Karl H. Timmerman M.A.J.D. 2003
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MoBar Solo and Small Firm Internet Group

OCTOBER 31, 2003
Greets and Huggers.  Posted the evening of October 31, 2003. Happy Halloween!!   http://wilstar.com/holidays/hallown.htm     (To the 16 - 20 folks that take the time to read these Ramblings   :)    All across my America tonight, Mom's and/or Dad's are taking their little "ghosts" and "goblins" out "trick or treating" ......   hehehe .... extorting yummies from their friends and neighbors.  In the city, little plastic costumes like "the Hulk", "Spider-man", "Spyro the Dragon", "Little Pilot" and "Little Flight Attendant", (didn't notice a "Little Lawyer")  .......   $19.95  from Walmart,  are very popular.  Few parents make their own.  Out here in Holden, the country, most folks make Halloween costumes for their kids  ....  they can get real creative:  "Little Mr. Corn Cob", "Little Mr. Carrot", "Little Ms. Tomato", "Little Mr Moonshiner", "Little John Deer" and my personal favorite, "Little Mr. Chewing Tobacco Tin".  (Heard "Little Mr Neo-Nazi" is popular with some folks in the South).  I think folks out here view the world differently  :)

John Clayton Smith was executed this week. State v. Smith, 32 S.W.3d 532,  (Mo. 2000)  Did he deserve to die? If an "eye for an eye" is the test:  without a doubt. My dear friend David Browning opined that there is a difference between the "ethics" of executing JCS and the "morality" of doing so. Maybe so.  There is no question that executing JCS was immoral:  was it "justifiable/ethical"? If by definition,  the taking of life is only "justifiable/ethical" to preserve/save life  ...  No.  It was not, (JCS posed no threat to life, serving life, in prison).  I have never said that "morality" and "ethics" are the same thing.  They are two different things, with one being a subset of the other. Perhaps I view things differently:  isn't "morality" the ultimate truth/righteousness?  ....  while "ethics" are the implementation of that "truth/morality"?  Since that implementation is by "man"  .... "ethics" are inherently fallible human interpretations of "truth/morals" and therefore subject to "error".  (Ergo, the human need for forgiveness by the "ultimate morality/truth"  ......  that, which some call "God").  The real issue in this case was not the execution of JCS ... the "death penalty" remains indefensible ... the real issue  ... the REAL injustice in this case  ....  is our Supremo's sanctioning the actions of the prosecutor.   While ignoring the wisdom propounded by the Supreme Court of Washington State, in  State v. Stenger, 111 Wash.2d 516, 760 P.2d 357 (1988),   "The factual information the prosecuting attorney obtained from the accused by virtue of the prosecuting attorney's previous legal representation of the accused, including information about the defendant's background and earlier criminal and antisocial conduct, is information closely interwoven with the prosecuting attorney's exercise of discretion in seeking the death penalty in the present case." Smith, supra, page 543   ......   "our"  Supremo's instead, concluded:  " ...  This Court is not persuaded that it should abandon Rule 4-1.9, under which the various representations that allegedly result in a conflict of interest must be connected by something substantially more than the prosecutor himself if they are to be substantially related.  A focused approach, where the court examines the relevant facts of the case in order to determine whether the various matters are substantially related, is preferable." Smith, supra, page 543.  In his dissenting opinion, Justice Wolff  with Justice White concurring wrote:  "In a fundamental way, the principal opinion damages the integrity of the legal profession.  There is no dispute that the prosecutor in this case had represented Smith in two previous criminal cases as his defense attorney.  Moreover, the prosecutor--Smith's erstwhile defender--used one of those convictions in persuading the jury to impose the death penalty on his former client. If this were simply a case where the prosecutor is using the prior conviction, a matter of public record equally available to all prosecutors, I could be tempted to join in the principal opinion. But in this case, this prosecutor's job was to determine whether to seek the death penalty.  The prosecutor is the first line of decision-making on this point, and without his affirmative decision, no death penalty is possible.  The determination of whether to seek the death penalty is based not just on the facts of the crime, the law, and the circumstances of the defendant's life that are matters of public record.  It is in essence a judgment on the over-all character of the defendant, who happens in this case to have been the prosecutor's former client.Smith, supra, page 559.   I'm curious ..... share with me, just how/will/can a trial court determine whether a given prosecutor, who exercised his/her discretion to seek the Death Penalty, in a case involving a former criminal client, exercised that discretion independent of facts gleaned from that former representation?   It can't.    Our "Family" member,  Gary Brotherton 
http://www.karltimmerman.com/sfiga-b.html fought the good fight in defending JCS .... I dip my FIN to him. "Gary, my dear friend, you fought the good fight!  Well done.  Well done, indeed.   Now, just focus on the fact that  .... "grace" is achieved by fighting the good fight  .... "fighting the good fight" is what counts:  NOT winning or losing". 'Nuff said.

Read the "solicitation" posts, (a person gets a speeding ticket and is inundated with letters from attorneys suggesting they need legal assistance),  with interest. How is this any different than "Junk Faxes", "Spam" or "TeleMarketers"?  I appreciate the 1st Amendment issues but fail to see how an attorney sending unsolicited letters to folks who have been cited for an ordinance violation or arrested,  impinges on that attorney's "free speech". Aren't our "civil rights" routinely "balanced"?  Isn't this a balancing of "privacy" and "speech". Share with me why this type of "marketing" isn't offensive, demeaning to our profession and does not cause more harm than good. I wonder how many lives have been negatively impacted by a "helpful" solicitation letter,  a letter read by a spouse .... after her husband has been busted for  ....  hehehe  ...... "solicitation"? Time for our Supremo's to make a change.

On Monday Night, watched a show on ABC about overweight kids, "Fat Like Me".  Broke my heart to watch. Too many of our children are overweight. They are taunted, picked on and ridiculed by their schoolmates, their friends .... by their families:  they suffer the pain of being "different".  One quote stood out because it cut my heart:  "They [overweight kids] are as SAD as children undergoing chemotherapy"  .....   I cannot fathom how sad that could/would be.  We are allowing our children to eat themselves to death.  Is there a magic pill for childhood obesity? ....  DOH!!! .....  Yup!!!  It's called parental awareness!  If  YOU are overweight ... what would possibly make you believe your kid isn't or soon won't be? Wanna make a difference in your kid's life?  ......  save your kids life?  Make a change in YOUR life.  Get trim .... set the example.  More important  ....  hehehe  ......  I have it on good authority that there is no greater joy in life than living long enough to remind your children, on a daily basis, about THEIR mistakes ...... I know Alan Steinberg lives for these "Kodak" moments ....  hehehe ........  and also feel sure .....   Les hates them just as much!!    :) 

   "BMI" .... Body Mass Index. It is supposed to be an indictor of how overweight you are.  (Normal weight = 18.5-24.9, Overweight = 25-29.9, Obesity = BMI of 30 or greater).  We need more research.  My "BMI" at 6' and 210 pounds is 28.5:  Fat Boy!!  I'm supposed to weigh around 170.  Got news .... at 170, I would look like a concentration camp survivor.  Time to update the data baselines.
http://www.nhlbi.nih.gov/guidelines/obesity/bmi_tbl.htm And while "they" are at it .... find Sadam, Bin Ladin and the weapons of "mass destruction".  :)      ..... er ....... and most important  .... find a viable substitute for potatoes! 

Geez .... watched a lawyer getting shot on the evening news!  ......  over a damn probate case no less.  Eight shots ... looked like a revolver, (must have been a small caliber).   The lawyer was the perp's sister's attorney.  Go figure.  Usually ... only divorce lawyers get shot.  (    <Whispering to Tom Glick>   .....  Dude!!!  Get a "flack vest"!!!)  As an aside to Randy Head  .....  I noticed from the tape .... the perp did not have "bare arms"  ....  guess he didn't need to avail himself of the "right"   :)

Sitting here tonight editing these Ramblings, sipping on some BBB and thinking about how important folks like Gary Brotherton and Sherrie Hansen,
http://www.karltimmerman.com/sfigh-k.html really are.  By the Grace of God, they have been given, (like you and I), the opportunity to make a difference. They ARE making it.  Are you?  Or   .....  are you so wrapped up converting your law degree into cash .... you just don't want to take the time?  (Don't tell me you don't HAVE the time!!)  I decided to become a small town country lawyer after seeing the movie "To Kill a Mocking Bird":  Atticus Finch http://www.sevillepublishing.com/seville/pages/atticus.html remains in my mind ..... a most worthy role model.  ("Law, at its best, is a calling that asks us to transcend self-interest and spend our lives in service to community." Robert F. Kennedy, Jr.)    So  ..... why is it YOU decided to practice law?  Make the time to MAKE a difference.

It is dark outside and chilly  .....  brought wood in today for the fireplace at Ft. Timmerman
http://www.karltimmerman.com/house.html  Don't know why .... but "the Damn Cats" ...  "the Damn Yorkies" and Daisy are all parked in Susan's office ...   guess they know how special Susan really is  :)  Don't have the heart to tell them .....  I  ...... will sleep with her tonight  :)   Only one of our men and women in uniform was lost today .....  <sigh> ........  Tonight, as I drift off to sleep, with a handful of Susan ..... I will say a prayer for him and his family  ....  for our America  ..... for you ..... and for Susan and I.  Be and sleep well:  the best there is, remains on watch.  If my post offends, I apologize ..... that is not my intent.
Karl (the dumb ole country lawyer from Holden, Missouri)