blind insight

Justice may be blind, but she ain't swift.

The wheels of justice are turning veeeeeeeery slowly these days, at least in the habeas corpus department. One of my cases has been languishing in the judge's chambers for nearly a year. After my repeated efforts to get the state court record, the judge finally entered an order last month instructing the state court to send over its file to the U.S. District Court. Usually, the state courts respond promptly to such orders. This time, though, weeks went by without any state documents arriving in the federal court clerk's office.

Finally, on Friday, I spoke to the state court. After initially claiming to have never received the federal magistrate judge's order, the clerk finally told me that she'd sent two envelopes of documents to the federal court the week before. I inquired as to how much material she'd sent to the court, and was told it was only a "couple inches" worth of paper. I expressed some surprise, as this case included a fairly lengthy trial, and asked whether this included the transcripts. "Transcripts?" the clerk replied. "The order doesn't say anything about transcripts."

The order does, however, refer instruct the state court to send all records in the case to the federal court. Yet somehow, the state clerk interpreted "all" to mean "some stuff we have but not everything." After a bit of cajoling, she agreed to look for the transcripts, and this morning called to tell me she had put them in the mail today.

This, however, did not end the story. I called over to the federal court clerk's office this morning, in search of the files that supposedly were mailed on January 26. As we'd been told on Friday, they don't have anything in this case. I then called up to the magistrate judge's chambers, and after being bounced around to various people, finally learned that the records had been sent directly to the judge (contrary to the order, which expressly directed the state court to send them to the Clerk of the United States District Court), and were sitting in his chambers. The judge's staff promised to send the files down to the clerk's office, though I still don't understand why they didn't do this two weeks ago when they originally received the record. But finally, some time this week, I will have access to the state court record in this case and can begin preparing a brief in support of my client's habeas petition.

This case illustrates one of the most frustrating aspects of habeas practice: though these cases raise serious questions about the constitutionality of the petitioner's conviction and continued incarceration, the courts perpetually push them to the bottom of their dockets and seem perfectly content to adjudicate them at a glacially-slow pace. In this case, my client is a 25-year-old kid serving a life sentence. Every year that his case drags on further erodes his youth. And even if his petition ultimately fails, the attenuation of his case seems to be hindering his efforts to achieve closure and accept responsibility for his actions.

In 1996, when Congress changed the habeas laws to restrict inmates' ability to bring federal petitions, the purported intention of the law was to speed up the process, particularly in death penalty cases. I haven't seen any empirical studies demonstrating that this "hurry up and kill 'em quicker" law actually has shortened the life span of habeas cases that manage to satisfy the stricter exhaustion and timeliness rules. What I do see, though, is that the combination of a stricter statute of limitations and tight restrictions on successive petitions prevents many state inmates with potentially meritorious claims from ever presenting those claims to a federal court. I'm still trying to understand how any of us benefit from a system that allows serious constitutional violations to go unremedied.

The children are the future.

Earlier this week, I took a day off to ski with Steve. We had to leave a bit early to ensure that I could get home and showered in time for my tutoring session at 6:00. But on the way home, I checked my voicemail and found out that the kid I tutor had been suspended from tutoring for a week for stealing snacks from the program. Selfishly, I was relieved not to have to race to tutoring, and to be able to relax with Steve and see a movie (the Cooler -- most enjoyable and well done).

Yesterday, though, I called the tutoring director to chat with him about my kid. I've participated in this tutoring program for about four years, one evening a week at the elementary school around the corner from my house. This year, I've been tutoring Carlos, a twelve-year-old fifth grader who seems to have some innate intelligence, but has a rebellious attitude and resists the process of learning.

The fall semester went fairly well. Carlos seemed to be excited about learning strategies for solving math and spelling problems, and I thought we were developing a nice rapport. But since the new semester began, he's been impossible to work with, and has begun to treat me with blatant disrespect. Every Tuesday night, we go through the same routine. Carlos refuses to work, pretends he can't do simple math or spelling, and tries to see how far he can push me by putting his head down or holding his paper in front of his face so I can't hear him or read his lips. I've missed a few weeks this semester because of work obligations, and the lawyer who runs the program has tutored Carlos on those nights. When I spoke to the director yesterday, he told me that he's had similar problems with Carlos, and he expressed surprise that Carlos could not even complete basic subtraction problems. Yet I know Carlos is capable of doing simple math, since in past weeks, he's demonstrated his ability to multiply two- and three-digit numbers together. Thus, it seems his attitude has continued to deteriorate.

The director asked me whether I want to tutor a different student for the rest of this year. For selfish reasons, I'd much prefer to work with a child who wants some help with his or her schoolwork, but I can't bring myself to abandon Carlos quite yet. His teacher obviously has written off Carlos as a troublemaker, since the teacher can't even be bothered to give me some guidance for our tutoring sessions (as the teachers are expected to do by putting materials into the kids' tutoring folders each week). And Carlos's mother seems to have given up on him as well, since she's busy with several younger children at home and (according to the director) pays no attention to Carlos's school work or even to his comings and goings from the home.

At twelve, Carlos is just beginning to show the volatility of adolescence. He's testing his limits, and I think he's a little bit frightened to be finding those limits so easy to push. During each of our last few sessions, in response to his misbehavior, I've told him firmly and unequivocally that he must treat me with respect and that he must work on his assignments or he will not be able to remain in the tutoring program. Each time, his expression has changed from one of bravado and impudence to one of crestfallen contrition. I think he's afraid of being kicked out of the program, since it seems to provide him with some necessary structure.

So I'm going to give him another chance, and probably another chance after that. I'm not terribly optimistic that I'll be able to help him learn anything, or to flip the switch that will turn him on to learning, but I can't give up on him yet. Carlos is already at risk to end up in trouble. If all the adults in his life send him the message that he's a bad kid and unworthy of their attention, he's going to prove them right by making bad choices that will cost him any chance he has in life. I don't want my own selfishness, my unwillingness to devote one hour of my week to a less-than-enjoyable exercise, to be responsible for such a tragedy.

Three random comments.

Well, the boyfriend did, in fact, enjoy a perfect powder day. I'd be insanely jealous, except that I was the one who told him to blow off studying for prelims and go skiing, so I have only myself to blame. On the other hand, I have a whole weekend of snowy fun ahead of me -- backcountry on Saturday and XC on Sunday -- so I shouldn't complain. Meanwhile, Steve will be freezing his tushie off in a pre-Denali winter camping expedition. I certainly don't envy him that particular pleasure.

Little else of moment to report. The Tenth Circuit has granted my motion to stay the Mariel Cuban case, so it's time to sit back and wait for the Supreme Court to tell us whether the Mariels may be detained indefinitely. Crossing my fingers, but not hugely optimistic.

And on an entirely unrelated note, I have decided that those little yellow "wet floor" thingies are my personal nemesis. If I ever find the brilliant legal mind responsible for convincing building managers everywhere that these insidious devices are the key to freedom from slip-and-fall liability, I'm going to force him to wear blinders and dark sunglasses and try to avoid plowing into the damn things.

Hard at work or hardly working?

More later, I hope, but here's what I've just deduced:

1) Sitting in one's office while one's boyfriend enjoys a perfect powder day is downright torturous.

2) The aforementioned torture inevitably leads to a frenzy of ski-getaway planning in the vain hope that one's free days actually will coincide with the ever-elusive powder dump.

3) Ski-getaway planning is an obsessive and time-intensive activity that should not be combined with any attempt to accomplish gainful labor.

4) If one is ever to accomplish gainful labor, one must eliminate all access to vacation-rental websites (e.g., VRBO) and other distracting enticements.

5) Pulling the plug now . . . . OUCH!

Scenes from a funeral.

I just got back from a funeral for the mother of one of my colleagues. I didn't know the woman who died, and I'm not terribly close to her daughter, but it seemed appropriate to attend. The funeral was held at a beautiful Catholic church in southeast Denver, and was pretty well-attended, especially for such a messy, snowy day.

Because I just finished reading The Da Vinci Code* on the plane home from New York, I found myself looking around the church and recognizing various symbols. I was particularly intrigued by the "balanced" cross on the priest's robes (which plays such an important role in the novel) and got caught up staring at it. I also was fascinated by the intensely ritualized service, which proceeded without any explanation to the uninitiated as to what was happening. One of my co-workers commented afterwards that at the Jewish life-cycle events she's attended, the rabbi explains everything, but at Catholic events, the priest never does. Yet because I didn't completely understand what was happening, I found myself focusing intently on the various elements of the rituals and trying to deduce their symbolism and significance.

I've been talking a lot about death recently with my friend Rebecca, whose grandmother recently died, and with Steve, whose grandfather is dying. The funeral today helped me crystalize some of the thoughts we've been sharing about death and the ways we process it within our families, cultures, and religions. The priest today spent a lot of time shouting at us about fire and brimstone, which I found terribly inappropriate, but he also spoke kindly and comfortingly about how lucky we are to share our lives with those we love, and that while we should comfort the family, who is suffering in mourning, we also should remember that their loved one died after a long and fulfilling life and is now freed from her own suffering.

The priest also spoke about the deceased woman having joined the Holy Father in Heaven. While this concept is utterly lost on me, another of my colleagues commented that the metaphor of God as the Father is powerful and comforting because it is a way of explaining the unknowable in the language of the familiar. I hadn't really thought about this before, but it makes sense that humans have long conceptualized the divine as parent or ruler, since these are readily understandable figures of authority and respect.

Listening to the priest speak warmly and personally about my colleague's mother also made me realize that one benefit of joining a spiritual community is to have someone who actually knows you officiate upon your passing. While this revelation wasn't enough to make me rethink my recent decision to terminate my synagogue membership, it did offer food for further contemplation.

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*I liked The Da Vinci Code quite a bit. I found the story and the history lesson deeply engrossing, and can't wait to go back to Europe to see some of the paintings and buildings discussed in the book. But Dan Brown's pedestrian writing style and sloppy loose-end tying detracted significantly from the book's overall quality, and the predictable and anticlimactic ending left me disappointed.

Back from the Big Apple.

I've been thinking about how to sum up the weekend in New York. Not surprisingly, the first word that comes to mind is "cold." But the trip has left me with a warm, fuzzy feeling that is not simply coming from the fabulous shearling coat my grandmother foisted upon my shivering self and generously allowed me to appropriate permanently. No, the glow results from the wonderful experience of "meeting" for the first time a group of people who truly are old friends.

From the first few moments of our initial rendez-vous (at a trendy bar on the Upper West Side) to a final goodbye shared with Kirstin (who was changing planes in Denver), our gathering was filled with camaraderie and easy conversation, empty of awkwardness or "getting to know you" pleasantries. And there was something powerfully liberating about roaming the City with a crowd of fellow deaf and hard-of-hearing people, laughing together as we shared the hassles of communication and navigation with which we each wrestle daily on our own.

I also wandered around New York on my own a bit, zipping around on the subway and strolling along the frozen streets. While I have no desire to live in New York, and find its concrete intensity draining after a while, it is the perfect weekend destination, particularly for someone who knows the City as well as I do. Whenever I spend time in New York, my senses are heightened by a barrage of visual, auditory, and olfactory stimuli. And for a non-driver like me, New York offers complete independence. On Saturday night, we left the apartment of one of the NY-based DeafGAers well after 2:00 a.m. After saying goodbye to the rest of the group, I walked alone the few blocks back to my grandmother's apartment. Even at that hour, the streets were well-lit and busy, as taxis whizzed down Broadway, elderly women in fur coats walked tiny dogs, groups of boisterous 20- and 30-somethings spilled out of the bars, and a black-hatted Hassidic man hurried past me carrying the Sunday New York Times. It was hugely empowering to be able to walk home alone at such an hour of the night without fear of darkness or danger.

Appropriately for a New York weekend, most of my time was spent eating. I enjoyed greasy fries and chicken fingers at Madison Square Garden while watching the Buffalo Sabres (and my favorite ex-Av Chris Drury) pound the NY Rangers. I shared tasty sushi in SoHo with the rest of the "girls" on Saturday afternoon (the boys ate pizza). I had eggs and a bagel at a classic Greek-owned diner for brunch on Sunday. And on Saturday night, my dear friend Karen and I had an exceptionally good meal at 50 Carmine, a new restaurant in the West Village that recently was profiled in the New York Times Magazine. On our way to the restaurant, I picked up some tasty gifts for Steve (and enjoyed some tastes myself) at renowned fromagier Murray's Cheese and olive-oil gourmand Oliviers & Co. As far as I'm concerned, New York is a gastronomic paradise, and every time I visit I wish I was a six-foot-seven NBA player capable of consuming the copious calories that call my name from every corner.

In addition to gathering with my DeafGA buddies, I spent some quality time with my grandmother, particularly over coffee and toast in the mornings. As always when I am with her, I was floored by her vitality and struck by how very much of her personality I see in myself.

And now I am home, where the sun is shining and the mountains sport a dusting of fresh snow. It's not exactly warm out here, but this morning's chill felt almost balmy after a weekend of 20-degree weather in New York. I'd forgotten how insidiously that east-coast cold creeps under your skin and chills your bones. That part of the weekend I won't be missing!