September 26, 2018

Archives for September 13, 2018

The Pledge

19th Century Steel Baron Andrew Carnegie was (a) more than okay with the right to make as much money as you want; but he (b) was not okay with spending it any old way you like. He had some very specific notions about the latter:[1]

By the late 1880s, Carnegie’s place as one of the wealthiest men in the United States was cemented… With the time afforded him as the controlling shareholder, Carnegie put forth theories on capitalism. the human condition, and the American Republic. In 1889, Carnegie wrote an article simply titled “Wealth” — it would soon become known as “Gospel of Wealth.” . . . In it he offered an unapologetic defense of the system that enabled great wealth such as his.

[Carnegie believed that] the price for… material progress — “cheap comforts and luxuries” — was great wealth inequality. . . . Any thinking person, Carnegie surmised, would conclude “that upon the sacredness of property civilization itself depends — the right of the laborer to his hundred dollars in the savings bank, and equally the legal right of the millionaire to his millions.” But his defense of capitalism was a setup for a most startling conclusion.

In the article Carnegie argued that the greatest of men, capitalists, should be unencumbered to accumulate wealth. But once great wealth was achieved, these men should, during their lifetimes, give it away. As the possession of wealth was proof to society of great achievement, aptitude, industriousness, and ability, it made little sense that it should be bequeathed to descendants. Inherited wealth would undermine the argument that those with wealth earned it, deserved it.

Next, he held that if men waited until death to give the money away, less competent men unused to large sums would squander it thoughtlessly, however well-intentioned. While Carnegie viewed wealth as a symbol of intellectual mastery, the actual possession of it should be considered only a trust fund, with “the man of great wealth becoming mere trustee for his poorer brethren, bringing to their service his superior wisdom, experience, and ability to administer, doing for them better than they would or could for themselves. The man who dies thus rich, dies disgraced.”

Carnegie was hailed by newspapers, socialists, workingmen, and, more discreetly, even his fellow capitalists . . . for such enlightened views.

Carnegie’s legacy of endowments endures to this day. (I have clear memories of our small town Carnegie library.) Carnegie’s fellow Robber Barons created similarly enduring legacies, such as those reflected in the following names: Johns Hopkins, Leland Stanford, Ezra Cornell, Cornelius Vanderbilt, and James Duke.

Carnegie’s philosophy also endures today. albeit expressed in terms more in tune with the ethos of our times. Consider, for example, the Giving Pledge, formed “in an effort to help address society’s most pressing problems by inviting the world’s wealthiest individuals and families to commit more than half of their wealth to philanthropy or charitable causes either during their lifetime or in their will.”

As of May 2018, 183 individuals or couples from 22 countries had taken the pledge, representing total net worth closing in on a trillion dollars. Some of the Pledgers are household names; most aren’t. I randomly clicked several of their photos on the Giving Pledge home page, which takes you to their statements about why they took the pledge. Noticeably absent is Carnegie’s belief that capitalists are “that the greatest of men,” that “the possession of wealth [is] proof to society of great achievement, aptitude, industriousness, and ability,” or that wealth is a “symbol of intellectual mastery.” Nor is there an expressed fear that “less competent men unused to large sums would squander it thoughtlessly, however well-intentioned.” Instead, there’s a certain humility to many of the statements: they often mention lessons learned from forebears or other role models, and often express gratitude for having been “blessed” or gotten lucky, such as this one:

Allow me to start by saying that I am not sure I am a worthy member of this group of extraordinary individuals. I consider that I have been lucky in life.

Other themes in the statements are (a) a recognition that attaining great wealth is not solely a matter of rugged individualism, but that cultural and historical context deserve a lot of credit, and (b) a belief that giving back is a way to honor this reality. I.e., wealth made possible by historical and cultural circumstance ought to benefit all members of that culture, including the most needy. As it turns out, this isn’t just a kind-hearted philosophy of life, it’s a statement of the economic terms upon which much wealth has in fact been created and in the past and continues to be created today.

State-sponsored policies that favor timely and innovative ideas and technologies represent a significant type of societal support for wealth creation . We’ll look at that next time.


[1] Americana: A 400-Year History of American Capitalism, Bhu Srinivasan, (2017).

 

Colorado Court of Appeals: DUI Defendant Not Entitled to Have Jury Decide Existence of Prior Convictions for Sentence Enhancement

The Colorado Court of Appeals issued its opinion in People v. Gwinn on Thursday, September 6, 2018.

Criminal Law—Driving While under the Influence of Alcohol—Evidence—Impeachment—Direct Examination—Jury Instruction—Search Warrant—Prior DUI Convictions—Sentence Enhancer—Preponderance of the Evidence.

Gwinn rear-ended another car while driving home from work and was arrested for driving while under the influence of alcohol (DUI). Gwinn admitted drinking four beers before the accident occurred. After a jury convicted Gwinn of DUI and careless driving, the trial court, in a separate proceeding, found that Gwinn had three prior DUI convictions, adjudicated him a felony DUI offender, and sentenced him to 30 months of probation, two years of work release, and 90 days in the county jail.

On appeal, Gwinn first contended that the trial court’s refusal to allow the testimony of eight current and former Colorado Department of Public Health and Environment (CDPHE) employees deprived him of his constitutional right to present a defense. Gwinn sought to introduce this testimony to show that the Intoxilyzer 9000 breath test machine did not produce accurate results. The trial court did not err when it granted CDPHE’s motion to quash the witness subpoenas, finding that the testimony was irrelevant to Gwinn’s refusal because it failed to establish Gwinn’s knowledge of the Intoxilyzer 9000’s alleged deficiencies at the time he refused to submit to chemical testing. Because the accuracy of the breath test machine was not relevant, Gwinn was not deprived of the right to present a defense.

Gwinn next contended that the trial court erroneously permitted the prosecutor to lead a friendly witness, Officer Perez, “under the guise of impeachment” where no impeachment occurred. Because Officer Perez’s direct testimony that Gwinn’s speech “sounded normal” was contradicted by his previous statement in the sobriety examination report that Gwinn’s speech was “mumbled,” no error occurred when the trial court allowed impeachment with leading questions about a prior statement.

Gwinn next argued that the trial court erroneously admitted People’s Exhibit 1, an express consent affidavit and notice of revocation form, under CRE 403. Officer Perez testified that he reviewed the express consent affidavit with Gwinn, which made the affidavit relevant to Gwinn’s knowledge of the consequences of his refusal to take a chemical test. Here, the trial court properly admitted the exhibit under CRE 803(6).

Gwinn also contended that the trial court erroneously rejected a tendered instruction informing the jury that law enforcement may obtain a search warrant to compel a defendant to submit to a blood test and instructing the jury that it was permitted to draw an inference from an officer’s failure to employ this procedure that the officer did not believe there was evidence to support a search warrant. However, the officer was not required to obtain a search warrant, and the officer testified that he does not usually do so in DUI cases. Therefore, there was no error.

Gwinn last contended that his prior DUI convictions trial, conducted by the trial court, violated his federal constitutional right to a jury trial. The General Assembly intended prior DUI convictions to constitute a sentence enhancer rather than an element of DUI. A defendant is not entitled to have a jury determine the existence of the prior DUI convictions used to enhance his sentence from a misdemeanor to a felony. Further, the prosecution’s burden of proving prior convictions is by a preponderance of the evidence not, as Gwinn argued, beyond a reasonable doubt.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Semen Not “Intimate Part” so Evidence Insufficient to Support Child Sexual Assault Charges

The Colorado Court of Appeals issued its opinion in People v. Ramirez on Thursday, September 6, 2018.

Sexual Assault on a Child—Sexual Assault on a Child by One in a Position of Trust—Indecent Exposure—Intimate Parts—Semen.

Ramirez was the victim’s foster father. When the victim was 4 years old, Ramirez ordered her and her sister to approach him. He placed their hands in front of him, pulled down his pants and underwear, and masturbated. Ramirez ejaculated into their hands and made them drink the semen. A jury convicted Ramirez of sexual assault on a child (SAOC), sexual assault on a child by one in a position of trust (SAOC-POT), and indecent exposure.

On appeal, Ramirez contended that there was insufficient evidence to support the charges of SAOC and SAOC-POT. To prove the crimes of SAOC and SAOC-POT the prosecution must prove, beyond a reasonable doubt, that “for the purposes of sexual arousal, gratification, or abuse” the defendant knowingly touched the victim’s intimate parts or the victim touched the defendant’s intimate parts. Semen is not an “intimate part” within the meaning of C.R.S. § 18-3-401(2). Here, the victim testified that Ramirez never touched any of her “private parts” and that she never touched his “private parts.” The evidence was insufficient to prove beyond a reasonable doubt that Ramirez committed SAOC or SAOC-POT.

The SAOC and SAOC-POT convictions were vacated and the case was remanded for the trial court to dismiss those charges with prejudice. The convictions for indecent exposure were affirmed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 9/12/2018

On Wednesday, September 12, 2018, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

Rudolph v. Hanson

United States v. Angulo

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