Barn Sour

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From EquiMed:

Barn sour is a term used by horsemen to describe a horse that doesn’t want to leave home, presenting resistance or complete refusal if you try to ride him away from his comfort area.

Horses become barn sour for various reasons – usually human error in handling or training, not understanding how the horse’s mind works.

As a herd animal, the horse prefers to be with his buddies. He may be reluctant to leave them unless he is well-bonded with the human who is leading or riding him.

Link to the rest at EquiMed

While growing up on ranches and farms (“ranch” in the Mountain West = “farm” in the Middle West), PG often heard his father use the term, “barn sour.” Contra the definition above, PG’s father applied it to horses, cattle and many other domesticated animals. (Pigs, the most intelligent farm animal, are their own separate thing entirely.)

Basically, per PG’s father, when an animal was barn sour, it was failing to thrive because it had been locked inside a confined space for too long and needed to get out in the open air where it could talk to its buddies.

PG decided he was barn sour from being confined to his Coronavirus hermitage for too long. Mrs. PG is always excellent company, but still. So, PG arranged a lunch with a small group of attorney buddies yesterday. (Nobody was contageous, the restaurant had half its tables and booths blocked off, etc., etc.)

We had a wonderful time and (typically for attorneys) talked up a storm. PG learned that nobody likes Zoom Court, but it does fulfill legal requirements and can move some cases along the path to conclusion.

However, Zoom jury trials have not been approved locally, especially in criminal cases where, in the United States and elsewhere, the accused has lots of constitutionally-guaranteed rights and appellate courts will reverse and remand for a new trial if those rights are infringed, sometimes by even a teeny-tiny bit.

The authors of the US Constitution made no mention of Zoom trials (at least in writing).

One of our number, a small woman who prosecutes sex crimes, including sex crimes involving juveniles, has three back-to-back jury trials scheduled as soon as flesh-and-blood judges and juries can come back to the courthouse. In PG’s experience, judges and attorneys (on both sides) dread trials involving sex crimes. A bloody auto accident damages trial is easier to deal with emotionally.

For those who have not experienced the misfortune of practicing law, a criminal jury trial is a legal proceeding in which the defendant’s constitutional rights are most carefully protected. One misstep by whoever is acting on behalf of the state or federal government trying to send bad guys and bad gals to prison and it is quite probable that a mistrial will be declared by the judge.

A mistrial means that the trial has to start all over again from scratch with a new jury. Given how much time jury trials take and how crowded criminal dockets tend to be in many places, a new trial may not be possible for several months. If the victim of the crime has testified before a mistrial is declared, the victim has to tell his/her terrible story all over again in a public trial and has several weeks or months to anticipate doing so.

Defense attorneys (who are ethically obligated to put forth their best efforts on behalf of their clients, regardless of what their personal feelings may be or whether they have advised their clients to accept the offer of a plea bargain instead of taking their chances at a trial before a judge and jury that could easily result in a more severe penalty) are almost always happy to have a mistrial (they’re the ones who will make a motion for a mistrial unless the judge decides one is necessary on her/his own) because witnesses may move to distant lands for good or bad reasons and, sometimes victims tell the prosecuting attorney/district attorney/state’s attorney that they can’t stand the idea of sitting in court talking about the worst day of their lives again.

On many more than one occasion, a mistrial results in a plea bargain on better terms (from the defendant’s perspective) than any plea bargain offered by the prosecutor prior to the mistrial or that a judge is likely to order if a jury deems the defendant to be guilty.

Another factor is that, despite careful preparation on both sides, it is quite possible that surprises will happen during a trial. Witnesses will say surprising things when a lot of strangers, including an intimidating judge, are watching them or something different than what they told counsel during a pre-trial meeting them to go over their testimony, etc., etc.

PG provides this lengthy explanation to provide a bit of perspective about the pressures his friend who prosecutes sex crimes is feeling. PG understands from other attorneys that she is a fierce courtroom presence who is noted for meticulously dotting her legal i’s and crossing her legal t’s (a practice which ultimately results in her having to conduct fewer trials than she would if she weren’t so good at her job.)

Usually, this woman’s criminal trials are separated by at least a few weeks, so the specter of carefully preparing for three jury trials in a row with little time in between each would be intimidating for anyone.

However, in the fashion of almost all social gatherings of attorneys which PG has attended, the lunch conversation consisted of talking shop in a light, witty and intelligent manner that certainly lifted PG’s spirits and, he hopes, those of the other attendees as well.

The lingering effects of lunch beat back barn sourness for PG for a few hours, which was fortuitous since he had a great many complex tasks to complete.

Which is why he didn’t have the time to post yesterday.

6 thoughts on “Barn Sour”

  1. I don’t want to leave the barn. It is nice and quiet for writing, has minimal time-limited social encounters, and is safe from raging viruses (vira? virii? – Google is not definitive).

    I do need to get out occasionally, but what I really want to do until there is an effective vaccine is figure out how to fight the brain fog, and finish what I’ve been writing since 2000.

    There is an episode of The Twilight Zone about a man whose wife doesn’t let him have enough time to read. When the end of all things comes, and he is the last man on Earth, his thick glasses get broken – and he can’t read the books. That is how the brain fog is affecting me. All this time – no can write. Sigh.

  2. Let’s spare a thought — and perhaps a nice hot mash and some extra currying — for the judges who are going to be forced by various speedy-trial provisions to hear these cases back to back to back, without as much dubious relief of attorneys arguing over privacy rights in discovery or whether a particular issue predominates. I’ve already seen this problem arising in local courts in three states where I’m doing consults — judges with long histories of allowing oral argument on important-to-the-parties motions are already saying those same motions will be decided on the papers (the briefs and other written record), are having their clerks question parties more aggressively about purported “emergency motions,” and so on.

    For those who don’t know, defendants in criminal actions have rights to speedy trials; in other instances, there are statutory limits on how long a civil action can remain in pretrial mode (in California state courts, for example, a civil case must be brought to trial within five years of filing or it’s subject to dismissal). And everyone is shooting in the dark on whether COVID-19 delays will toll (extend) those deadlines, because “public health crisis” and “communicable disease” are not on the traditional lists of emergencies that do so. I would hate to be a party or judge trying to proceed in good faith rather than strict compliance… and courts can’t give it (case or controversy requirement, certainly federal and equivalent in most states), legislatures can’t always give it (legislature can’t legislate a constitutional speedy trial extension), and so on.

    PG’s potentially overstressed colleague is going to be dealing with an overstressed judge. And that never goes wrong (and don’t get the idea that I’m blaming the judges… I have some insight from spending the better part of a decade as a commanding officer).

    • Hmm. Other than provisions by statute, what is the definition of “speedy”? The Federal Constitution certainly does not have one. Federal statutes do – but those are subject to legislative action, or even executive, for broadening in a “crisis” situation. I remember reading back when Hurricane Hugo caused widespread flooding in Texas some years ago, the court calendars were delayed by several weeks. (I don’t know whether any attorney filed for dismissal, however. I think I would have heard if massive numbers of the charged were released, though.)

      I do agree about cranky judges, though. Add to that everyone in the calendaring offices – they are right on the verge of complete insanity in normal times.

      • I’m away from my references in lockdown, so this is a bit vague. Although the Constitution (6th Amendment, 14th Amendment) does not explicitly and clearly define what is a “speedy trial” (just like it defines nothing about any right to privacy in communications other than “papers”), the Supreme Court has at least provided a framework. The federal Speedy Trial Act was adopted to implement that framework and ensure compliance; the state acts that followed often did so explicitly, but sometimes relied upon state constitutions (several of which do specifically define the limitation).

        My point was that this is a hard one to answer… and it’s made much harder by the fact that this was not a recognized right with a recognized remedy a hundred years ago when we last had a nationwide medical emergency not bound up in war. The analogy to civil contracts, and especially to time-sensitive civil contracts (like — at least supposedly, and I’ll pause while you wipe that tasty beverage off your keyboard — publishing contracts that have specific deadlines for publishers to Do Something in them) and the force majeure clause that excuses timely performance, and even the Uniform Commercial Code and Restatement of Contracts (2d) discussions of general principles of force majeure. Sure, they consider fire, and war, and earthquakes, and labor unrest, and such; they don’t, however, consider public health crises.

        As accurately (if somewhat overdramatically) portrayed in Frank Bormann’s comments to Congress on the Apollo One fire in From the Earth to the Moon, that’s a failure of the imagination. Which, given that lawyers generally succeed by proving that someone else (an Authority) said something almost identical so long ago that nobody can question its wisdom, is all too apt.

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