s a quiz for you.

A young woman is trying to use a depleted and/or somehow otherwise broken fire extinguisher to put out the flames engulfing her car. (Right now. This is happening right in front of you.)
You tell her to wait while you run and get another extinguisher. Having made that promise, you decide not to dilly dally, but instead to run across the street to the nearest establishment that might have one.

Unfortunately, you don’t technically make it all the way across the street, because you are hit by a car. You are flung 15 to 20 feet, you require medical attention in the form of a staple in your head and a neck brace at the ER, you will walk around with a limp for a few days, but good grief, you were hit by a car and you’ll survive. Quit complaining, right?

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A Special Place In Hell

Byron Sage was a special agent in the FBI’s Austin office when he was called in to be the lead negotiator with the Branch Davidian’s during the infamous 1993 standoff. He was interviewed last year, along with other government agents, local Waco law enforcement, and some of the survivors, by Pamela Colloff in her Texas Monthly 15th anniversary article “The Fire That Time”. (Unfortunately, full access to TM articles is subscription only, or I’d provide a link to the article.)

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The Slightest Personal Impulse To Reprisal

Admit it. When someone calls you a “fool” or perhaps something worse, you want to respond. And not politely. You might lock ‘em up if you could…

This summer, incensed by a ruling in a child-custody case involving his granddaughter, 69-year-old Don Bandelman followed the judge into a public courthouse restroom and berated him as "a fool," court records show.

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I Just Might Be Mary Jo Kopechne

Everyone knows that Ted Kennedy drove his car off a bridge in 1969, abandoning a female companion who drowned.

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I'll Dismiss Yours If You Dismiss Mine: Innovative Negotiating Tactics

This excerpt from the ABA Journal speaks for itself, so I’ll just file it in the “don’t try this at home” category, and move on:

A lawyer says his letter threatening to reveal a prosecutor’s alleged car registration violation was intended as a joke, but Gage County Attorney Randy Ritnour didn’t take it that way.

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A Citizen of the World

From Newt Gingrich’s speech last night at some important fancy-shmancy Republican Party fundraiser:

Let me be clear about this: I am not a citizen of the world… I think the entire concept is intellectual nonsense and stunningly dangerous.

He’s taking dead aim at this portion of Obama’s July 2008 Berlin speech:

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May 35th, 1989

I’m no First Amendment scholar, but I’ll lay donuts to dollars that versus freedom of speech and freedom of religion, “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” is the least litigated of the First Amendment’s three spheres of protection**.

The reason for that? My uneducated off-the-cuff guess would be that while the majority always rules the legislative branch, it’s easy for them to forget that only unpopular and therefore minority speech needs protection. Ergo lawsuit. And inherent tensions between the free exercise and establishment clauses of freedom of religion simply demand litigation. It’s enivitable.

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Any other referrer watchers out there getting flooded with searches from Bing?

It could be that the new Microsoft search engine (some say the name BING is an acronym for But It’s Not Google) is simply getting the initial benefit from curious internet users, and that Google will keep increasing its stranglehold on search.

But so far, the new site seems to be getting good reviews.  I'm torn between two competing instincts: (a) my need to at least try out the newest techie thing, and (b) my desire not to contribute to the global Microsoft monopoly.  I guess I'll go mess around with it, with full intentions of returning to the Google.  Am I playing with fire?

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Come Senators, Congressman, Please Heed The Call

The political landscape is shifting. Perhaps slowly, but the numbers don’t lie.

The first elected official who ever made the case to me for legalizing gay marriage — and maybe the last, come to think of it — was Jesse Ventura, the former governor of Minnesota…

His libertarian philosophy extended to social issues, on which Ventura, who counted gay men among his closest aides and friends, said government had no business intruding.

As the governor told me then, he didn’t care what the gay couple next door were doing in the privacy of their home, including hanging up a marriage certificate, just as he didn’t think anyone should pester him about keeping a gun in his nightstand.

From last week’s NYT Magazine article “Queer Developments”, by Matt Bai. Same source, the percentage of respondents, by age, who agree that not allowing same-sex couples to marry is discrimination, by age:

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Clarity From Ambiguity

George Mason University School of Law Assistant Professor Neomi Rao writes a Wall Street Journal op-ed piece suggesting questions for recent Supreme Court nominee Sotomayor’s confirmation hearings. She notes that:

[A] great deal of law is made (and unmade) when the court interprets statutes…

Statutes are enacted through a difficult constitutional process. They require passage by the House and Senate and the president's signature.

Justice Antonin Scalia argues that this finely wrought procedure requires judges to stick to the text of statutes and follow their plain meaning. Justice Stephen Breyer has argued, to the contrary, that judges should interpret statutes pragmatically to promote good consequences.

Ms. Sotomayor needs to identify where she lies on this spectrum.

If it’s not obvious out of context – or from the fact that this is published in the WSJ – read the whole thing, and you’ll easily conclude that Rao favors the Scalia model.  Not surprising for a former associate counsel and special assistant to George W. Bush.  The closer you are to the Scalia portion of the “spectrum” the more worthy you are of confirmation.

“Follow the plain meaning” – makes sense, judges are there not to make the law, but to interpret it… we all learned that in third grade.

Let’s back up however. What question was it that Rao thinks Sotomayor should be asked, where her response should be the Scaliaesque “plain meaning” answer?

The question itself, an ellipsis, and the Scalia portion of her answer, repeated for emphasis, follows:

What is the court's role when interpreting ambiguous laws?

… Scalia argues that this finely wrought procedure requires judges to stick to the text of statutes and follow their plain meaning...

If a nominee is asked how they should interpret an ambiguous law, and they seriously respond “by following the plain meaning of the statute”, they should be disqualified on the grounds of stupidity.

You've Just Been Acquitted

“Helio Castroneves, you’ve just been acquitted of Federal income tax evasion charges, what are you going to do next??”

“I’m going to win the Indy 500!”


"Are Those Your Grades? You Can't Do That..."

So said Ally Sheedy to Matthew Broderick around the 2 minute mark of this clip in WarGames, as he hacks into the school’s computer and changes his F to an A.

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She Don't Lie, She Don't Lie, She Don't Lie

99% chance this turns out to be (a) bogus or (b) no different than anywhere else, but:

A study commissioned by the Spanish government to monitor that country's air quality has reported what most European travelers already knew: Their entire country is just one enormous coke den. Like, you can breathe it!

Reports MSNBC:

A new study has found the air in Madrid and Barcelona is laced with at least five drugs - most prominently cocaine.

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Drunk? In Court?

Houston lawyer Tom Kirkendall figured that since the first thirty years of his law practice hadn’t provided him with the opportunity to watch one federal judge sentence another one to prison that he ought to carve out some time to go watch today’s Samuel Kent sentencing. Some snippets from Tom’s report:

We also learned tidbits of information that likely would have been already been revealed had Judge Vinson not maintained such tight control over information…

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Do Ask, Do Tell

From It’s A Complete Outrage:

Lieutenant Daniel Choi, a founding member of Knights Out, an organization of out lesbian, gay, bisexual and transgender (LGBT) West Point Alumni, received a letter from the Department of the Army on April 23, discharging him from the Army due to his sexual orientation…

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Speaking of Crappy Judges...

On the heels of my latest Sharon Keller post, comes this gem from this month’s Texas Bar Journal under disciplinary actions: the State Commission on Judicial Conduct issued a public warning to Judge Gustavo Garza, justice of the peace, in Los Fresnos, Tx. What sorts of judicial No No’s could merit a public warning? Among other things:

Failing to inquire into the students’ or their parents’ ability to pay a fine or to provide them with the options of a payment plan, performing community service in satisfaction of a fine or court costs, or waiving the fine or costs after a determination of indigency;

Sounds like made-for-TV Podunk I’m-a-JP-and-I’m-here-to-collect-$$$ garbage. “Hey, I’ve just made a finding that you have no money, but since no one else gets community service in my court, neither do you…” What else?

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Moving in the Right Direction

40 years from now (my best guestimate) we might see this story, “Death penalty bill headed to full Senate,” but with the word Texas instead of Colorado and the byline Austin instead of Denver:

DENVER—The Colorado Senate is set to vote on a measure to end the death penalty as they rush to wrap up this year's legislative session.

The measure (House Bill 1274) is expected to come up for a vote Monday, two days before lawmakers must adjourn.

The bill passed the House by a single vote, and another close vote is expected in the Senate.

Getting a bill through the first part of a bifurcated Congress is quite an acompishment, no matter the final result.  (Well, it matters obviously to those put to death while waiting for the other shoe to drop, but still, baby steps.)

There's a bill pending to abolish the death penalty in the Texas Leg, but it has a 0% chance of passing the House, never mind making it to the Senate for a vote.  And some defense lawyers and anti-death penalty advocates might predict four centuries not four decades for the Lone Star State to reach the same point, but then again:

The bill would take the $1 million now being spent to prosecute death penalty cases and use it to investigate cold cases. That would add seven employees to the state's cold case unit, which currently has only one investigator.

Sheesh. The centennial state only spends a million bucks prosecuting capital crimes – what is that? – every year? Not sure that would keep Harris County’s death penalty budget afloat for a day certainly not a week. (See 194 capital cases pending)

Is it possible that it will be financial considerations on the part of the general public that will eventually end government sanctioned killing?

[Hat Tip: Think Outside The Cage]

Sharon Keller: But I Was Wearing Someone Else's Pants

Overwhelming immutable facts that tend to show the defendant is indeed guilty of the crime charged can lead to some pretty creative excuses. For example, defendant gives consent to search on tape and a baggie of cocaine is found in his right front pocket.

Extensive legal training isn’t necessary here. The client intuitively knows that unintentional possession is the only realistic defense, and so from time to time you’ll hear a lawyer in the courthouse saying, “Hey, my guy told me the I-was-wearing-someone-else’s-pants story…”

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It's Tough Being Rich (Apparently)

On top of all the other afflictions that come with being rich – like paying more overall in taxes because they have more to start off with – the wealthy now have to deal with the guilt that comes from eating foie gras and driving Beamers during a recession:

More than half of affluent consumers say they feel "guilty" making luxury purchases in this economy, a survey of the most-moneyed Americans finds. Fewer this year also say they like to be labeled as "wealthy."

Of more than 1,500 respondents, 54% agreed they "feel guilty purchasing luxury goods in the current economic climate." Just 29% said they like to be recognized as being "wealthy," down from 35% a year earlier.


At Least Someone Is Willing To Hold Up The Fort

The subcommittee hearing on whether to send a bill of impeachment (if that’s what it’s called) to the House floor regarding (some of) CCA Judge Sharon Keller’s outrageous, improper and unethical actions is apparently starting up around 5 pm today.

I just called Mark Bennett, and he’s there, willing and able to help do whatever needs to be done, but I had to tell him that I didn’t have the moxie to tell my wife I wouldn’t be available for twins-pickup-duty at daycare, so I’m skipping out. I’m sure Mark will give us a blow-by-blow update later.

It's Not Your Home

I like to think I’m capable of understanding other people’s problems. Heck, by trade, it’s a necessity that I ask others to put themselves in the shoes of my clients. And I realize that this post will come off as being written by someone incapable of empathy.

But let me repeat it anyway:

It’s not your home.

There, I said it. If you are upside down on your note: it’s not your home that you are losing. If you lost your job, and can’t pay your mortgage: it’s not your home that you are losing.

You may be moving, voluntarily or otherwise, out of the bank’s home… but you won’t be moving out of your home.

Why the diatribe? I’m going crazy listening to newscasters and reading newspaper articles about folks “losing their homes”. That’s why they call it a “note” or a “mortgage”. Because it’s owned by someone else, most likely a bank.

Here’s a ridiculous, but absolutely true, example:

The property was purchased in January 2005 for $1,157,000. The combined first and second mortgages totaled $1,156,730 leaving a down payment of $270. Let's just call it 100% financing.

$1.1 million home: less than $300 down. Read the whole entry for details, including the refinancings (plural), but here’s the punch line:

These owners will probably just walk away. I doubt they have any assets. They never put any money into the deal, they pulled out $333,000 in cash, and they got to live in Turtle Ridge for 3 years. Not a bad deal -- for them.

Very few of the “homeowners” about to “lose their homes” started off with quite this extreme an example. But arguing from the extreme is not a logical fallacy, it’s allowed. And more to the point, this is literally just an extreme example of what folks caught up in the subprime mortgage default crisis are going through.

  • They took out a loan they couldn’t afford.
  • They got an adjustable rate mortgage which allowed them to pay less now, more later.
  • They put very little and sometimes next to nothing down.
  • They lived for X amount of time for about what they were paying in rent before.
  • They can’t make their new higher monthly mortgage now that the rate has gone up.

And now… “they” are losing “their home”.

Police Department Goes "Quack! Quack! (AFLAC)"

Austin defense lawyer Kiele Linroth Pace posts about an American Statesman article out today, “Some Austin police buying suspension insurance”:

Several Austin police officers, fearful that a misstep on the street will result in an unpaid suspension, demotion or firing, have begun taking out insurance policies to protect themselves from a potential monetary hit.

As Kiele notes, “I wouldn't begrudge the officers' efforts to protect themselves except that I'm pretty sure there's no insurance coverage available to cover missed or lost employment due to wrongful arrest.” Indeed. According to the article:

The insurance would cover financial losses for more routine suspensions, which result from incidents such as minor patrol car accidents, tardiness or rudeness, but could not be used in situations in which officers' actions injure a person or in which they knowingly violate the law or demonstrate "intentional wrongdoing."

For example, the policies would not cover officers suspended for drunken driving, drug use or excessive use of force, company officials said.

The Austin chapter of the ACLU has a different take:

Debbie Russell, president of the Austin chapter of the American Civil Liberties Union of Texas and a frequent police critic, said she thinks officers have a right to protect themselves financially. However, she said, she is concerned about the insurance purchase.

"I'm not sure if that is a good message for them to send, as if they are expecting to be fired or suspended," she said.

“Not sure”. Well I don’t know how I feel about it either. From a purely PR standpoint, it cries out for smart alec defense lawyers to amuse themselves by writing “aren’t-I-clever” titled posts. But apparently this sort of insurance is available in other professions, why should police be automatically excluded?

Like most things, we’ll have to wait and see what the final result here is to know the effect. How will the minor/major infraction rule be enforced?

For example, what about the “rudeness exception”? How is that measured? If police interaction with the citizenry is rude enough to warrant suspension, can it be completely unintentional? (Or is it only “major” if you’re rude to the police chief?)

The devil, as always, is in the details…

Inside Baseball

Gerald Herbert of the Campaign Legal Center weighs in on yesterday’s federal charges filed in the oh-so-important Miguel Tejada case with an interesting comparison.

From his article “So We're Indicting Baseball Players, But Not DOJ Officials for False Testimony to Congress?”:

I find it shocking that the Department would elevate the prosecution of a major league baseball player for lying to congressional investigators about steroid use above the prosecution of former Justice Department officials who was found to have given false testimony to Congress about politicized and illegal hiring practices within the agency. 

Some background here: Five time all-star Tejada seems poised to enter a plea to one misdemeanor count under Title 2 U.S. Code Section 192 “Refusal of Witness to Testify or Produce Papers”. (Charging instrument, in this case an information not an indictment as widely reported, available here.) Long story short… the feds can prove he lied to Congressional investigators in the long running “US-Economy-Collapses-While-Senators-Investigate-Who-Injected-Whom-With-What” scandal.

Fine. Lying is bad – must be punished. Apparently Tejada should feel fortunate that Congress forgot to criminalize lying about your age. He got a free pass on that one; this one’s gonna hurt a little bit more. I’ll predict probation, but feel less sure what a crime involving moral turpitude will do to his immigration status. It’s not a felony, so chances are he’ll still be playing for the Houston Astros next season.

Herbert’s point though is that when it comes to free passes, Bradley Schlozman received a doozy when it comes to “lying to Congress”. When he was asked to explain himself in the firing of the U.S. Attorneys investigation, he denied making hiring and firing decisions based on political bias. (That would be illegal; so he denied it.)

He was lying. Not to his wife, or his employer, but to Congress. (You should be able to make a credible case that lying to your wife is worse than lying to Congress; just pointing out that Tejada lied to Congress about a much less important subject than Schlozman. Also, I suppose, lying to your wife is reasonably not a crime, while lying to Congress is.)

Over three years in which he controlled employment decisions, Schlozman favored young conservatives for entry-level jobs, transferred those he called "right-thinking Americans" into top assignments and instructed colleagues that "adherents of Mao's little red book need not apply," according to e-mails cited in the report.

Authorities analyzed 112 career hires during Schlozman's tenure and determined that "virtually all" of the lawyers whose political affiliations were known at the time had ties to Republicans or conservative legal groups.

So does what you’re lying about make a difference? And if so, why the night and day outcomes in the two examples?

Insulting Turkishness

Jeffrey Rosen’s article “Google’s Gatekeepers” in Sunday’s New York Times Magazine is an interesting read. Seems that Google has to employ a gaggle of YouTube censors to make sure it complies with laws in every jurisdiction it reaches. Laws that have not only civil but oftentimes criminal penalties:

[A] Turkish judge had ordered the nation’s telecom providers to block access to the site in response to videos that insulted the founder of modern Turkey, Mustafa Kemal Ataturk, which is a crime under Turkish law.

Which law exactly is this? Why it’s Article 301 of the Turkish Penal Code which prohibits insulting Turkey, Turkish ethnicity and even government institutions. And it was originally punishable by up to 3 years in the pokey. And it’s no Club Fed either. From Wikipedia:


   Before amendments were made to Article 301 on April 30, 2008, the article stated the following:


  1. A person who publicly denigrates Turkishness, the Republic or the Grand National Assembly of Turkey, shall be punishable by imprisonment of between six months and three years.
  2. A person who publicly denigrates the Government of the Republic of Turkey, the judicial institutions of the State, the military or security organizations shall be punishable by imprisonment of between six months and two years.
  3. In cases where denigration of Turkishness is committed by a Turkish citizen in another country the punishment shall be increased by one third.
  4. Expressions of thought intended to criticize shall not constitute a crime.

Prison is not necessarily a requirement. Noted Turkish journalist Hrant Dink received a suspended sentence in 2006 when convicted for his statements about the Armenian genocide . This apparently didn’t strike some as just punishment, so they murdered him. So what happened next? In January 2007:


Foreign Minister Abdullah Gul, on his way yesterday to Paris to participate in a conference on Lebanon, told reporters that there are "certain problems with article 301." The controversial article 301 of the Turkish Penal Code is the one which was used by nationalist lawyers to bring recently slain journalist Hrant Dink to court on charges of "insulting Turkey."


“Certain problems” indeed. The solution? Reduce the maximum punishment to two years, replace the words “Turkishness” with “Turkish Nation”, and require the Ministry of Justice to review and approve prosecutions.


Acess to YouTube – owned by Google - is still completely blocked in Turkey to this day.


Update: My two marketing experts, Scott and Mark, have simultaneously alerted me that by virtue of writing this post I should now make the following statement: If you or a loved one live in Austin, Texas and have been charged with violating Turkish Penal Code 301, please contact my office for immediate assistance.


Some in the legal blogosphere may complain about the propriety of the above statement, but I pay my marketers a ton of money to help me write this stuff. Not that I care about the cost; I just pass it along to the consumer.

Sending Brave Women (and Children?) to War

Private Monica Brown became the second woman awarded the Silver Star since WWII for helping rescue several fellow soldiers from a burning vehicle with bullets racing by and mortars exploding all around her. Tonight 60 Minutes ran a story about her and women “on the front lines” in Afghanistan and elsewhere.

Apparently the Army gets around the so-called prohibition against women in combat by “temporarily attaching” instead of “permanently assigning” them to combat units. (One suspects lawyers with a genius for parsing were involved, e.g., but never mind.) Here’s my ad hoc transcript of various portions:

Lara Logan: Women are not supposed to be, according to the strict guidelines, are not supposed to be on the front lines of combat.


XO: We do not assign our female soldiers to the infantry and the armor. We do attach female soldiers to a specific unit for a specific mission for a specific period of time. Absolutely in accordance with Army policy.


Sounds like a policy with a few exploitable holes in it. Then when the reporter goes on to pose essentially the same question of the private and her superiors, there’s a good example of getting two seemingly opposite answers that are actually one and the same. First to the officers:


LL: Basically anywhere you are in Iraq or Afghanistan is the front line…


XO: That’s a great question. Anywhere you go outside of a forward operating base you can run into the threat. 


Same question to now Specialist Brown:


LL: The Army has very strict rules about women not being on the front line, and I mean, there’s no question that you were on the front line…


Brown: …there is no front line In Afghanistan or Iraq. You go out on missions whether it be humanitarian aid or, you know, help building schools or pulling support for another unit while they are building roads or searching for Taliban. You go out there and do your job.


‘Everywhere is the Front Line’ and ‘There is no Front Line’. Both answers put the lie to the Army’s ‘policy’ of not having women on the omnipresent/non-existent front line.


Isn’t it about time we stopped pretending that women are somehow either (a) too precious a commodity to risk in a ‘real war situation’ or (b) inferior to men in certain situations precisely because they are female and thus less able to do the job? Or is it a combination of the two? Must we cling to old prejudices and logical fallacies to justify the current policy?


Check out former marine J. Kaplan’s comment on a similar story from over a year ago:


Women in combat is a tricky issue. Some women in the military are well-qualified for it while some aren't. How to designate which women should and which should not be placed in combat roles in an official by-the book process would be impossible.


But all men assigned to combat are well-qualified for it? The comments section on the 60 Minutes story is alive with outrage that the two most critically wounded soldiers Brown helped save declined to be interviewed because, as one of them said, “Women have no business being on the front line.” This despite the superior officer’s affirmations that they were most likely alive because of her actions.


Still, I was left watching the entire piece struck by Brown’s words at the very beginning. Undeterred by the spirit of this administration’s insistence that coffins not be shown on the evening news, the MacNeil/Lehrer Report has ended each broadcast with pictures, names and ages of fallen veterans in Afghanistan and Iraq as the information becomes public. And every night I stare at the baby faces and sometimes exclaim out loud “Nineteen!”, “Twenty-Four!”, “They’re just children!”.

Brown was 18 at the time of the incident:


LL: This is a big deal, winning the Silver Star is a big deal for anybody and winning it at your age is an even bigger deal.


Brown: It’s overwhelming.


LL: You’re being treated like a superstar really, and you’re just a kid…


Brown: Yeah. I am just a child.

So Your Son Was Convicted... What Next?

Mom certainly gets points for going the extra mile