Re: Don't talk to cops

1

but how else will they get to hear our svinoi cracks?


Posted by: yoyo | Link to this comment | 03- 7-10 12:14 AM
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It sounds to me like the government is setting up the argument that it's custodial, not interrogation. Must be custodial *and* interrogation for Miranda to apply. As for what's to keep them from leaving you there without ever addressing you, that's what they want going through your head. Cops are always finding creative new ways to circumvent Miranda. This sounds kinda legal to me.


Posted by: Di Kotimy | Link to this comment | 03- 7-10 3:58 AM
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I think the rationale is that, if they haven't asked you a question, it's not an "interrogation" (leaving aside the "custodial" question). They're relying on the fact that most people will begin to speak to fill an uncomfortable silence, but the point of not asking any questions is that you're completely volunteering information in a non-interrogatory situation. Because you're not being questioned.


Posted by: sam | Link to this comment | 03- 7-10 5:06 AM
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I thought that you weren't technically in police custody unless you specifically said "I want to leave now, am I free to go?" and they said "no."

I could be wrong.

I also remember reading that unless you're super, super clear that you want a lawyer -- like, you say "I want to speak to my lawyer, and don't wish to answer any further questions, and want to be explicit that if you ask me any further questions it will be after I specifically requested counsel" -- they have some wiggle room.

Again, I could be wrong. Pretty much I just totally don't trust cops. Except gswift, he seems okay. Still wouldn't want to be arrested by him.


Posted by: Sifu Tweety | Link to this comment | 03- 7-10 7:08 AM
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There are plenty of cases where people with fairly low IQs--low enough that they're probably developmentally disabled--say things like, "I should probably get a lawyer," and that's not good enough.

What a former Federal public defender told her brother--who was in to drugs at the time--to say was, "I want a lawyer NOW." And then shut your mouth completely until you get one.


Posted by: Bostoniangirl | Link to this comment | 03- 7-10 7:34 AM
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Kinda fun, but begs the question of why neb was listening to this in the first place.


Posted by: JP Stormcrow | Link to this comment | 03- 7-10 8:02 AM
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If I had to be arrested, I'd want to be arrested by gswift.


Posted by: heebie-geebie | Link to this comment | 03- 7-10 8:02 AM
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There are plenty of cases where people with fairly low IQs--low enough that they're probably developmentally disabled--say things like, "I should probably get a lawyer," and that's not good enough.

I'm pretty sure the standard is the same regardless of IQ.


Posted by: Sifu Tweety | Link to this comment | 03- 7-10 8:06 AM
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||
OT for Brock.

Since this is the crime law thread, how did your speeding ticket thingie end up? Did you do the plea bargain and if so did it work as advertised? I ask because one of the offspring just got ticketed in the selfsame Chautauqua County (I-86 rather than the Thruway--the old cop car behind a snowbank trick). As he was only going 82 rather than 89 (because he's an environmentalist) the terms seem particularly favorable (reduction to a no points "parking ticket"). Feel free to email me at my pseud if you do not wish to further subject your actions to public scrutiny.
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Posted by: JP Stormcrow | Link to this comment | 03- 7-10 8:18 AM
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I think it is. There were a few snippets of things that I'd jumbled in my mind. Too early on Saturday morning.


Posted by: Bostoniangirl | Link to this comment | 03- 7-10 8:45 AM
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Musta been one hell of a Friday night, BG.


Posted by: JP Stormcrow | Link to this comment | 03- 7-10 8:50 AM
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See, I'm not oriented to time,


Posted by: Bostoniangirl | Link to this comment | 03- 7-10 8:58 AM
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Or punctuation. I guess that I wish I didn't have to go to work tomorrow.


Posted by: Bostoniangirl | Link to this comment | 03- 7-10 8:59 AM
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This kind of issue comes up a lot on the TV show, The Closer. The title character is very skilled at working around Miranda rights -- however I suspect the show may not be a reliable source of legal precedent.


Posted by: peep | Link to this comment | 03- 7-10 9:35 AM
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Most of my information comes from reading Homicide, which may or may not be a more accurate source of information (I mean, it's non-fiction, anyhow).


Posted by: Sifu Tweety | Link to this comment | 03- 7-10 9:36 AM
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I've translated a bunch of episodes of The Closer.

There were one episode in particular where her behaviour was pretty revolting, and you were supposed to cheer for her.


Posted by: David | Link to this comment | 03- 7-10 9:43 AM
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It sounds to me like the government is setting up the argument that it's custodial, not interrogation. Must be custodial *and* interrogation for Miranda to apply. As for what's to keep them from leaving you there without ever addressing you, that's what they want going through your head. Cops are always finding creative new ways to circumvent Miranda.

And people ask me why I'm an anarchist! After many years of unpleasant run-ins with cops, this still shocks me--it seems so Pinochet/Argentina-dirty-war.

Although frankly if a lot of USians are watching a television show with a heroic and adorable main character who cleverly circumvents Miranda all the time (haven't seen The Closer so this is from a cursory google)....well, that's very demoralizing indeed. Talk about identifying with the oppressor.


Posted by: Frowner | Link to this comment | 03- 7-10 9:45 AM
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I thought that you weren't technically in police custody unless you specifically said "I want to leave now, am I free to go?" and they said "no."

That criterion certainly passes the "is this impossibly stupid?" test.


Posted by: nosflow | Link to this comment | 03- 7-10 10:33 AM
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That would be an incredibly stupid criterion, yes. The actual rule doesn't require you to specifically ask -- it's just a question of whether a reasonable person in your shoes would feel free to leave. Of course, I've read cases where being handcuffed (by the police, not for fun...) didn't amount to custody, so apparently reasonable people see things in interesting ways.


Posted by: Di Kotimy | Link to this comment | 03- 7-10 11:03 AM
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And yes, the lengths some cops will go to to try to avoid Miranda is depressing. But I really have no problem at all with the tactic described in the post. Assuming lawful custody, of course.


Posted by: Di Kotimy | Link to this comment | 03- 7-10 11:07 AM
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Of course, I've read cases where being handcuffed (by the police, not for fun...) didn't amount to custody

Those people might have felt free to leave. (Provided they didn't move in such a way as to also feel the efficacy of the cuffs.)


Posted by: nosflow | Link to this comment | 03- 7-10 11:26 AM
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The rule is simple:

If they give you your Miranda warnings, then you are in custody. If you have not been given your Miranda warnings, then you are not in custody.


Always ask: "Am I free to leave?"


Posted by: will | Link to this comment | 03- 7-10 11:53 AM
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22: So what if they don't give you your Miranda warnings, but don't say that you are free to leave?


Posted by: essear | Link to this comment | 03- 7-10 11:59 AM
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6 is kinda askin' for it.


Posted by: k-sky | Link to this comment | 03- 7-10 12:33 PM
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Sorta.


Posted by: JP Stormcrow | Link to this comment | 03- 7-10 12:40 PM
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If they give you your Miranda warnings, then you are in custody. If you have not been given your Miranda warnings, then you are not in custody.

Well, after Missouri v. Seibert, the rule has changed a little. If they don't give you your Miranda warnings and they get a full confession but then get you to repeat the confession after giving you the Miranda warnings, but the failure to Mirandize the first time was just an accident and not a deliberate circumvention of Miranda, then it's all good.

So what if they don't give you your Miranda warnings, but don't say that you are free to leave?

Bottom line, if you confessed and they need to get that evidence in, then the answer is whatever gets your confession into evidence....


Posted by: | Link to this comment | 03- 7-10 1:02 PM
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Always ask: "Am I free to leave?"

Why not just infer from the fact that you haven't been mirandized that you must be free to leave, and leave?


Posted by: nosflow | Link to this comment | 03- 7-10 1:16 PM
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27: Because that might look like fleeing, which would give them the right to tase you, bro?


Posted by: A White Bear | Link to this comment | 03- 7-10 1:18 PM
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27 asks a good question.


Posted by: parsimon | Link to this comment | 03- 7-10 1:19 PM
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How can you be fleeing if you aren't in custody?


Posted by: nosflow | Link to this comment | 03- 7-10 1:20 PM
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Happens pretty regularly, doesn't it?


Posted by: apostropher | Link to this comment | 03- 7-10 1:21 PM
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30: You're not in custody when someone pulls you over, right? But if you speed off, you give them cause to chase you. If the police yell at you to stop when you're coming out of a store, and you take off running, you're not in custody, but they might shoot you in the leg. I'm just saying; I'd establish pretty firmly that I was free to go before walking away from the cops.


Posted by: A White Bear | Link to this comment | 03- 7-10 1:23 PM
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33

How can you be in custody if you're fleeing?


Posted by: Sifu Tweety | Link to this comment | 03- 7-10 1:24 PM
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How can a flea be in custody? They're so leetle and kyoot.


Posted by: Stanley | Link to this comment | 03- 7-10 1:25 PM
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35

33 - Asking questions gets you a night in the box.


Posted by: snarkout | Link to this comment | 03- 7-10 1:28 PM
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Just to be clear, I think Will's 22 is intended to be descriptive of how the rules tend to get applied, not to describe an actual controlling precedent. "Custody" does not turn on whether or not they give Miranda warnings.


Posted by: Di Kotimy | Link to this comment | 03- 7-10 1:28 PM
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37

Remember that one Red Hot Chili Peppers video where Flea got all custardy?


Posted by: Sifu Tweety | Link to this comment | 03- 7-10 1:28 PM
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Is Custody a girl's name or a boy's name?


Posted by: apostropher | Link to this comment | 03- 7-10 1:28 PM
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37: That's funny. I was reading about Flea after posting 34. I hadn't realized that (1) he's an Aussie and (2) he was in Back to the Future Part II.


Posted by: Stanley | Link to this comment | 03- 7-10 1:32 PM
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Even if you ask the cops if you're free to go and they say yes, abstain from skipping away from them. They hate that.


Posted by: Sifu Tweety | Link to this comment | 03- 7-10 1:32 PM
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40: Yeah, the best is to be wearing Heelys™, because weeee!


Posted by: Stanley | Link to this comment | 03- 7-10 1:35 PM
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I would totally get incriminating statements from all of you.

The standard is cops + custody + interrogation. Custody is basically arrest or its functional equivalent. Interrogation means police initiated questioning. If we arrest someone and they start rambling on about what happened it's perfectly legal for us to just listen and let them go on.

Not free to leave is not the same as arrest. For instance, on a traffic stop I'm not required to advise someone of Miranda rights before I ask if there's drugs and/or guns in the car. Or if I respond to a domestic violence call those parties definitely not free to leave. But it's perfectly fine to say "we got a call of a fight, so what's going on tonight?" The resulting statement might be incriminating, but it's not likely to get suppressed due to lack of Miranda, because asking general questions when you're still trying to ascertain if a crime was committed is not regarded as the functional equivalent of an arrest.

A couple common misconceptions:

5th amendment covers self incrimination. It does not mean you don't have to identify yourself. Also, Miranda only applies to interrogation after arrest. If we're not interrogating you, we're not going advise you of your rights just for the hell of it. Cackling about how you're "going to have my job" because I took you to jail without reading you your rights is especially amusing. Bonus idiot for proclamations along the lines of "I know the law, I'm a paralegal".


Posted by: gswift | Link to this comment | 03- 7-10 1:36 PM
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they might shoot you in the leg

Warning shots and/or non lethal disabling shots aren't actually done. Target area is going to be center mass or the head.


Posted by: gswift | Link to this comment | 03- 7-10 1:52 PM
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44

43!!!!


Posted by: A White Bear | Link to this comment | 03- 7-10 1:54 PM
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45

I should clarify that you can't just shoot someone for running. Which isn't to say you can't shoot someone just because they're running.


Posted by: gswift | Link to this comment | 03- 7-10 1:57 PM
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I should clarify that you can't just shoot someone for running.

You also have to go over and see whether they're dead.


Posted by: apostropher | Link to this comment | 03- 7-10 2:00 PM
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47

I would totally get incriminating statements from all of you.

That's because you ask trick questions.


Posted by: Knecht Ruprecht | Link to this comment | 03- 7-10 2:04 PM
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48

You also have to go over and see whether they're dead.

And sprinkle some crack on them.


Posted by: gswift | Link to this comment | 03- 7-10 2:07 PM
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49

That brings them back to life.


Posted by: apostropher | Link to this comment | 03- 7-10 2:09 PM
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48: I'm picturing something like a pepper-grinder.


Posted by: Di Kotimy | Link to this comment | 03- 7-10 2:11 PM
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51

A crack grinder would be awesome.

Off to bed, I have to work tonight.


Posted by: gswift | Link to this comment | 03- 7-10 2:16 PM
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52

How can you be in custody if you're fleeing?

Because "custody" doesn't name a state of physical restraint.


Posted by: nosflow | Link to this comment | 03- 7-10 3:24 PM
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I am unconvinced by 52. Look at the language: to flee from custody. To be returned to custody. To be in custody, preparing to flee. By analogy with a bear, if you flee custody, you are not in custody: if you flee a bear, but you are in the bear, your fleeing has failed.


Posted by: Sifu Tweety | Link to this comment | 03- 7-10 4:14 PM
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Inside of a custody, it's too dark to read. (Sad, but true.)


Posted by: A White Bear | Link to this comment | 03- 7-10 4:16 PM
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53: Sometimes you flee the bear; sometimes the bear flees you.


Posted by: Stanley | Link to this comment | 03- 7-10 4:17 PM
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45: I should clarify that you can't just shoot someone for running. Which isn't to say you can't shoot someone just because they're running.

Okay, what? If there's supposed to be some self-evident distinction here, I'm not seeing it.


Posted by: DS | Link to this comment | 03- 7-10 4:53 PM
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45: I should clarify that you can't just shoot someone for running. Which isn't to say you can't shoot someone just because they're running.

Okay, what? If there's supposed to be some self-evident distinction here, I'm not seeing it.

You may not shoot someone solely to stop their run. You may still shoot someone who is running, for other reasons (like they are actively threatening lives or grave harm). Running is not immunity for the dangerous.


Posted by: Turgid Jacobian | Link to this comment | 03- 7-10 5:03 PM
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you say "I want to speak to my lawyer, and don't wish to answer any further questions, and want to be explicit that if you ask me any further questions it will be after I specifically requested counsel"

Most of my information comes from reading Homicide, which may or may not be a more accurate source of information (I mean, it's non-fiction, anyhow).

Based on The Wire, I think the correct phrase is "Lawyer, motherfuckers."


Posted by: fake accent | Link to this comment | 03- 7-10 5:09 PM
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Based on The Wire, I think the correct phrase is "Lawyer, motherfuckers."

It depends on whether you are in the HBO part of Baltimore or the NBC part.


Posted by: beamish | Link to this comment | 03- 7-10 5:15 PM
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Oh, that's funny. I'd originally read the second sentence in 45 as: Which is to say you can't shoot someone just because they're running.

That's not what it says, is it. Huh. Maybe it was a typo.

There's a lengthy article in the recent Harper's on the adoption of newish methods of, er, non-lethal personnel suppression (riot control, counter-insurgency) by law enforcement -- methods formerly developed by the military, but now agreed to be of equal value in controlling domestic unrest. Not just tear gas, rubber bullets, and tasers, but things like noise thingies that emit a sonic blast to incapacitate people. The most alarming is development of chemical agents to provide a "calmative" effect: mass dispersion of, in the worst case, opiates like morphine, fentanyl, and carfentanyl. This stuff, and delivery mechanisms for them, are in active development. Hm.

The Harper's article is ... not fully available online.


Posted by: parsimon | Link to this comment | 03- 7-10 5:25 PM
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||

Group projects that involve stuff that you weren't supposed to work on, because others were doing it, but which you need to revise because it's embarrassingly bad, but which you can't call "embarrassingly bad", but which you also probably can't revise without shortening the section significantly, leading to problems reaching the required number of pages, are a real pain in the ass.

|>


Posted by: fake accent | Link to this comment | 03- 7-10 5:56 PM
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||
AAAARRHGHGDLKJKFDSLKFJALKSJFLKJF
ROTTEN CUBE OF PANEEEEEER!!!!!!!!!!!!!!!!!!
I will never recover.
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Posted by: oudemia | Link to this comment | 03- 7-10 6:09 PM
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"Rotten Cube of Paneer" might be a good song title. Or pseudonym.


Posted by: fake accent | Link to this comment | 03- 7-10 6:21 PM
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Better as a pseudonym.* As a song title, you'd just get the same response as what's-her-name who wrote the recent book whose title includes the word "lacuna": all anyone wants to know is what that word means.

* Or not.


Posted by: parsimon | Link to this comment | 03- 7-10 6:36 PM
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A friend totally lost his shit upon hearing a term this afternoon, and he's now convinced he's going to use it as a band name. The term was "Canadian Navy". I'm not sure why he found it so funny.


Posted by: Stanley | Link to this comment | 03- 7-10 6:48 PM
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He should call it "Back Navy." Some Canadians might get it.


Posted by: fake accent | Link to this comment | 03- 7-10 6:50 PM
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9: it worked well. I just mailed in the completed plea form, along with my "ticket" (which is really a court summons), and a few weeks later received a letter in the mail saying the plea had been accepted and telling me what judgment had been given (i.e., what was the fine). Then I paid that, of course. I would guess the risk of them not accepting a plea offered in compliance with their written plea terms is very low. And I doubt hiring an attorney would have produced a better result.

Note that $85 was added to the amount of the fine itself, for court costs.

Also, I'm not always here these days, so this isn't the best way to flag me--email is better.


Posted by: Brock Landers | Link to this comment | 03- 7-10 6:50 PM
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67: OK. Thanks--will advise he do the same. I think we've figured out what the PA equivalent of a "driving abstract" is.


Posted by: JP Stormcrow | Link to this comment | 03- 7-10 6:57 PM
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67 seems unnecessarily confusing. The short answer to 9 is yes, I did the please bargain thing and yes, it worked as advertised. The rest of 67 is elaboration on that point.


Posted by: Brock Landers | Link to this comment | 03- 7-10 6:58 PM
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Rarely has this locution been so apt: No more masturbating to Sir Kenneth Dover.


Posted by: oudemia | Link to this comment | 03- 7-10 7:00 PM
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68: Yeah, I forgot about that--it was easier for me because I happened to have the MA equivalent on-hand anyway, because I'd recently needed it (for unrelated purposes). Whatever organization in PA keeps driving records should be able to get it to you, probably for a moderate fee.


Posted by: Brock Landers | Link to this comment | 03- 7-10 7:01 PM
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65, 66: See, intellectual and/or clever band names are a bad idea. You want something melodic, poetic. Led Zeppelin, see, that was a good band name. It partakes of assonance.

Also band names that consists of the main players' names are fine: Crosby, Stills, and Nash [and Young], that is fine.

I'm not sure what to do with all the "The" band names: The Beatles. The Rotten Paneers? I will be honest: laboring overmuch on a band name seems an exercise in, um, laboring overmuch. If and when it feels right, it feels right. KISS. Right?


Posted by: parsimon | Link to this comment | 03- 7-10 7:02 PM
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71: probably for a moderate fee.

Yeah, only $5. I'm semi-amused at the coincidence. I'm very lucky not to have gotten one up there. My most recent local economy contribution was waiting out an ice storm in an overpriced Holiday Inn Express a few weeks back.


Posted by: JP Stormcrow | Link to this comment | 03- 7-10 7:06 PM
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As for the thread, 4th Amendment law is screwy, because conservatives (who control much of the judiciary) hate giving power to the state (remember these are mostly pointy-headed conservatives, not tea-party conservatives), but they love screwing minorities and the poor. And all these cases put those two things in tension. So they attempt a delicate balancing act, but it's left the law in a bit of a mess. Making sense of the decisions can be tough.


Posted by: Brock Landers | Link to this comment | 03- 7-10 7:22 PM
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I've been thinking recently that it would be fun to be in a band called The Fornicators. And of course, thanks to the intertubes, I now know immediately that the name is already taken.


Posted by: rob helpy-chalk | Link to this comment | 03- 7-10 7:27 PM
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I am unconvinced by 52.

We'll compromise. "Custody" is a legal concept with connections to a physical state of restraint or captivity. It seems that one can be unable to escape captivity without thereby being in custody, after all; why shouldn't we add that you could be in custody even though escape is within your means?


Posted by: nosflow | Link to this comment | 03- 7-10 7:44 PM
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70. Wah!!! a courteous and intelligent customer. (And a fine scholar.) Still, 90...


Posted by: OFE | Link to this comment | 03- 8-10 1:24 AM
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He wasn't taken out by the new Chancellor of St Andrews, was he?


Posted by: OFE | Link to this comment | 03- 8-10 1:32 AM
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70 is so very true. Was he at Cambridge or Oxford before he was at St. Andrews? I remember hearing that he wanted his job back somewhere, and they said "no," so off he went to Scotland.


Posted by: Bostoniangirl | Link to this comment | 03- 8-10 4:20 AM
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He was at Oxford.


Posted by: OFE | Link to this comment | 03- 8-10 4:29 AM
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I just tried to look for Dover's obituary on the Telegraph's web site, which I couldn't find, but I saw that Michael Foot had died.


Posted by: Bostoniangirl | Link to this comment | 03- 8-10 4:30 AM
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conservatives . . . hate giving power to the state

I'm afraid I'm going to have to ask for some evidence here.


Posted by: CharleyCarp | Link to this comment | 03- 8-10 6:08 AM
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83

because conservatives (who control much of the judiciary) hate giving power over themselves to the state, but screw everybody else.

Better?


Posted by: OFE | Link to this comment | 03- 8-10 6:20 AM
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81. I don't think the obits are up yet. But while looking I found this, which is rather gorgeous.


Posted by: OFE | Link to this comment | 03- 8-10 6:28 AM
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52, 76: A friend of mine won the case here establishing that pretrial electronic monitoring (you can live at home, go to work, etc.) is still "custody" in the speedy trial context. Not a 4th Amendment holding as far as custody, but at least some evidence that the concept of "custody" is somewhat fluid.


Posted by: Di Kotimy | Link to this comment | 03- 8-10 7:07 AM
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83: Maybe more like "conservatives hate giving power to the state except when they control the state"?


Posted by: Di Kotimy | Link to this comment | 03- 8-10 7:11 AM
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78: Heh. I have a letter somewhere from him in which he discusses how dildos were painted in ancient Greece and the popularity in our day of blue dildos. (Also love: Some American grad students were being introduced to him. One says something like "Oh, Professor Dover, it's an honor." A second corrects him, "It's 'Sir Kenneth,' not 'Professor Dover'!" Dover himself interjects, "No American should call me Sir Kenneth! You won a war for the privilege not to!" Gracious! And nicely zings the suck up!)


Posted by: oudemia | Link to this comment | 03- 8-10 8:35 AM
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I'm fine with 'conservatives hate giving the state the power to help poor people' but I'm not sure I'm ready to take any more of a step than that.


Posted by: CharleyCarp | Link to this comment | 03- 8-10 11:25 AM
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For OFE and BG, the Dover obit in the Guardian and the Telegraph.


Posted by: oudemia | Link to this comment | 03- 8-10 12:37 PM
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parsimon: The most alarming is development of chemical agents to provide a "calmative" effect: mass dispersion of, in the worst case, opiates like morphine, fentanyl, and carfentanyl. This stuff, and delivery mechanisms for them, are in active development. Hm.

Morphine? In that case I'm gonna riot every day.


Posted by: W. Kiernan | Link to this comment | 06- 4-10 3:18 PM
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