May 21, 2019

Archives for February 25, 2016

The Anti-Motivation Strategy (Part 5): Meet John Pepper, the Unmotivated Miracle Walker

Employee-Motivation

We’ve seen earlier in this series that motivation lasts maybe 2 or 3 days, that we have to stay motivated to be motivated, and that the way we usually practice motivation is to trigger the fight or flight wiring in our brains, which keeps the stress hormones adrenaline and cortisol flowing. We can get short term results that way, but in the long run chronic stress hurts: eventually we exhaust ourselves trying to stay pumped up, lose effectiveness, deplete reserves, and impair our long-term health.

In other words, motivation practiced that way is like a well we have to keep filling in order to order to get any water out.

Well-Rhodes

Hmmm… that’s not much of a well.

Swingline

There is a better way. We can tap a spring instead, where the water comes up from way down deep, pure and refreshing. Do that, and we don’t need motivation anymore. Let’s go looking for that spring. Here’s our first stop:

Meet John Pepper: The Conscious Walker

Brain-Healing

Norman Doidge, M.D. introduces John Pepper this way, in his book The Brain’s Way of Healing:

“My walking companion, John Pepper, was diagnosed with Parkinson’s disease, a movement disorder, over two decades ago. He first started getting symptoms nearly fifty years ago. But unless you are a perceptive and well-trained observer, you would never know it. Pepper moves too quickly for a Parkinson’s patient. He doesn’t appear to have the classic symptoms: no shuffling gait, no visible tremor when he pauses or when he moves; he does not appear especially rigid, and seems able to initiate new movements fairly quickly; he has a good sense of balance. He even swings his arms when he walks. He shows none of the slowed movements that are the hallmark of Parkinson’s. He hasn’t been on anti-Parkinson’s medication for nine years, since he was sixty-eight years old, yet appears to walk perfectly normally.

“In fact, when he gets going at his normal speed, I can’t keep up with him. He’s now going on seventy-seven and has had this illness, which is defined as an incurable, chronic, progressive neurodegenerative disorder, since his thirties. But instead of degenerating, John Pepper has been able to reverse the major symptoms, the ones that Parkinson’s patients dread most, those that lead to immobility. He’s done so with an exercise program he devised and with a special kind of concentration.”

Most people’s walking movements are unconscious. That’s why Sienna Miller can talk on her cell phone and walk the dog at the same time. (So can you, but maybe not as stylishly.) For all his years of practice, John Pepper hasn’t gotten to that level. Instead, he walks and controls his tremors consciously. His mind has to stay on the job; if he gets distracted or takes a day or even a moment off, his Parkinson’s symptoms come back.

He must be a really motivated guy!

No he’s not. In fact, if John Pepper had to rely on motivation, he wouldn’t be walking at all. Motivation won’t help John Pepper, because it’s just not there. Parkinson’s Disease has taken it away.

Then how does he do it?

We’ll find out next time.

Rhodes_4This second collection of Kevin’s blog posts focuses on the future and culture of law, including insights on technology, innovation, neuro-culture, and entrepreneurship. Extensively researched, visionary, and written in a crisp, conversational style by a man on a mission to bring wellbeing to the people who learn, teach, and practice the law.

 

 

 

Colorado Judicial Ethics Advisory Opinion 2016-01 Released

On Wednesday, February 24, 2016, the Colorado Judicial Ethics Advisory Board issued C.J.E.A.B. Opinion 2016-01. This opinion addresses whether it is appropriate for a judge sitting on a nonprofit board to personally write or call donors to thank them for their contributions. The requesting judge asked the Advisory Board to consider if such communication would be considered fundraising in violation of the Colorado Code of Judicial Conduct.

The Advisory Board considered applicable provisions of the Code of Judicial Conduct and determined that, in cases where the judge is not soliciting further donations, implicitly or explicitly, it is acceptable for the judge to personally thank donors for their contributions in her role as board member of the nonprofit organization.

The Colorado Judicial Ethics Advisory Board is a committee of the Colorado Supreme Court consisting of judges and non-judges who provide ethical advice to judicial officers who request an opinion on prospective conduct. There are seven committee members: four judges, one lawyer, one non-lawyer citizen, and one law professor. Any Colorado judicial officer may request an opinion. Requests may be submitted to any member of the Advisory Board or to Christine Markman, staff attorney to the Colorado Supreme Court. Requests may be submitted on the Advisory Board’s form, JDF 2.

The full text of C.J.E.A.B. 2016-01 is available here. All of the C.J.E.A.B. opinions are available here.

Tenth Circuit: Confrontation Clause Only Implicated when Statement Admitted to Prove Truth of Matter Asserted

The Tenth Circuit Court of Appeals issued its opinion in United States v. Ibarra-Diaz on Monday, November 9, 2015.

An undercover detective with the Wichita Police Department set up a methamphetamine purchase from Jesus Ibarra-Diaz through a confidential informant (CI). The detective met Ibarra-Diaz and his girlfriend, Ana Valeriano-Trejo, in a shopping mall parking lot and got in their vehicle. Ibarra-Diaz indicated that another accomplice, Ricardo Estrada, would bring the drugs. When Estrada arrived, he recognized the detective and informed Ibarra-Diaz and Valeriano-Trejo that he was a cop. The detective got out of Ibarra-Diaz’s vehicle and confronted Estrada, and Ibarra-Diaz started to drive away, at which point police officers surrounded his vehicle and arrested him and Valeriano-Trejo.

After searching the two vehicles, officers found suspected methamphetamine in the wheel well of the vehicle Estrada was driving. Estrada, who was in a patrol car, voluntarily spoke to officers, telling them that there was over a pound of meth at the house he shared with Ibarra-Diaz and Valeriano-Trejo. Officers obtained a warrant and searched the residence, finding several pertinent items, including approximately one pound of meth in a container in the laundry room. A federal grand jury indicted the three co-defendants on one count of possession with intent to distribute a substance containing 50 grams or more of methamphetamine. Ibarra-Diaz exercised his right to a jury trial. He was convicted and sentenced to 188 months’ imprisonment.

Ibarra-Diaz appealed, raising several contentions of error. First, he argued that the district court violated his Confrontation Clause rights when it erroneously admitted several hearsay statements. Next, he argued he was denied a fair trial when the detective was allowed to present inflammatory testimony. Third, he contended that certain evidence rendered the indictment duplicitous and therefore denied him a fair trial. Finally, he contended there was insufficient evidence to support his conviction. The Tenth Circuit rejected each argument in turn, noting as an initial matter that all of Ibarra-Diaz’s arguments except his sufficiency challenge were raised for the first time on appeal and were subject only to plain error review.

Ibarra-Diaz argued that the district court erred in admitting through the detective’s testimony several statements of the CI or Mr. Estrada. The Tenth Circuit analyzed each in turn, reminding Ibarra-Diaz that a statement is only testimonial when it is admitted to prove the truth of the matter asserted. Ibarra-Diaz first argued it was error for the detective to testify that the narcotics investigation commenced because a CI gave information to the detective. The Tenth Circuit found no error, since the trial court stopped the detective’s testimony before he could reveal what he learned from the CI. Next, Ibarra-Diaz argued the court erred in allowing the detective to testify that the CI was afraid of Ibarra-Diaz. Because the detective’s remark was stricken from the record and the court gave the jury two separate instructions to consider only testimony that was not stricken, there was no error. Third, Ibarra-Diaz argued it was error for the detective to testify that the CI told him Ibarra-Diaz had “some dope” for sale. The Tenth Circuit found no error because the statement in question was not hearsay since it was offered for a different purpose than to prove the truth of the matter asserted. The Tenth Circuit similarly found no Confrontation Clause violations for the fourth and fifth points of error, since the actions in question were not statements. The next statement was also not hearsay because it was offered to explain the detective’s conduct. Ibarra-Diaz’s seventh challenge similarly failed because the detective was not reciting statements. The Tenth Circuit found that the eighth statement was also not offered to prove the truth of the matter asserted.

Ibarra-Diaz’s final Confrontation Clause challenge concerned the detective’s testimony that Estrada told him there was additional methamphetamine at the house. The government conceded that the statement was testimonial and violated the Confrontation Clause, but the Tenth Circuit did not find plain error because the admission did not substantially affect the outcome of the proceeding because even without the statement, overwhelming evidence supported Ibarra-Diaz’s conviction.

Ibarra-Diaz argued that some of the detective’s testimony was inflammatory and unduly prejudiced the jury. Ibarra-Diaz argued the statements unfairly painted a picture of him as a dangerous drug dealer. The Tenth Circuit elected to consider Ibarra-Diaz’s arguments as FRE 403 challenges, and found that the testimony was mostly irrelevant and its probative value was outweighed by the danger of confusing the issues or misleading the jury. However, the Tenth Circuit found that even if the district court erred, the error was not clear or obvious, and any error did not substantially prejudice Ibarra-Diaz. The Tenth Circuit noted that the evidence tended to show that the detective was afraid of Mr. Estrada, not Ibarra-Diaz, and the testimony had no effect on Ibarra-Diaz’s substantial rights.

The Tenth Circuit then turned to Ibarra-Diaz’s contention that he was deprived of a unanimous jury verdict by a duplicitous indictment. Ibarra-Diaz acknowledged that the indictment was not duplicitous on its face, but argued that the presentation of the two separate bundles of methamphetamine, taken from the vehicle and the house, rendered the indictment duplicitous because there were two factual presentations for the same offense. The Tenth Circuit declined to consider the issue, which was raised for the first time on appeal.

Finally, Ibarra-Diaz challenged the sufficiency of the evidence. At trial, the prosecution advanced two theories of Ibarra-Diaz’s guilt: as a complicitor and as a principal. Ibarra-Diaz confined his sufficiency challenge to the aiding and abetting theory, notably not challenging the theory of him as principal. The Tenth Circuit found this fatal to his arguments. Because there was more than enough evidence to support Ibarra-Diaz’s convictions as a principal, there was no need to address the aiding-and-abetting theory. However, the Tenth Circuit found ample evidence to support the complicitor theory as well.

The Tenth Circuit affirmed the district court.

Tenth Circuit: Unpublished Opinions, 2/24/2016

On Wednesday, February 24, 2016, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

Parks v. Watts

United States v. Belcher

United States v. Johnson

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.