July 28, 1868: The 14th Amendment to the United States Constitution was passed. Among other things, it applied due process and equal protection to the States, one of the most significant developments in constitutional law to a criminal defense lawyer. In honor, Blawg Review #170 is dedicated to great posts in the spirit of the 14th.
Mark Bennett, the Texas Tornado, challenges the prosecution’s attempt to skew the jury by asking a trick question in voir dire, whether a juror would convict based on the testimony of only one witness if that witness proves their case beyond a reasonable doubt. Is this trick used by all prosecutors, or just prosecutors for hire? More about jurors, the brilliant and articulate Anne Reed at Deliberations posts about the awkward situation (that’s no doubt happened to all of us at one time or another) when a juror, so taken with summation, applauds. The judge questioned the other jurors to be sure it didn’t impact their impartiality, but isn’t the point of summation to influence the jury?
Gideon, at the pain-stakingly redesigned A Public Defender, analyzes a California Supreme Court decision holding that a defendant has no right to allocute unless the prosecution can cross-examine, and concludes it’s just silly. Dan Harris at China Law Blog, deals with the silliness of Guanxi culture, preferring instead an ”Asian” meal with Anthony Bourdain (not Rachel Ray?). Enjoy another country’s culture and don’t sweat the details, Dan says. They’ll understand and appreciate it.
At Underdog, Jon Katz questions why some criminal defense lawyers are happy to party (and even buy the drinks!) with cops and prosecutors to be part of the club. He’ll hang with lawyers who show some self-respect instead, like Austin Criminal Defense Lawyer Jamie Spencer, who explains “the trick” when cops identify the defendant as the villian, made a bit easier by the fact that he’s the guy sitting next to the defense lawyer. But every now and then, a miracle occurs when the cop tells the truth and admits he hasn’t a clue. Nothing screws up trial prep more than an honest cop.
The Innocence Project, having made more than a few miracles of their own, posts about Marty Tankleff’s thoughts on reform, following the dismissal of charges that he murdered his parents. But Bob Tarantino at The Ego Has Landed isn’t buying, promoting the notion that the more in prison, the merrier. Can’t we all just give mandatory minimums one more chance, Bob asks? Nope, responds S.Cotus at Appellate Law & Practice, wondering why it’s acceptable for prosecutors to go after poor people for acting like, well, poor people.
Eric Turkewitz at New York Personal Injury Law has outed former Westchester DA Jeanine Pirro after her chauffered SUV sideswiped a Harley, but the cops ”fixed” the report to leave the Judge Judy wannabe out of it. Jonathon Turley notes that controversial columnist, Robert Novick, had his own hit and run issues this week. though he somehow avoided being tased 19 times for his own protection.
Scott Henson at Grits for Breakfast posts about Dr. Robert Burton’s great new book on eyewitness IDs, and how people can be so certain yet so utterly wrong. He also writes about how the impact of price increases in fuel and water are increasing the cost of incarceration, and how facilities are trying find ways to reduce their costs (like letting people who shouldn’t be there out?). Dan Hull at What about
Paris Clients? is also concerned about high costs, since he’s headed back to London, where the locals aren’t too thrilled about living with the consequences of America’s self-induced recession economic downturn.
Holden Oliver, who knows Hull’s affect on the opposite sex only too well, has yet to publicly reveal that the true purpose of Dan’s trip to London is to persuade dear Ruthie not to leave the world of blawging behind, no matter what horrible Japanese phrases Geeklawyer has bestowed on her. He would have sent her an email note, but that would have been “low and tacky.” And if Dan blows it with Ruthie, CharonQC may have a new contender for his Idiot Medal, though competition this week is <
a href="http://randazza.wordpress.com/2008/07/26/memphis-police-sue-to-out-anonymous-critic/">quite steep.
In perhaps the longest and then shortest posts of the week, Mike Cernovich (sans the media darling Norm Pattis, who has retired from the blawgosphere to study Chinese food menus (at the urging of Dan Harris, perhaps?) of Crime & Federalism runs the gamut from the brilliant, but very lengthy, video of Predictably Irrational, a fascinating explanation of how real people behave, fitting snugly into what you get for the money at the Trial Lawyers College, though nobody seems to be voicing any complaints (which would only be rational). Marc Randazza, the Legal Satyricon himself, was conflicted when forced to choose between the 1st Amendment and protecting animals. Not surprisingly, Randazza went for the cute and fuzzy 1st Amendment.
Randazza probably should have read Sharon Nelson’s Ride the Lightning post about surveillance cameras on cruise ships before Randazza went on his honeymoon. Too late now, Marc (pass the popcorn, please). But then, it’s nothing compared to the Turk’s secret to “marital bliss” revealed in his banned Ben & Jerry’s birthday video. But compared to Allison Margolin, “L.A.’s Dopest Attorney,” according to Dan Slater at the WSJ Law Blog, Turk’s got quite a way to go to create a sexpot image to “socially isolated men.”
“People are talking about how [marijuana is] being over-recommended and abused,” Margolin said. “I mean, big ******* deal. It’s not toxic!” Margolin told [New Yorker author David] Samuels that she has a doctor’s letter, required in order to buy from a dispensary, because she suffers from anxiety.
And isn’t that what all clients really look for in a criminal defense lawyer? Don’t bogart that joint, Al baby. Same for that Gerber baby, as Seth at Quizlaw points out that while California may be “different”, you have to go to the Sovereign Nation of Texas to appreciate ways to make Floridians look almost normal.
The Queen of New York Bloggers, Nicole Black at Sui Generis points out that no lovely blue box is going to change the fact that Tiffany’s efforts would be better spent defending its mark than suing eBay, but it has yet to adapt to life in the internet lane. The same cannot be said for Ken Lammers of CrimLaw, who tell us in last week’s CLTV (like General Hospital for the law) that he is not the CrimBlawger we need, but the one we deserve. Ken lives at the cutting edge of high tech, and proves that the camera doesn’t add 10 pounds.
In the most significant lawprof dispute since the Harry Potter/Ministry of Magic debacle, Ilya Somin at Volokh Conspiracy squares off with Stephen Bainbridge over the critical issue of whether Batman is a libertarian :
The Batman story is also an interesting quasi-libertarian commentary on the shortcomings of government. Like the Mafia portrayed in The Godfather, the necessity for Batman’s sometimes dubious methods arises because of the government’s failure to protect people and their property against predation. This point is effectively emphasized in both The Dark Knight and Batman Begins. In that respect, Batman is similar to The Godfather in conveying skepticism about government, its motives, and its ability to effectively fulfill even the core “minimal state” function of protecting the public against violent crime.
In response, Bainbridge notes that given the damage Batman does, Gotham City would be better off without white-collar corporate criminal Bruce Wayne. Hey, maybe he is a libertarian after all?
Paling in relative significance is the debate between Jim Chen at MoneyLaw (not what you think) and Dave Hoffman at Concurring Opinions over whether tenure creates the “Deadwood Effect, stemming from MoneyLaw’s favoring baseball and football over hockey, a position promptly reversed based on something called “Arschlochkeit”, and Dave’s rejection of the Deadwood Effect from tenure, and all the posts in between, ultimately concluding with Jeffrey Harrison’s Ode to Wood. There’s some meaningful analogy in all this, no doubt, but I haven’t clue what it is.
And almost too trivial to mention, Volokh Conspirators Orin Kerr and Paul Cassell are mud-wrestling over how the exclusionary rule plays with originalists. Orin argued that suppression is consistent with originalism, but Paul reponded, “nu-uh.” Orin then explained that his caselaw was bigger than Paul’s, ending debate. While lawprof mud-wrestling is always fun, it’s nothing compared to Brent Trout’s post at BlawgIT about a potential $8 Billion dollars worth of internet patents that may be invalid. Wow, isn’t that more than Paul made as a federal judge?
Susan Cartier Leibel at Build a Solo Practice posts about why being a solo can actually make you happier. But Doug Berman at Sentencing Law and Policy wasn’t very happy when, after a post about the sentence of one “Spam King,” and a flippant post about the escape of another, the latter ended in a horrible double murder/suicide, which no one could have anticipated. It’s a reminder to blawgers that even stories that start out funny may end in tragedy.
Another “tragedy” for many in the blogosphere occurs when someone steals posts, as catalogued by Jonathon Bailey at Plagiarism Today, with a list of 43 links in this weekend’s linkroll. Jonathon’s site includes stock letters and tips to deal with plagiarists. Bad Court Thingy thinks that baby boomers have stolen the future of the Slackeiosie, but advises his fellow Gen “Y”ers to play the game until they can pay us back when they stick us in the home.
Mark Draughn at Windypundit, taking a breather from defiling beautiful women by his photographic limitations, posts about New Orleans trying to pad their stats by treating marijuana possession as a felony. David Lat at Above the Law is dealing with weightier feminist issues in his Sapphic series about the Lindquist & Vennum summer associate kiss. Not that there’s anything wrong with that.
One might expect Ann Bartow at Feminist Law Professors to be all over this bit of salacious news, but it appears that she’s quite the “nervous nellie” when it comes to taking on Lat, the king of Biglaw titillation. Others, like Colin Samuels at Infamy or Praise, appreciate schadenfreude wherever they find it. I wonder if Lat will have as much fun wearing a suit as he did in a bathrobe?
Anne Skove at Court-o-Rama (the least dangerous blog) promotes the tu
erducken of parole-like involvement in criminal prosecutions early in the process, rather than, say, afterward, which I guess means defendants could complete their sentence before the case goes to trial. Andrew Bluestone at New York Attorney Malpractice Blog discusses malpractice liability for referrals, which would surely come my way if any attorney to whom I referred a case agreed to let the defendant be quasi-sentenced before conviction (or acquitted, as can happen in Texas).
Skelly at Arbitrary Carpricious, meanwhile, posts about a Toyota “Pious” with an anti-Walmart bumper sticker on it, which he says is “bound to enlighten the families of my clients, who own the primer-gray beaters . . . and who don’t know how they’re going to pay the bill for detention and groceries and gas this month.” This contrasts nicely with Carolyn Elefants’ question at My Shingle about the effectiveness and propriety of lawyers offering 99 cent gas promotions, which could resolve at least one of Skelly’s problems.
Netiquette savant, half of the famous 70′s disco duo, ”
Bros in ‘Froes,”* style-trend setter, and conscience of the blawgosphere, David Giacalone at f/k/a raises a very serious problem with attorneys engaged in debt negotiations, taking huge up front fees that bear neither connection to the extent of services provided nor successful results. After dissecting the practice area in detail, he wonders whether lawyers are willing to take a stand, or do they fear that their houses may be made of glass as well. This inspired Charles Phelan at The ZipDebt Blog to provide a history of debt settlement fees, now that he was no longer the only voice in the wilderness cursing this insidious practice. Nice to see so many other lawyers in the blawgosphere speak out on the subject, demonstrating their deep concern for the integrity of the profession.
Mark Hermann of the Beck/Hermann duo at Drug and Device Law posts about how the pharmaceutical manufacturers will get caught in the middle with the new PhRMA Voluntary Guidelines that are great excep that they expose them to liability for taking drugs off the market when dangerous side effects are found. No good deed goes unpunished. I can almost hear Gerry Spence rail at the drug companies, “Slave, Slave, Slave,” except that he has ny sympathy for the corporate masters. Maybe a day of silence at the Thunderhead Ranch makes a lot more sense than I thought?
At Balkinization, Marty Lederman posts a detailed analysis about Attorney General Michael Mukasey’s effort to use last-ditch fear-mongering to overcome the Boumediene decision and deny due process to anyone the administration decides to call an “enemy combatant.” regardless of the absence of evidence, for the “duration of the conflict.” This isn’t the Michael Mukasey before whom I appeared, and I can’t understand how or why a judge who had a firm sense of due process turned into a shill for the most unAmerican of causes. Marty says this effort is futile. We can only hope.
Some, by now, may be asking, “what do all these posts have to do with the 14th Amendment?” Everything, I respond, because everything we do as lawyers and in the law ultimately bears upon due process and equal protection, whether positively or negatively. There is nothing more fundamental to the law. And that’s how this criminal defense lawyer sees the world and the blawgosphere.
And if you’re wondering why there’s a picture of a 1964 Austin Healey BJ8 (driven by my 14 year old son and second biggest critic, Jack, who thinks Canadians are tres weird based upon the stolen vehicle of choice, per Law is Cool, ["as if", Jack says]), it’s because that’s what I would have been doing this past glorious weekend had I not let the anonymous Ed. ”persuade” me to do this Blawg Review.
* The other half of the duo is believed to be the only known photograph of the anonymous Ed., so don’t look at it. If you’ve already looked, gouge out your eyes if you haven’t done so already.
Blawg Review has information about next week’s host, The IP ADR Blog, and instructions on how to get your blawg posts reviewed in upcoming issues.