Simple Justice

ABA House of Delegates: Huh?

2010-02-09T12:10:00Z

The American Bar Association has never carried much weight amongst criminal defense lawyers. Few join, and I can't think of anyone who participate in the House of Delegates. I'm sure there are, but I just don't know who. Maybe they keep it to themselves to avoid embarrassing questions, like "why?", or "what the heck is the ABA doing?"

The latter question popped into my head when I read the breaking news from the ABA Journal, that the House of Delegates, in full swing yesterday. announced 9 criminal justice resolutions.

The ABA’s policy-making House of Delegates this morning passed a series of nine criminal justice resolutions. The measures had wide support from both prosecutors and the defense bar, according to speakers. The resolutions urge:

• Employers and educational institutions to ignore juvenile convictions that have been expunged.

• Legislatures to adopt simplified Miranda warnings for juveniles who are arrested.

• Legislatures to study whether some misdemeanor laws should carry civil fines rather than criminal penalties.

• Judges to conduct a conference with parties in a criminal case prior to trial, advising them of their respective disclosure obligations, such as the obligation of federal prosecutors to disclosure information under Brady v. Maryland and related case law.

• Governments to facilitate communication and contact between individuals in correctional custody and their families.

• Bar associations and law schools to provide prisoners with assistance in “avoiding undue consequences of arrest and conviction on their custodial and parental rights,” and Congress to allow Legal Services Corp.-funded organizations to provide family law counseling.

• The U.S. Attorney General to “assure that lawyers in the Department of Justice do not make decisions concerning investigations or proceedings based upon partisan political interests.” The measure is a response to the dismissal of several U.S. Attorneys during the Bush administration.

• Policy-makers adopt the ABA Criminal Justice Standards on the Treatment of Prisoners.

• Congress provide more than the $25 million appropriated so far for the John R. Justice Prosecutors and Defenders Incentive Act of 2008. The measure provides law school loan forgiveness for state and local prosecutors and state, local and federal public defenders who agree to serve for a minimum of three years. Federal prosecutors are already eligible for loan relief through existing federal programs.

The resolutions were all were adopted by overwhelming voice votes. No members of the House spoke in opposition to the measures.

There is much wrong in the management of the criminal justice system in this country, and to the extent that anyone gives a hoot what the ABA has to say about it, this was a grand opportunity to speak out and make a clear statement that lawyers and judges participating in the largest bar association in the nation demand better.

But these nine resolutions are so lame, some indecipherable and others meaningless, that the only two reactions could be to laugh or cry. These are seriously bad.

For instance, the fourth resolution, calling for judges to hold a conference to advise parties of their "respective discovery obligations." Respective? The defense has no Brady obligation, because we don't prosecute. Do the delegates not know this? And the prosecution knows that its required to disclose pursuant to Brady. They don't need to be reminded. They didn't forget. They just don't do it.

The failure to disclose is a huge problem. The ABA resolution is absurd.

And then there's resolution five, calling on government to "facilitate" communication between prisoners and their families. What does "facilitate" mean? I've got no clue. I assume this is in response to states selling collect calling rights to phone companies so they can charge $27 a minute to prisoners. Or does it mean a payphone on every cellblock? Or allowing 5 calls a day? Or free telephone calls? Or what?

And don't even get me started on the meaning of "undue consequences" in the sixth resolution.

The problem with the ABA has always been the same. It's not the voice of real criminal lawyers. It's the voice of committees, which by definition would turn thoroughbred horses into two hump camels, comprised of defense lawyers, prosecutors and judges. As the three groups have very distinct interests, all with camels in the race, the extent of overlap and hence agreement is minimal. The result is lame resolutions, either too vague or too weak to mean anything. Nine of them, not a one worth a damn.

Wait. I'm wrong. There is one that actually says something. The ninth, and final, resolution, which calls for $25 million to fund loan forgiveness for prosecutors and public defenders. This is an issue where the ABA actually has strong feelings. In fact, ABA President Carolyn B. Lamm has made students loans for law students her big issue.

"Because of the recession, a lot of students are facing debt they can’t pay,” said Lamm, a partner at White & Case in Washington, D.C. “We’ve been urging the White House, DOE [Department of Education] and Congress to persuade lenders to create the suspended payment period. This resolution will give that effort the full policy backing of the ABA.”

In ABA-land, the recession only touches lawyers. She's heard the painful cries of law students, unemployed or deferred, carrying debtloads of more than $100,000. Almost 45,000 are produced in the ABA accredited lawyer factories when there are only 30,000 jobs per year. So Lamm's solution is take the tax dollars from people on Main Street, jobless and facing down foreclosure, and feeding them into the hungry mouths of poor, miserable unemployed law students. After all, with all the misery caused by economic circumstances, aren't law students, hoping against hope to win the lottery by landing the Biglaw job, the most deserving?

Maybe someone will speak up and suggest that the answer is to stop accrediting new law schools to produce new lawyers for jobs that don't exist and a society that doesn't need more litigation. Then cut the seats in existing law schools in half. They cut the tuition by a third, as well as the time in school taking crucial classes like "Law and Modern Television Sitcoms."

It's not likely. If anyone was to speak up and say such a thing, they would be laughed at by the other delegates. This is the American Bar Association. This is what comes from a big group of important lawyers in the same room. Nonsense.

The Moral Frustration Of Charging A Fee

2010-02-08T12:20:00Z

Norm Pattis describes well the inherent conflict that most private criminal defense lawyers feel when a person in need rings them up.

The contrast between the law's soaring ideals and the more prosaic reality of paying the bills intersect at the moment the attorney-client relationship is formed. Yet in all the great and not so great fiction about lawyers and the law, fees are almost never discussed. . . Why the silence about fees?

I suspect it has to do with a certain moral ambiguity. There is nothing edifying or easy about asking a person in trouble for money. The ideal of a lawyer as crusader for justice does not easily square with the image of the esquire as businessman. "Sure, sir, I will be happy to defend you, but first on the matter of my fee ..." This is a difficult transition.

Boy, is it. Informing a human being that there's a price tag connected to the defense of his case is one of the most difficult hurdles that a criminal defense lawyer has to leap. No one wants to turn away a person in need, unless they are so fundamentally mercenary that they lack basic human feelings. But as Norm points out, there are some hard realities to address:

Our firm typically charges flat fees for criminal cases. I wonder, sometimes, whether that makes sense. The client buys an ideal, and with it the limitless sense that the lawyer is available 24-7 to discuss his thoughts, feelings, fears and goals. The lawyer, on the other hand, remains bounded by the realities of running a law practice: the demands of trial in another's case, the need to pay the bills, manage a staff and attend to the needs of his other clients.

But here is where there are differing views. Norm reviews my posts about "managing" the "big fee" client.

Scott at Simple Justice has written in recent weeks about the demands of the so-called big fee client. I read his pieces with a gnawing sense of frustration. There really ought not to be multiple standards for clients: all, regardless of fee, should get the same level of commitment and care. But Scott raises an honest point: the market in human suffering is price sensitive. Client's with unlimited means get unlimited time from their lawyers; those with more limited means get less time. The reason is simple: like it or not, time can be transformed into money, and necessity governs a law practice.

While it's understandable that Norm would draw this conclusion, it's not the way it fleshes out. While fees vary based upon the experience of what will be required to represent a given defendant in a given case, experience also teaches that things often work out differently than expected. Once a case is accepted, and utterly without regard to fee paid, the work must be done. If the fee is insufficient to cover the amount of time necessary to perform the work, then that's my burden. The client has done all that's asked of him, and the risk of there being more work, sometimes far more, than anticipated is my responsibility alone.

This doesn't mean, however, that the hand-holding, middle of the night anxiety phone calls are taken with equanimity. That's not lawyer work, and while it may be part of the job to help the client to understand and appreciate the situation, it's not a 24/7 therapy session. If the client's anxiety sucks up time that impairs my ability to handle the lawyerly work for which I'm retained, then the client is told as clearly as possible that it's not going to be tolerated. It's not a lack of empathy, but a matter of necessity. There are still only 24 hours in a day, and if they're all used up listening to the client's worrying, then there's nothing left for the lawyering. He loses.

But this is as equally true of the big fee client as any other client. It's a matter of creating a clear understanding from the outset about what the job is, and what the client is paying for. If he needs a therapist, then he's come to the wrong place. If he needs a lawyer, then we're on the same page.

Every client, however, whether the legal fee is a million dollars or two cents, receives every bit as much legal representation, meaning time performing the function of a lawyer, as is needed to provide the best possible defense. There's no clock ticking in the background that tells me that the time a client's paid for has run out, and I move on to the next, higher-fee-paying client. When I take on a case, I take on the responsibility of fulfilling my duty to the client to provide a zealous defense, regardless of how much time that takes. There's no wiggle room on my part; I owe the client no less.

This doesn't alter the moral frustration of having to either be paid a fee or take a pass. The other day, I received a telephone call from a young woman who found me via Avvo.* She had a warrant because she neglected to perform the community service imposed for a minor offense. She had left the state. She couldn't remember the name of her lawyer. Her mother was very angry with her. She had no money. What should she do?

Put aside the fact that all her problems, and there were many, were entirely of her own making, and grounded exclusively in her own remarkably poor choices. She clearly needed some help. I understood and felt badly for her, but I could offer her nothing. It's not that I didn't know what to do to help her. That was a fairly easy question. It was that my doing what was necessary would have impaired by ability to defend the people whose cases I have already taken, who have paid my fee, who are depending on me to put in the time to do everything in my power to help.

That people call with problems that they've created for themselves, in need of help and with nowhere to turn, doesn't surprise or bother me. One of the fundamental themes in this business is that people do incredibly stupid things all the time. We try to help them and simultaneously teach them to make better choices so that they don't continue to do stupid things. We don't blame them for being human, or leave them to hang because their problem are of their own making.

Limits, however, are imposed by the harsh master of reality. I'm not a public defender, and I cannot defend my clients if I try to be all things to all people. It's not that I don't care. It's that it isn't possible, so choices have to be made. I will do everything I can to defend my client, whether he's paid the big fee or not. But something has to give.

How to balance the needs of clients and the need of a firm for fees is a challenge I have yet to master after many years of trying. It is a discouraging reality that even legal fiction refuses to address.

By no means do I assume that I've mastered the balance to achieve some element of moral balance, but I firmly believe that a line must be drawn if we're to fulfill our duty to the clients whose cases we take on, and survive. This is where I've chosen to draw the line.

* When I went for the link to my profile page on Avvo, I saw that a paid advertisement for Tony Colleluori, his face smiling at me, was just to the left of my free profile. I hadn't been aware of this, since I have no reason to go to my Avvo page in the ordinary course of affairs.

However, now that I know that Tony actively seeks the telephone calls that I do not, so much so that he's willing to pay to get them from people who have chosen to take a look at my profile, I will be more than happy to refer the callers directly to Tony. Plus, he's available 24/7, and I go to sleep pretty early and really don't care to be woken up by telephone calls in the middle of the night by people asking for free advice.

No need to thank me. It's my pleasure to help.

International Criminal Court? No Time Soon

2010-02-08T11:30:00Z

Via Opinio Juris, it appears that the Obama administration, trying its best to emulate his predecessor, is not inclined to join the international community when it comes to the International Criminal Court.

Apparently, the Obama Administration has decided it will not seek ratification of the ICC Rome Statute. There is still no official policy, as far as I know, but this is the latest from Assistant Secretary of State for War Crimes Stephen Rapp. This is not exactly a surprise, but it shows just how far the U.S. is from the Rome Statute. If President Obama and his sort-of supermajority in Congress do not wish to join the ICC, then it is hard to imagine the U.S. joining during a future Sarah Palin or Mitt Romney administration.

The ICC is one of those particularly sore subjects, which pits theory directly against reality. On the one hand, any effort to address conflict and behaviors across jurisdictional borders requires some rational overarching agreement between nations, as well as means of addressing what is determined to be a wrong, a crime. The most obvious example is war crimes.

The problem, of course, is that the United States will clearly be the target of war crimes complaints by smaller countries, angry with us for playing world policeman and being on the wrong side of the conflict as far as they're concerned. One might assume that every president, not to mention various other officials, will be under constant indictment in the ICC. Either we would subject our government to perpetual prosecution or ignore it and reduce it to a joke.

Without the United States, however, the ICC will never attain legitimacy.

Cries that the current administration is internationalist, not to mention socialist, appear to be overwrought. When it comes to the ICC, one might think that they've taken their talking points from Cheney and Rumsfeld. After all, we've got enough guns and planes that we really don't need to beg for the approval of the rest of the international community. We're a superpower and you're not. You don't get to judge us, and we don't need to be judged by you.

Some friends of mine were strong supporters of the concept of an International Criminal Court, believing that it would provide a check on the worst extremes of power and provide a means of political stability in a militarily unstable world. They believed that until the United States recognized that, superpower or not, it had to get along with other countries in the world and recognize their sovereignty, we would remain on the path of war, where the only justification was "our way or the highway." Might makes right isn't a recipe for world peace.

The theory has long been interesting, but the practical concerns are certainly real. The United States certainly has some issue with respecting other nations' sovereignty, their right to conduct their political affairs in the way they see fit even though it differs from ours, often in the extreme. For those who take comfort in knowing that our way is, by definition, the best way, and hence properly imposed on any nation with fewer weapons, the notion of sovereignty doesn't matter a whole lot. For those who respect the right of other nations to differ with our way of doing things, then this is American jingoism at its worst and most destructive.

But even Pollyanna would have some problems putting an American president in the dock to face charges by a Somali warlord, presided over by a judge from Moravia. It's not going to happen. And even the most ardent believer in the International Criminal Court must surely realize that Americans will never tolerate our officials, or generals, or even buck privates, being subject to judgment by outside authorities. Not as long as we have more guns and planes than anyone else.

H/T Jonathon Adler at Volokh Conspiracy

Retaining The New York Legislature

2010-02-08T10:36:00Z

Few New Yorkers realize that our state legislators are part-timers. If you're a populist, you might call them citizen-legislators. If you're a cynic, you might call them scoundrels. But the fact is that "part-time" assemblymen and senators in the State of New York have outside jobs, and since most of them are lawyers, most of the outside jobs are with law firms and involve representing clients. Some wags might suggest that their clients don't hire them for their mad lawyering skills.

Following the embarrassing cases of former Senate majority leader Joseph Bruno and Assemblyman Anthony Seminerio, the legislature passed an ethics bill requiring disclosure of private business dealings. Governor Paterson immediately promised to veto the bill as inadequate.

"While there are some good aspects of the ethics bill passed today by the Legislature, it does not go far enough to address the underlying issues that have caused the people of New York to lose faith and trust in their government,” he said.

While there are many glaring gaps in the ethics bill, perhaps the most notable is that the disclosure doesn't include private law clients.

The bill requires much more disclosure about the private businesses of New York’s part-time legislators — except lawyers. Lawyers like Sheldon Silver, the Assembly speaker, and John Sampson, the Senate leader, do not have to reveal their clients if they have no business with the state. This is unfair to the public and to lawmakers who would have to reveal other clients in detail.

The argument is that the identities of law clients is privileged information, and to require a legislator to reveal his clients' identities and the fees paid would breach the attorney/client relationship. The New York Times editorial argues that this is wrong.

Now the New York City Bar Association has said that a claim of attorney-client privilege is no excuse. In a well-argued statement last week, the respected group said these legislators should be required to disclose the names of their clients, their fees and a clear description of the work provided for such fees. This is good news for New York’s voters, who need to be sure that all elected officials are putting the state’s interests first.

It's curious that the issue has been completely resolved as far as criminal defense lawyers are concerned with regard to both identities and fees (just ask Caplin & Drysdale or Goldberger & Dubin), yet remains in question when it comes to legislators. But the question remains, if lawyer-legislators are required to disclose their clients, will that clean up the ethical morass of Albany? Not in this Plato's Republic.

The ethics bill passed in Albany is being characterized as a step in the right direction. If so, it's about as small a step as could conceivably be taken. There is little question that those entities and individuals who are handing over checks to legislators to keep them in cashmere hold some greater sway than does the sincere, but non-paying, constituent. Hey, a guy's got to eat, right?

While transparency is the flavor of the month, it's at best a means to ethical oversight, not ethical behavior in itself. And as means to an end goes, it's so anemic that it would be on life-support before it was ever implemented. There are just too many ways to circumvent it, not to mention that the only ones who would bother to note disclosure are lobbyists for the other side. Citizens won't know and won't care. It's all inside-Albany baseball, and doesn't alter the fact that legislators' time is being bought and paid for by somebody. That, not disclosure, is the problem.

The flaw is the perpetuation of the myth that legislators are part-timers. There's nothing part-time about it, taking up their every day and, for the most part, their every night as well, as they appear at fund-raisers, constituent functions, union halls, corporate conferences and gala charity balls. Every second that legislators aren't absolutely required to be sitting in chambers is spent fundraising. Currency is the currency of Albany. You can't do the People's work if you can't afford to be re-elected.

Rather than nip around the edges of ethics, and fight the wrong battles since they do little to improve the clear conflicts that are imposed upon, and apparently welcome by, New York's legislators, the far better answer is to make the jobs full time, pay them an appropriate salary as full-time legislators, and preclude outside income.

This offers two monumental advantages that would eliminate New York's perpetual legislative problems: First, it would mean that our legislators no longer have an excuse for their abject failure to stay in Albany and do their jobs timely and diligently. Second, it would mean that legislators could no longer be bought and sold, regardless of whether they reveal who's paying their bills. In the scheme of what it costs to run the State of New York, the additional cost of making New York's legislators full-time is trivial.

But it's unlikely that our current legislators would go for such a change. You see, they can make a whole lot more money selling influence than they can serving the People. Weitz & Luxenberg pays better than the government, right Shelly? If you want to see a real fight, just try to take away their outside jobs. What does that tell you about the New York State Legislature?

Thank Turkewitz and Elefant For Your Freedom

2010-02-07T11:42:00Z

While we're every bit as much lawyers online as off, and the constraints against fraud, impropriety and deception apply to everything we do as lawyers here as well, the fact is that the disciplinary authorities do not roam the internet looking for lawyers in violation. This leaves us, absent a specific complaint, with a free hand to exercise free speech, both commercial and pure, without fear of censorship or oversight.

Does that make you happy? If so, send a thank you note to Eric Turkewitz and Carolyn Elefant.

The Association of Professional Responsibility Lawyers met in Orlando the past couple of days. It's an association comprised of lawyers who prosecute, defense and decide attorney disciplinary cases. One of the presentations was on attorney discipline in the electronic world, a huge and developing area for attorneys to engage in proscribed conduct, BrianTannebaum, whose practices spans defendant attorneys in disciplinary cases as well as criminal defense, was there to live twit the program.

During the course of otherwise dry information, something familiar caught my eye in a pair of twits:

@carolynelefant discussions on eshaming is being discussed #aprl

@turkewitz blogging on the airplane crash is being discussed #aprl

The gravamen of the discussion is that, while disciplinary committees can't keep pace with the explosive growth of content by lawyers online and, even if they could, wouldn't be able to deal with it, it's not a huge problem. The reason is simple. People like Eric Turkewitz are out there keeping a close watch on lawyers who are behaving unethically. People like Carolyn Elefant are out there making sure that unethical lawyers aren't getting away with it by e-shaming. As Tannebaum twitted, the internet, via the vigilance of lawyers, is largely self-regulating.

The internet, and particularly the blawgosphere, could easily become a cesspool of lies and scams by lawyers. Given the purpose of many lawyers, to convince potential clients that a lawyer with three weeks experience fetching coffee is really a highly experience trial lawyer who has won hundreds of multi-million dollar cases and cares deeply about them immediately after their child was brutally killed in a car crash, it's hardly a stretch. Lawyers have shunned ethical considerations in favor of marketers and social media gurus conception of how they should present themselves to the world. In the toss-up between honor and business, there's no contest.

This might well have led to the heavy hand of rules made and applied to the internet by those charged with maintaining lawyer discipline. Chances are slim that they would have fashioned sensible rules, and grim that they would have a viable understanding of what happens in the etherworld. Chances are extremely good that they would have imposed broad, sweeping regulation that would have undermined almost all speech, substantive or promotional, rather than engage in the very difficult sorting process that would have allowed attorneys to engage in blawging while constraining the deceptive. We would all be painted with the same brush.

Except, there was no compelling need to do so. The blawgosphere has not turned into that cesspool, because lawyers like Turk and Carolyn are here, and not afraid to keep a sharp eye on the unethical practices of others, or do something about it.

For all those who implore their brethren to turn a blind eye to their dubious methods, or whine about the public humiliation of being called out for conduct that embarrasses them, that's the price of avoiding disciplinary death for all lawyers online. The alternative might well be to just shut all of us down, silence us, for the inability to police our every comment and idea. Would it really be that bad? Try "friending" a judge in Florida and find out.

Thank you, Turk and Carolyn. The freedom for the good online is due to your efforts. It's because of your strength and will to find and shame the bad that we have the freedom to express ourselves in the blawgsophere.

But For Video: Trust Me Edition

2010-02-06T12:49:00Z

It couldn't be a lot of fun being Gerald McGovern. The 58 year old homeless Fort Lauderdale man had been arrested at least 69 times. This last time, for which he was being held in lieu of $1,500 bail, he was accused of turning violent when he was approached by an undercover deputy. Of course, being homeless and with a rap sheet longer than he was tall, it must be true.

But his public defender, Celine Abram-Schmitt, did the unthinkable. She defended her client, and she did so well. From WSVN.com:

A homeless man's attorney said surveillance video shows deputies used excessive force in his arrest.

The public defenders office said the surveillance video clears McGovern and implicates BSO. "I don't believe someone who was falsely accused, as the evidence is going to show with great weight, should be incarcerated just because they're homeless and they're indigent," Defense Attorney Celine Abram-Schmitt said.

It seems the deputy's story was a little backwards. It wasn't McGovern who attacked the deputy, but the deputy who attacked McGovern. There was even a witness to the beating.

A witness, Roberto Aguilara backs up McGoverns claim. "They come on top of him to beat, and they kept hitting and hitting and hitting. I think it's a long time, around two minutes," said Aguilara.

Of course, the word of a witness, contrasted with the word of a deputy, is a recipe for conviction. Cops don't lie. Unless there's a video.

Broward County Sheriff, Al Lamberti, was furious. No, not with his lying deputy. No, not about the fact that his deputy decided to wail on a homeless man. He was furious at Abram-Schmitt.

Because the public defender released the video to Channel 7, the sheriff is furious. "I know it's his job to defend the people that he represents, but it's also my job to investigate or to make sure that deputies are acting appropriately. I can't do that if I'm going to get blind-sided or a surprised attack with something like this," sheriff Al Lamberti said.

Fascinating that the sheriff's complaint is that he was blind-sided. Is that the public defender's fault, or the fault of his lying, homeless-beating deputy? Nothing stopped the deputy from coming into his boss' office, feet a-shuffling, head tilted downward, and saying, "ya know that homeless guy I brought in? Well, I gave him a good tuning up when I saw him lying there and, well, just needed to beat on somebody. You know how that is, right boss?" It could happen.

The public defender, on the other hand, would not have been privy to that conversation. In fact, chances are awfully good that if the deputy had that conversation with the sheriff, no one would ever know. It's not like it's Brady or anything. At least from the law enforcement point of view.

The public defender decided that his prime evidence, the surveillance video of the beating of McGovern, might not be best entrusted to Lamberti's caring hands.

"My obligation as the public defender is to represent poor people and homeless people, and after being in the court system for over 30 years, it has become clear, to almost anybody who is in the court system, that the police can not and will not police themselves unless they know the whole community is watching," said public defender Howard Finkelstein.

So Sheriff Lamberti looks like a fool, and his deputy a thug. Hardly the New Professionals that Justice Scalia talks about. Indeed, beating a homeless man and then lying about it, prosecuting him for an attack that happened backward, is pretty much the old professionalism, sans rubber hose or brass knuckles. The more things change, the more they stay the same.

You learn a few things after thirty years in the trenches. Finkelstein learned that he can't trust the cops. He learned that even poor people, homeless people, are due the best efforts of his office. And he learned that without the eyes of the community watching as a deputy beat Gerald McGovern, nobody would ever believe that his client was the victim of a police beating. Howard Finkelstein knows what he's talking about.

Without video, who would you believe? And so the defendant was released without bail and the charge dismissed, right? Well, not exactly. The judge ordered the defendant interviewed by pre-trial services to determine whether he should be released, and given a long history of warrants, chances are not good. Who cares if he didn't commit a crime when there's a potential warrant for failure to appear? I hope the food in Broward County jail is decent.

H/T Packratt

From Laundry Detergrent to Lawyers, The Angry Marketer's Path

2010-02-06T11:11:00Z

When Avvo decided to put on a play in beautiful Seattle, one about lawyer marketing (as opposed to its roadshow to sell lawyers across the country on the benefits of claiming their Avvo profile and thereby acknowledge Avvo's existence), it struck me as almost as bad an idea as the Get A Life Conference.

These are the places where lawyers go to take comfort in the fact that they aren't the only scoundrels who care nothing for the client and only for how a once-honorable profession can make them wealthier or their lives easier. But having been asked to participate in the conference, and liking the Avvo guys, Mark Britton, Conrad Saam and Josh King, as much as I do, I couldn't resist watching from afar. And offering the counterview, since no one there would be questioning how lawyers look in hotpants.

I've got a great deal of respect for Mark Britton, and what he's accomplished at Avvo. I'm not always a fan of the ways he's trying to monetize what he's built, but I can appreciate that it's a business and, like all businesses, needs revenue to survive. Mark, on the other hand, sees me as a thorn in his side. He told me just the other day that my comments sound to him like "Grumble, Grumble, Quack, Quack, Nay, Nay, Nay." He's wrong. I don't quack.

But the Avvo guys like me enough to list SJ as one of their favorite blawgs, so I can't be all bad. And as Josh King wrote in his AvvoBlog post about Ghostblogging,

What’s more, they’re ATTORNEYS. I don’t know about these lawyers, but having people tell me I’m full of crap or don’t like what I’m doing has been a regular occurrence throughout my legal career. Grow a thicker skin – and don’t think about blogging if you can’t be authentic and have a real conversation.

Josh gets it. The Avvo guys get it. Authentic doesn't mean blow kisses or smoke. That's not how lawyers roll, unless their brains have been consumed by the self-promotion endorphins caused by starvation and desperation, and they think that it will endear them to someone who will throw them some crappy case so they can pay the phone bill for another month.

When I had some free time during the Avvocating conference, I followed it on twitter, where it could be accessed through the hashtag #avvo. It wasn't just a matter of idle curiosity, but a means of checking the pulse of the profession. Our health was at stake, and the Avvo prescription was marketing. Talk about quack.

Brian Tannebaum must have had some free time too, as he was doing the same as me. As we followed and twitted, others asked us what was going on, how bad did it look, how much did it smell. We twitted amongst ourselves, being authentic and engaging. It's the way to be, you know. I eventually got bored, there being only so much marketing chatter that a reasonable person can take. Meaningless jargon takes its toll after a while, and little was coming out of it beyond the cheerleaders extolling the virtues of streetwalking.

There was one serious question I posed: Were there any real lawyers at the conference? What became fairly apparent from the chatter was that this bore a closer resemblance to marketing bootcamp than any conference relating to lawyers. This scared the crap out of me, all the inherent zeal of marketing with no comprehension of professionalism or ethical constraint. It's like holding the AA meeting in the tasting room at Two-Buck Chuck's.

That's when I met Sonny. I had never heard of Sonny Cohen before. I asked if anyone else had ever heard of Sonny Cohen. No one had. The question spread from lawyer to lawyer, and nobody had ever heard of Sonny Cohen. In the legal sphere, he didn't exist. But Sonny existed, at least in his own mind. In there, he was a giant, a person of monumental importance.

Out of the blue, Sonny chose to let me in on the secret of his existence. He twitted at me:

Most diminished brand of the day: @ScottGreenfield. Forget it. I'm not referring any of my criminal friends for you to defend. #avvo

SonnyCohen

To his credit, he packed more into one little twit than any I've ever seen before. Unfortunately, it was also the singular most bizarre and disturbing demonstration of a failed grasp of reality that has come out of any marketer. Or in Sonny's case, a man who wanted to be a lawyer marketer but didn't hitch his mule to the wagon when he was still young enough to grasp that the day's of marketing laundry detergent as "new and improved" were enough to make a living.

I felt badly for Sonny. In one twit, he branded himself as wholly disconnected from the very marketing niche that he paid good money to learn. Obviously, he was no kid. He wasn't perky and popular, like Alexis Neely. He didn't have a bunch of followers, like Adrian Dayton. He didn't have a thriving business, like Kevin O'Keefe. He didn't have a novel concept, like Susan Cartier Liebel.

Sonny didn't grasp the absurdity of what his twit said about him, or the significance of his introduction to the legal sphere. In less than 140 characters, a man who would be a marketer managed to prove to lawyers that he had no grasp of who lawyers are or what lawyers do. Whether he has a lot of criminal friends, certainly a possibility, is besides the point.

Sonny disappeared from the twitter stream quickly after being ridiculed widely by lawyers following Tannebaum and me. It was cruel, but he was just too pompous and disconnected, and clearly asked for a good kick. It made for a good joke amongst lawyers on twitter, but we moved on. Just another clueless marketer, trying desperately to not appear pathetic.

But he couldn't let it be. While it's not like anyone was in the room listening, Sonny felt compelled to continue the fight, defending his old man honor in a new-fangled medium about which he understood little. Ironic, given that he calls himself Director of Internet Marketing. I would guess that he's also the janitor and chief bottle washer of internet marketing. Titles are fun.

At his Social Media Tyro blog, Mark Bennett posts about Sonny's still fighting the lost battle.

One of the attendees, Sonny Cohen, wrote a blog post, When Flames Erupt in the Twitter-enabled Conference Backchannel (no, seriously, that’s the title). Conceding that Scott and Brian “had some great points about abuse of social media, thoughtless blogging and even the alleged ’social media gurus’ (SMG) who industrialize the process of building real human networks,” he nonetheless called them “harassers,” “flamers,” and “jackass” (half a jackass each, apparently).

Cohen’s post, and his Twitter response to Scott, were overwrought and self-important to the point of narcissism. It’s Twitter; if someone says something you don’t want to hear, you can block it. Brian and Scott didn’t even know that Avvo was displaying the timeline on the podium. (Had they known, they would have had a lot more fun with it. [Ed.note: So true. If we had known, there would likely have been more than a few scatological twits focusing on certain parts of the anatomy of the Avvo guys. We can be so juvenile at times.] )

Saving for another day modern Homo Internetus’s tendency to throw around heavy words like “harassment” in response to the slightest criticism: are narcissism and hysteria prerequisites for a job as an internet marketer?

Mark is younger, better looking and smarter than I am, but my ~~advanced age~~ experience leads me to a different conclusion. While there's certainly a strong element of narcissism in Sonny's view, he's more Willy Loman than Slackoisie. He's fighting for the last vestige of dignity, having made the critical mistake of revealing himself to the legal world as someone so far outside, so utterly disconnected, that he thought the marketing was more important than the lawyers. After such a fundamental error, the likelihood that any lawyer would entrust his reputation and license in the hands of such a fool was essentially nonexistent. Sonny had killed any chance of moving into legal marketing with a single twit, and he had nothing left to lose.

I feel badly for Sonny. As we get older, it becomes increasingly difficult to keep pace with change. Blink and the world can pass you by, as happened to Sonny. That has to be a horrible feeling, knowing that there's a Brave New World out there and you're not a part of it. The arrogance of youth is only surpassed by the hubris of age.

Sonny has no future in legal marketing. He doesn't "get" lawyers, what distinguishes selling a professional from selling laundry detergent. He clearly doesn't understand the internet, from twitter to blogs, having made such a horrendous error to start his downward spiral and to compound it by challenging the blawgosphere to salve his hurt marketer's pride.

But if you've got new and improved laundry detergent to sell, I bet Sonny is your man. And I'm sure he could use the work. Don't hold this against him.

250 And Counting

2010-02-05T13:13:00Z

This press release was received yesterday from the Innocence Project.

In 250th DNA Exoneration Nationwide, New York Man Is Proven Innocent 33 Years After Wrongful Conviction for Rape

Innocence Project releases report detailing all 250 exoneration cases and outlining causes of wrongful convictions

(NEW YORK, NY; Thursday, February 4, 2010) - A Rochester, New York, man who was wrongfully convicted of rape 33 years ago is being exonerated with DNA testing today, in what the Innocence Project said is the 250th DNA exoneration in the United States.

Freddie Peacock, 60, was convicted of rape in December 1976. He was sentenced to up to 20 years in prison and released on parole in 1982. He tried to remain on parole because he thought he would never be able to clear his name if he was released from state supervision. For the last 28 years since he left prison, he has fought to prove his innocence even though he was no longer incarcerated.

"Freddie Peacock was released many years ago, but he hasn't been truly free because the cloud of this conviction hung over him," said Olga Akselrod, the Innocence Project Staff Attorney handling the case. The Innocence Project is affiliated with Cardozo School of Law. "Nobody in the U.S. who was exonerated with DNA testing has spent this many years outside of prison fighting to prove his innocence. Today, the decades-long nightmare that Freddie Peacock and his family have endured is finally over."

The Innocence Project released a report today, "250 Exonerated: Too Many Wrongfully Convicted," which details each one of the exoneration cases and includes statistics on common causes of the wrongful convictions.

Among the report's key findings:

• There have been DNA exonerations in 33 states and the District of Columbia.

• The top three states for DNA exonerations are New York (with 25), Texas (with 40) and Illinois (with 29).

• 76% of the wrongful convictions involved eyewitness misidentification.

• 50% involved unvalidated or improper forensic science.

• 27% relied on a false confession, admission or guilty plea.

• 70% of the 250 people exonerated are people of color (60% are black; nearly 9% are Latino; 29% are white).

"These DNA exonerations show us how the criminal justice system is flawed and how it can be fixed," said Peter Neufeld, Co-Director of the Innocence Project. "DNA exonerations have helped transform the criminal justice system, leading to reforms in virtually every state, but there is still a great deal of work to do to make our system of justice more fair, accurate and reliable."

The first DNA exoneration in the United States was in 1989. "We never imagined when we started the Innocence Project in 1992 that so many people around the country would be freed with DNA testing," Neufeld said. "It's important to remember that DNA exonerations do not solve the problem - they provide scientific proof of its existence, and they illuminate the need for reform."

Cases involving DNA are negligible, compared with those where no DNA is involved and yet convictions are obtained based upon the same flawed evidence, eyewitness misidentification, junk science and false confessions. No platitudes about how wonderful our system of justice is can overcome the fact that we continue to convict with bad evidence. Full prisons, and felons tainted for life, are its legacy.

The Innocence Project has done extraordinary work in freeing the innocent through DNA exonerations. But it's not enough.

A Warm Welcome To New Blawgers: They Lied To You

2010-02-05T11:34:00Z

It's now happened a few times in the past few weeks, where I question a post from some newcomer to the blawgosphere and they get upset about it. The problem is that my reaction to their post is less than adoring. From their position, less than adoring means I have cruelly maligned their intellect and family. I've hurt their feelings and they let me know it.

I feel badly about hurting their feelings. I really do. Not so badly that I would take back my post, but badly that they fail to see it as part of the conversation, and instead see it as an attack. This happened again today, when I posted about Rachel Humphrey Fleet's post. I didn't realize it, but this was her first post. I only saw it because Venkat sent it to me. He thought it was worth a good laugh. I did too.

But I didn't "attack" it because it was low-hanging fruit. Rather, I saw it as another nail in the coffin of professionalism. Fleet thought she was being cute by likening social media to writing appellate briefs. Apparently, she's unaware of work/life balance, the goal of which is to finish whatever work is on the table in time for a long lunch, and seizing upon any idea, no matter how ridiculous, to crank out product in such a way that it won't interfere with the truly important things in life, like going to lawyer marketing conferences.

Here's a bit of information that Rachel likely didn't get at Avvocating, the conference where she learned about the joys of social media. There was supposed to be an additional panel, comprised of Mark Bennett, Brian Tannebaum, Jonathon Stein and me. This would have been the description of the presentation:

4 Angry Lawyers

Join 4 tech-savvy lawyers as they expose the ugly, unethical and immoral underbelly of online marketing and social media. We’ll hand over the mike to courtroom brawler, Jonathan Stein, inveterate curmudgeon Scott Greenfield, self-proclaimed-guru-hater Brian Tannebaum and online-scam cop Mark Bennett. Hear these guys sound off on misinformed SEO consultants, astroturfing, blog aggregators, Twitter abusers, vendors who overcharge for blogs and more. . . .

But it never happened because Avvo was too cheap to fly us out there, and there was no chance we were paying our own way to be part of Avvo's conference, like the people who want to sell marketing to lawyers are willing to do. The idea died.

We would have been the antidote to the cheerleaders, gurus and techno-lovers who inspire new blawgers to sign up and sign on. We would have told you something that no one else was going to tell you. The truth.

The choir is busy singing the praises of blawging and social media. Create a blawg and find happiness and success, goes the refrain. Write well and they will come. No one talks about the dark side.

We would have talked about the dark side. The blawgosphere is a tough place, where your peers may read your ideas and tell you that they are ugly. Butt ugly. That's the way the place has operated since its doors opened, and it still functions that way today.

Write something and someone may disagree with you, and do so publicly on their blawg. Promote yourself and someone may knock you off your marketing pedestal and make you look like a fool. Or worse. None of the cheerleaders mention that there is no guarantee that you will find love or adoration online. None mention that you may well find yourself the butt of a thousand eyeballs if your well-written blawg post is not well-received.

Fleet, still trying to be cute, responded by informing me that she "welcomes civil disagreement." This, of course, demonstrates both the typical narcissistic vision as well as a basic misapprehension of how discourse works. Does she think that opprobrium is subject to approval? Does she think that she gets to dictate the rules? Of course not. She's trying to defend her honor, feeling blind-sided by criticism when she thought she would be welcomed, even embraced, by the brotherhood of marketing lawyers, as long as she was "authentic". By the way, I use Fleet only as an example, not because she's done anything particularly heinous, but because she's quite typical. There are many far worse.

I've done a lot of negative opining about newcomers to the blawgosphere lately, as there has been an awful lot being published by newcomers that demands and deserves scrutiny. And there are plenty of newcomers to the blawgosphere, as it becomes a more mainstream marketing method for those who are tired of their silent telephone. I get it. I understand why you're here. But I didn't promise to leave you alone to promote yourself unmolested. Whoever sold you on the idea but neglected to define "conversation" is responsible. Maybe you're responsible. Maybe you're thoughts would be best kept rattling around inside your head rather than oozing out of your keyboard onto a public blawg.

Over the requisite lager, I bemoaned the state of affairs last night with Eric Turkewitz of New York Personal Injury Blog. Eric's been fighting this battle on his end as well, with particular emphasis on the scummy things that Findlaw is doing to market lawyers, particularly the creation of fake blogs. He summed up the problem, as well as the solution, in three words: Don't post crap.

Not as terse as the Turk, here's my version of fair warning to all new blawgers who have been sold on the idea that the blawgosphere is just a huge marketing opportunity for lawyers, where they can post any bit of nonsense they please with impunity, and be warmly embraced by the Lawyer Marketing Mutual Protection Society (LMMPS).

Welcome to the blawgosphere. It's a great place to put your ideas out to the public and have a conversation. But like all conversations, there's a chance that another party to it will disagree with you. That's how discourse work.

The blawgosphere is not a good place to expect that your carefully crafted marketing scheme will be warmly accepted without scrutiny. No one else owes you the ability to promote yourself. If your ideas or conduct can't withstand scrutiny, or you can't deal with dispute or disagreement, then you may not find the blawgosphere suitable for your purposes. No one will ask for your permission or approval before challenging you. You are not special, no matter what your mother said.

Every public utterance is on display in the blawgosphere, to the general public as well as your peers. There's always a possibility that someone will think poorly of what you think or produce or how you behave. If so, you should expect it to be the subject of a post. This is not, as some call it, shaming or public humiliation, but normal, peer reviewed scrutiny. It is not, however, free-ride marketing and self-promotion. The social media gurus lied to you.

That's the nature of the blawgosphere. Get used to it or get out.

Now you know. No more whining about it, please.

Breaking Even

2010-02-05T10:50:00Z

Via Above The Law and, cleaned up some, Volokh Conspiracy, Northwestern Law School Dean David Van Zandt,at the PLI Law Firm Leadership and Management Institute, offered his thoughts on the future of legal education. Included in his speech was this:

One of his most interesting tidbits was the starting salary that would constitute a “break-even point” for going to law school. In other words, what salary would you have to earn upon graduation in order to make going to law school an economically rational decision?

Van Zandt and some of his Northwestern colleagues did a study to determine the added value of a J.D. degree. They concluded that the break-even starting salary for a law school graduate is $65,000. Put another way, going to a law school with a median salary upon graduation that’s below $65,000 is not a wise investment.

Schools with median starting salaries under $65,000, which generally land somewhere in the 70s in the U.S. News & World Report rankings, are not good values. They need to either lower their cost to students and/or improve job opportunities for their graduates, according to Van Zandt.

Over at ATL, where most of the readers are, or more likely, want to be, Biglaw bench warmers, there was much quacking about the details. David Lat questioned whether Van Zandt's $65k was high enough, while others nipped at the edges of the number by noting that some schools charged more, others less.

(A break-even point of $65K seems low to us, given high law school tuition, the borrowing costs associated with student loans, and the opportunity cost of going to law school when you could be earning a salary in some other industry. We’ve reached out to Dean Van Zandt to ask for more detail about the data he utilized and the assumptions he made in reaching his conclusion. Another academic, Herwig Schlunk of Vanderbilt Law, believes that the break-even point is much higher.)

While accuracy matters, it obscures the more important point, one that we seldom think much about if at all. I can't remember a would-be law student, asking my advice on entering the law, considered it from a cost-benefit standpoint. It was assumed that becoming a lawyer meant that one would enjoy a financially comfortable life. It was a given.

Dean Van Zandt's raising the point, even if we quibble about the details, is important in that it puts the question squarely in issue. If you are not going to come out of law school and fall into a job/practice where you earn somewhere in the neighborhood of $65,000, you've made a poor financial decision.

Of course, at ATL, no one considers the application of this issue to criminal law, the nasty niche far under the radar of students aspiring to engage in the practice of important areas law, like M&A. Are there any prosecutorial or public defender offices that pay new hires $65,000 or more? Not that I'm aware of, making lawyers who want to enter into criminal law financial failures.

When it comes to criminal defense, I suspect that most lawyers come to it with a desire to spend their days doing it. It's not a money issue, as opportunities for vast wealth are remarkably limited. In that way, it can be considered more pure than more lucrative practice areas, attracting young lawyers for the right reasons rather than the money. There's not much money to be had, and nobody thinks otherwise.

On the other hand, if young lawyers gave much thought to the cost of their education versus the income they would anticipate deriving from it, one might suspect that they would think long and hard about whether their desire to practice criminal law was so strong that they would be willing to make a substantial financial sacrifice to do it. I mean, it's fun, but is it that much fun?

What's notable about the break even point is that the job market for young lawyers tends to divide into the Biglaw jobs paying substantially more, and all other jobs paying substantially less. There aren't many jobs out there for new lawyers offering $65,000 a year. Most of the jobs, obviously, fall well under the break even point.

So what to do about it. One solution is to reduce the cost of a law school education, but that would result in lowering the barrier to entry and more people wanting to go to law school. New law schools are opening as we speak, demonstrating that the ABA is of the view that we don't have enough lawyers, as opposed to too many. Perhaps everybody will be a lawyer someday. The more lawyers, the greater the supply and lower the salaries. And the all the other problems that come along with idle lawyer hands.

Another solution is to increase salaries, as if legal costs aren't high enough already. No doubt the public is saying, "darn, I should sue/defend more often since it's such a good financial deal and will help that nice young lawyer earn a decent living."

Dean Van Zandt suggests that changing the way law schools train lawyers, by turning the third year experiential, or even eliminating it altogether. He notes that law schools are resistant to this change, although his school, Northwestern, has made some fundamental changes in its program. To the extent that law schools fail to produce people capable of practicing law upon admission, Van Zandt leaves it up to law firms to provide the practical education young lawyers need to turn their law school experience into something remotely useful.

Nobody suggests, of course, that we stop producing more lawyers than society needs or can absorb. And certainly nobody feels any qualms about the fact that our prosecutorial and public defender functions rely on overworked and underpaid young lawyers who, if they had an ounce of fiscal intelligence, would have put their money into gold and opened a shoe store. Everybody needs shoes.

One thing is painfully clear. If you're looking for a decent investment, don't go to law school. And if you've already blown that choice, definitely don't become a criminal lawyer. It's like flushing your money down the toilet. Unless you happen to really want to do this for the rest of your life.

Learned Hand Doesn't Twit

2010-02-04T12:43:00Z

It was only a matter of time before someone would add two and two and come up with 37. It's part of the devolutionary process, striving to reach the lowest common denominator because the voices inside your head tell you it's the way to go. And so came the title of this post by Rachel Humphrey Fleet, a Seattle lawyer who attended Avvocating, Advanced Online Marketing Training for Lawyers. The title is Tweeting the Judge: How Legal Writing is Like Social Media.

Fleet paid attention to what was said, a reminder of how dangerous a little information can be:

I signed up because I find marketing mysterious enough, but when you throw in terms like Search Engine Optimization, Core Web Presence, Organic Search, and Click-Through Rate, I want to crawl back into bed. Two overarching threads of advice emerged at the conference:

1. Be authentic.

2. Engage in a conversation.

This made me feel better. I can do these things.

In plain language, this means to "be yourself" and have a conversation. She went to a conference to learn this. She then had an epiphany: "it struck me: I do these things when I write a brief."

The rest of Fleet's post offers some decent thoughts, neither particularly controversial nor novel, about brief writing. What's interesting is that she's conflated separate concepts to place herself clearly on the slippery slope. From there, it's all downhill.

There's no mystery as to how this happened. The same characteristics that make one persuasive in a brief, or before a jury for that matter, work in social media as well. But that doesn't mean that social media and legal writing are, or should be, the same, or that twitting your argument home will win the day.

Now that someone has attempted to breach the gap between legal writing and social media, let me say this as clearly as humanly possible. They are not the same. They should not be the same. If you think they are the same, or try to treat them the same, your client will pay dearly for your insouciance. Judges don't want to twit with you, and won't take kindly to your attempt to twit to them via your brief.

To clear up any confusion that may linger, the underlying ideas that Fleet promotes, authenticity and engagement, are crucial to all communication, regardless of whether it's technology's flavor of the day or legal argument. We've often discussed that attempts to adopt the personas that work for others, but which just don't fit us, invariably fail. We need to be ourselves, to find the methods that work for us, and then use them to the best of our abilities. This isn't anything new.

But the mere fact that these characteristics apply across the board has nothing whatsoever to do with confusing social media with appellate briefing, or any other aspect of lawyering. Let's put an end to this nonsense immediately, before the Slackoisie get all excited and start requesting that they be allowed to submit their motions via Facebook.

So be authentic. Engage in a conversation. And never, but never, confuse twitting with your legal briefs.

H/T Venkat

No Secrets Between Friends

2010-02-04T11:51:00Z

That technology has fundamentally altered the means of communication is too obvious for words. Chatting with your pal across the country is as easy as chatting with your pal in the same room, whether via email, cellphone, instant message, twitter, whatever. But the miracle may soon die at the hands of police, unless you're cool with the end of privacy.

Via CNET,

Anyone with an e-mail account likely knows that police can peek inside it if they have a paper search warrant.

But cybercrime investigators are frustrated by the speed of traditional methods of faxing, mailing, or e-mailing companies these documents. They're pushing for the creation of a national Web interface linking police computers with those of Internet and e-mail providers so requests can be sent and received electronically.

All these communications. All these juicy opportunities to gather information, maybe evidence, or just enjoy private conversations when business is slow around the precinct. Law enforcement wants its own special backdoor where it can get anything it wants now, for the mere asking.

The explanation for why this is needed, and justified, requires no great stretch. There are people out there doing bad stuff, and law enforcement needs access to it to protect us, and particularly our children, from these people. Who would want to deny police access to information that might save a child? No one wants to see a child harmed.

But the issue devolves to trust, and law enforcement has proven time and again that its "new professionalism" is a load of malarkey. They can't be trusted.

But the most controversial element is probably the private Web interface, which raises novel security and privacy concerns, especially in the wake of a recent inspector general's report (PDF) from the Justice Department. The 289-page report detailed how the FBI obtained Americans' telephone records by citing nonexistent emergencies and simply asking for the data or writing phone numbers on a sticky note rather than following procedures required by law.

In an incendiary October 2009 essay, however, Kardasz wrote that Internet service providers that do not keep records long enough "are the unwitting facilitators of Internet crimes against children" and called for new laws to "mandate data preservation and reporting." He predicts that those companies will begin to face civil lawsuits because of their "lethargic investigative process."

"It sounds very dangerous," says Lee Tien, an attorney with the Electronic Frontier Foundation, referring to the police-only Web interface. "Let's assume you set this sort of thing up. What does that mean in terms of what the law enforcement officer be able to do? Would they be able to fish through transactional information for anyone? I don't understand how you create a system like this without it."

Could it possibly come as a surprise to anyone that police "unanimously" would want unfettered access to electronic communications? Why anyone would spend time or money to determine such a thing is beyond me. Of course they do. Of course they should. The arguments in favor of it are clear and forceful, maybe even compelling. That's never been the issue.

There is a list, a very long list, of things that law enforcement would like in order to make it more effective in combating crime and identifying criminals. Every door that blocks their view makes their job more difficult. Every door that swings open upon command makes their job easier. Can we stop wasting money to conduct surveys and issue reports about the obvious?

What no report or survey has yet to address is the fact that law enforcement just can't control itself. It can't be trusted. Every time they promise not to stick their nose in where it doesn't belong, where they have no business being, they do it anyway. They just can't help themselves.

Sure, we want to catch child predators online. Using children as the justification to gain access to everyone's electronic communications is clearly their strongest position, since no one will ever argue that children aren't worth protecting. You can't blame them for putting their best foot forward. But we've heard that argument before. We've heard it many times before. It's always about the children, hoping that no one notices the breadth and scope of application that includes everyone, from friends to celebrities to neighbors to former spouses.

If the backdoor is built, and cries for its need are heard about every other year from law enforcement advocates who proclaims that electronic communications are thwarting their efforts to protect us and have become the weapon of choice from pedophiles to terrorists, then the miracle of modern communication will expose our every utterance. Will we continue to use it knowing that there is no privacy?

The bottom line is that no one can reasonably question the benefits of unfettered access by law enforcement to electronic communications, but similarly no one has come up with a way to assure that law enforcement won't take advantage of its power and abuse it. It always does. This brings us back to the same old question, which this latest cry for access fails to acknowledge or address. Are we willing to give up all privacy for the potential of safety?

Either way, why bother with another report or study or survey. We know the issues. We know the problems. Eventually, law enforcement will time it just right so that their demand comes when we're vulnerable, like a month after terrorists attack the World Trade Center, or a child is kidnapped, raped and murdered, and they will finally get their way. That's why they keep asking the same question, hoping that eventually, if the stars align, they'll get their way.

H/T Ed at Blawgreview

Readers Mailbag, Scratching Chalkboard Edition

2010-02-03T12:54:00Z

In the past, I've been viciously attacked for my refusal to comply with the Rule of Twitter by using the word "twit" rather than "tweet" to describe 140 characters of ~~meaningful thought~~ noise. It doesn't bother me that some people adhere to rigidly to moronic protocol, and I've got no plans to start calling people "tweeple" or employ any other cute phrases encouraged by today's technology flavor.

But then I received this email.

I've been reading your blog for the past few days. It was mentioned in another blog that I read.

Just in case you never hear this from anyone else, I'm writing to tell you that your intentional misspelling of "blog" is so distracting to me that I'm dropping your blog from my RSS reader.

Intentional or not, accurate or not, that habit comes across to me as your attempt to belittle the idea of blogs in general. Every time I see it in your postings, it makes me think that you would rather be doing something else - perhaps anything else - besides writing. For me, it gets in the way of what you're trying to say.

For whatever reason, it annoys me in the same way that chalk squeaking on a chalkboard does. I'll be[t] I'm not the only person who thinks that.

bkg

The email came from Brian K. Gray, Director of Technology, Mercersburg Academy in Pennsylvania. He's talking, of course, about my use of the word "blawg" as my chosen descriptor of law blogs. He's right that he's not the only one who finds this unpalatable. David Giacalone has never accepted it, and in fact refused to use the word "blog" either, insisting instead on using "weblog", from whence the word blog derives.

My initial reaction was to agree that Brian should immediately absent himself from Simple Justice, and avoid the horror of reading the word "blawg". But, since Brian isn't just your typical Slackoisie sycophant of trendiness or the lack thereof, holding a position of some importance at an educational institution, maybe he was on to something.

Not being a lawyer, and perhaps not being a regular reader of law blogs, perhaps Brian had yet to inure himself to our impious ways. After all, the use of the word blawg has been common for many years amongst law blogs. It appears in the names of some, and is a staple of the ever-fashionable ABA Journal. It's not like I invented the word.

I receive more than a few emails informing me of what I'm doing wrong at Simple Justice. Individual readers, almost invariably ~~dear friends~~ complete strangers, offer their thoughts about how I should change my evil ways, upon pain of their never reading SJ again or, as in Brian's case, about being removed from his RSS reader. Clearly, it's meant as a threat. I ignore them at my peril.

After some deep contemplation, and being a person of generous spirit, I've decided that I shall no longer respond to these threats by telling them to bite me. After all, it's their right to not read Simple Justice, and I would be remiss to not honor their rights and heed their concerns. On the other hand, I'm not inclined to alter my word choices, either for a particular word or against, because some person informs me that I either comply with his demand or ~~the kitten gets it~~ they will never read SJ again.

Accordingly, Brian Gray has spurred me to introduce a new policy. If I use a word, whether regularly or even in a single instance, that bothers, annoys, troubles or disturbs you, such that you can no longer read Simple Justice without hearing the sound of chalk squeaking, I will refund the full amount you've paid to subscribe. Fair enough?

If not, you can bite me.

A Hearing in Maricopa County

2010-02-03T12:32:00Z

Lost in translation following Judge Gary Donahoe's order that Sheriff Joe Arpaio's disciple, Adam Stoddard, spend some paid time at the Mesa Hilton, was that the other fine court officers in Maricopa County came down with a mystery disease that prevented them from transporting prisoners to court. Sickness can be so unpredictable.

The judges of Maricopa County, apparently, decided that they would no longer let the sheriff control their dockets. From the Arizona Republic:

And a sheriff's deputy chief, who last fall was held in contempt of court for the office's failure to follow the law, will appear before a judge on Friday to answer nearly 200 new counts.

More than half the contempt citations stem from Dec. 2, 2009, when 19 court transportation and security officers called in sick. One day earlier, a colleague of theirs in the Sheriff's Office was found in contempt and ordered to jail for refusing to apologize to a judge for going through an attorney's case files. Sheriff's officials have insisted the high volume of sick deputies was a coincidence.

This apparently goes far beyond the Stoddard sick out, and has been a perpetual problem in Maricopa County.

The Sheriff's Office has struggled to get inmates in court on time since last summer, and a series of steps that court and sheriff's administrators took to alleviate the strain has done little to help.

From Sept. 24, 2009, to Jan. 20, there were at least 198 incidents in which inmates were not brought to court on time or at all, and 19 Maricopa County Superior Court judicial officers filed paperwork to have sheriff's Deputy Chief Dave Trombi, the person in charge of transporting inmates, held in contempt.

This has given rise to a hearing to be conducted in Yavapai County before Superior Court Judge Robert Brutinel. Apparently, it was decided (by whom is unclear) that the judges of Maricopa County might be somewhat biased, and consequently the matter was sent out to be decided by an "impartial" judge.

Ordinarily, judges handle their own contempt cases. And contrary to most court hearings, the terminology "ordered to show cause why you should not be held in contempt" implies that the defendant must prove he is not guilty, instead of a prosecutor proving he is guilty.

Because these cases have been sent to a judge unfamiliar with the facts of the specific cases, Mundell has appointed Phoenix attorney Jeffrey Messing as a special prosecutor in the matter. Messing is a commercial litigator from the law firm Poli & Ball.

While it's heartening to see that there's anyone left in Maricopa County willing to take on Crazy Joe Arpaio on any subject, it's frankly incredible that the sheriff's failure to produce defendants for court requires that a hearing be staged outside Maricopa County to remove any allegations of taint or prejudice.

Of course it's prejudiced, since its derives from the contempt power which means that he starts from the position of being in violation of a court order. For the Maricopa judges to give up their inherent authority to control their own courtrooms, even to the extent of having an outside judge pass on their contempt order, is almost laughable. They can't even handle their own contempts, for crying out loud.

Of course, given that the rest of the county personnel lives in fear of having Sheriff Joe's starship troopers knock on their doors in the middle of the night, it appears that a crumb from a loaf is better than nothing.

H/T Powell Gammill

The Hard Work of "White Collar" Legal Fees

2010-02-03T11:37:00Z

Wayne State Lawprof Peter Henning wrote a piece for the New York Times DealBook on the fee "dispute" by R. Allen Stanford, left high and dry by the government, who now seeks to collect on a Lloyds of London insurance policy. The policy would provide $100 million to cover his defense.

Judge David Hittner has ruled in Federal District Court in Houston that under a company insurance policy Lloyd’s of London is responsible for paying up to nearly $100 million for the defense of Mr. Stanford and the other officers. While that should go a long way toward paying the legal fees of the defendants, don’t be surprised if the total legal bills exceed even that seemingly generous pool of money.

A generous pool of money indeed, but as Henning explains, it's not an inexpensive type of case to defend.

White-collar crime prosecutions and related civil actions are enormously expensive to defend, and defense costs can reach the tens of millions of dollars fairly quickly. One reason is the complexity of the cases, which require defense lawyers to spend months digging through piles of documents while trying to interview dozens of witnesses. It is fairly common for cases to come to trial a year or more after the criminal indictment, and there are often dozens of pretrial motions that will have been briefed and argued in that time.

And white-collar trials are usually measured in weeks, if not months, and that only compounds the expenses. Mr. Stanford’s trial is set to begin in January 2011, and don’t be surprised if the trial requires three months (or more) to complete.

What Henning may not realize is that these "reasons" for the astoundingly high legal fees aren't really that much different from the defense demanded in many criminal cases, white collar or otherwise, where the lawyers labor with equal if not more dedication, provide equal if not more services, and do so for a fraction of the fee. And these aren't inconsequential lawyers, but highly experience, highly dedicated, highly skilled criminal defense lawyers.

Here's the difference:

The lawyers who work high-profile white-collar cases come from some of the leading firms in New York, Washington and elsewhere, charging steep hourly rates — there are no contingent fees in criminal matters — and staffing them with a phalanx of partners, associates and paralegals. While it was almost unknown for leading Wall Street law firms to do criminal work 30 years ago, white-collar defense is now a major source of fees and one that appears to be largely immune to the recession that has hit the firms over the past two years. When was the last time you heard about layoffs in the white-collar department?

When Henning speaks of "leading firms," what he means is white shoe firms. Big Law firms. These are firms that can charge for five people doing the work of one, and getting away with it. These are firms that can't send out a one page fax for less than a grand. Somebody has to pay for the marble waiting room.

While I hate the characterization of "white collar," as it evokes the image of plea negotiations over tea served in cups and saucers rather than hard-fighting to keep a defendant from going to prison, Henning is right that they almost invariably require an enormous amount of work, both mundane and sophisticated, to defend. Missing from his description is that these cases, even if they don't involve someone as notorious as Allen Stanford, suck up time and focus to the preclusion of other work.

Take on the case and forget about being available for much of anything else for the next year or two. They become your life. They become your sole source of income. If you're not prepared for that, you're going to be very unhappy (and hungry).

But that doesn't mean that $100 million makes sense. As the old joke goes, "I could have lost that case for half the amount." when news of the plea and 5K1.1 letter hit the papers. It's still an astronomical amount of money, and it's still a criminal defense, no matter how many motions need be made.

In many of these cases, defendants' legal fees are indemnified by their corporate employers, with the begrudging help of insurers. But that's no panacea either.

Corporations are usually not very happy about paying to defend former officers accused of misconduct that has dragged the corporate brand through the mud. Often, such cases result in companies agreeing to a deferred or nonprosecution agreement for the ex-officers’ wrongdoing. And what insurer has ever jumped at the chance to pay out on claims for misconduct under a directors and officers insurance policy.

It seems to be more common lately for companies and insurers to resist paying for the lawyers because there is little prospect of recovering those fees if a corporate officer is found guilty. Companies usually include in their articles of incorporation or bylaws a provision requiring them to advance attorney’s fees to directors, officers and employees who are caught up in investigations or charged in criminal or civil actions. Although the companies and insurers may balk, the courts — especially those in Delaware where so many large companies are incorporated — have been particularly protective of the right to advancement of legal expenses.

That doesn't mean that corporations won't try to screw with payment of fees, challenging them, trying to renegotiate or cut them, seeking to stick their nose into the attorney/client relationship to "ascertain" the fairness of fees. It's hardly uncommon for some assistant in-house counsel, the kind who has never seen the inside of a courtroom, to "opine" that particular fees are unreasonable or unnecessary. In-house counsel are a peculiar breed, who issue opinions from behind a desk to people who normally view their word as gospel. They don't mesh well with trial lawyers, who tend not to be as impressed with their putative legal prowess as in-house counsel expect and are used to.

It seems lately that no matter how reasonable the fees may be, or how clearly the letter of engagement sets out how fees are set or payments made, the indemnifying corporations will do everything in their power to make the defense lawyer have to fight for his fee. Ironically, it's got nothing to do with their representation, which may be brilliant or awful, but rather with their bottom line and proclivity to love budgets. It's just about cutting costs.

As a result, criminal defense lawyers have two jobs when taking on white collar cases. The first is the hard work of defending the client. The second is the annoying work of dealing with the corporate monster. The second, which isn't openly accounted for in the fee structure, can suck up an enormous amount of time as well, often with greater regularity than the defense aspect of the representation. Plus, dealing with grocery clerks in corporations can be a very unpleasant experience, their having no sense of responsibility for their representations that "the check is in the mail" being accurate and honest. Unlike lawyers, honesty plays no role in the Accounts Payable Department clerk's job review.

As much as "white collar" work allows the lawyer far greater latitude to provide everything needed to defend, unlike cases where we defend on a shoestring and fear making a phone call to an expert will break the bank, it comes with its own set of problems and issues that can turn the best of defenses into years of misery. And not surprisingly, given the nature of the offenses and people involved, it's almost invariably because of money.

New Guys Don't Make The Rules

2010-02-02T14:07:00Z

Only about 15 minutes after posting The Bully Line did it dawn on me that I had omitted an entire aspect of the discussion that also needed to be aired. When I opened up shop here at Simple Justice, I wandered around the blawgosphere to get the lay of the land. I learned the ropes. I learned the rules. I understood that when I put my opinions on the page, chances were good that someone would come along and start shooting at me. Perhaps it would be small caliber, or maybe nuclear, but it was open season.

I knew the risk. I took the risk. I had no cause to complain.

Jamison Koehler argues for a different view. Before getting there, I want to note that I've read through Jamison's blog, and I like it and him. His perspective is more theoretical than practical. No one has challenged his conduct or ethics, and his role in this discussion isn't generated by defending how he blawgs, but rather what he thinks about the way the blawgosphere works.

The problem is that Jamison Koehler is new to the blawgosphere. His blog, though the content is pretty good, appears to be a marketing blog, lacking a name and heavy enough on self-promotion in the sidebar to keep him off the blogroll. I can't speak to what gave rise to his decision to blog, but it would appear from the outside that he's joined the blawgosphere based upon the omnipresent voice of marketers telling lawyers that it's the "thing to do" to promote one's legal services.

But that gives rise to the next question: Does the new kid on the block get to jump into the blawgosphere and expect us to change the rules?

The blawgosphere is changing in that many newcomers have significantly different motivations than those of us who came here merely a few years ago. We came to write and exchange ideas. The new guys come to market. It's understandable, given the vast industry of marketers telling lawyers it's the thing to do, but then what happened to learning the lay of the land before jumping in? I guess they took the marketers at their word, and never considered that they might be less than completely forthright.

The point is that the blawgosphere was here before the marketing crowd came along and figured out a way to scam lawyers into using it as a pure marketing vehicle. You came to us, not the other way around. Having done so, you don't get to demand that the blawgosphere reform its evil ways to accommodate your carefully crafted marketing schemes. The rest of us aren't here to make you look good, or even to leave you alone. Speak out all you want, but expect others to talk back.

The rules of the game were here for anyone to see before you set up shop. Don't complain now that you don't like the rules, or that your marketing guru neglected to mention that it wasn't going to be a free ride to fame and fortune. Welcome to the blawgosphere, and watch out.

The Bully Line

2010-02-02T11:51:00Z

Over the past few days, a debate about ghostblawging has been raging (though it was started by David Giacalone in 2004), beginning with Mark Bennett's Social Media Tyro, through new blawger Jamison Koehler (whose blawg will be an orphan until he gives it a name and tones down the marketing), to Carolyn Elefant at My Shingle. In the course of the debate, a secondary issue arose, and one that deserves a separate airing.

In the course of discussion, Amy Derby expressed her view that calling out those who promoted the use of ghostbloggers were "cyberbullies". Koehler picked up on this, following the suggestion that his failure to see an ethical problem with ghostblogging might be due to his being new to the blawgosphere:

And, yes, I am a newcomer. But I am against this type of public humiliation, or “cyberbullying” as someone has termed it. I also do not agree with Bennett and Greenfield that using a ghostwriter is necessarily dishonest or unethical. For one thing, I think they underestimate the sophistication of most people using the Internet. Most people visiting a lawyer’s website will be able to distinguish between the canned language of a hired writer and the distinctive voice of a lawyer, such as Bennett or Greenfield, writing for himself.

Thus, the question is squarely raised, where the line is drawn between fair criticism and cyberbullying, or "public humiliation" as Koehler would dubiously define it, Both Tannebaum and Bennett (and me too) take Koehler to task in the comments to his post, but Bennett said it best:

When you have had people steal your intellectual property to build their own credibility, when you realize that lawyers are paying people to pollute your comments with spam, when you have (most importantly) had clients’ mommas tearfully tell you that they trust you because they have read everything you ever wrote on your blog, I suspect that you may come around to my way of thinking, ethically and aesthetically. Meanwhile, I’m secure in my assessment of the ethics of using a ghostblogger, and unrepentant.

Whether lawyers should publicly call out other lawyers who are cheating (ethical violations) or polluting (aesthetic violations) on line is a question that wouldn’t suffer from public discussion (five-word answer: general deterrence requires hurting feelings). I’m sure that Scott Greenfield, Brian Tannebaum, Eric Turkewitz, and the bloggers named in Eric’s post can easily defend their positions against all comers, as can I.

But Rent-A-Brain is a strange place to start the discussion of whether those funding unethical marketing should be named and shamed. In that post I didn’t name any of the lawyers responsible for the ghostblogging; I merely linked to the page where they unabashedly named themselves as having paid someone to “increase their credibility.” Anyone who thinks linking to a page of testimonials is “cyberbullying” is—with all due respect—a damn fool.

The real problem, I suspect, has far less to do with the definition of cyberbullying than it does with the concept of blawging itself. For lawyers who believe that the primary purpose of a blawg is marketing, the idea that their effort to enjoy self-promotion, to garner public attention, to achieve business success via a blawg, is a two-way street is deeply disturbing. They want to be able to gain the benefit without any risk of peer review, or peer criticism.

Jamison Koehler calls is "public humiliation," which is quite revealing. Is it humiliation to be questioned, challenged or disputed? Once you put your voice and reputation online for all to see, you invite others to question your statements and conduct. No one makes you go public, but having made the choice to do so, you cannot cry foul when you're subjected to scrutiny.

The question hinges on whether the challenge is a fair one. It's not merely a question of right or wrong, meaning that those who disagree with Bennett (or Tannebaum or Turkewitz or me) can claim victim status. Indeed, we disagree with each other all the time, challenging each other's positions and questioning everything from paternity to the need for psychotropic drugs. And these challenges are what make for great discussions, and add enormous value to the blawgosphere.

The reason behind this is that our blawgs do not exist to market, and hence we have no fear of being questioned, challenged or disputed. Our blawgosphere is one of ideas and community, not marketing and self-promotion. The idea that someone will read what we write, what we put out for public consumption, how we conduct ourselves for the world to see, and call us out if we've behaved poorly. Our ethics, integrity and intelligence is on display, just waiting for some wag to "publicly humiliate" us. It's how we keep each other honest.

Most real blawgers have been told, at one point or another, that we're mean people for writing negative posts about others. The others believe that they are entitled to puff themselves and their thoughts free of criticism, whether because they are of the view that lawyers owe each other a free ride or because they never understood that by going public, they opened themselves up.

As Bennett pointed out in his response to Koehler, there's a lot of bad stuff happening in the blawgosphere. It's a tough place to function, and not for the faint of heart. To the extent that calling people out, naming names, arguing that it's wrong to deceive even in the name of marketing, puts the breaks on some of the bad stuff, then it serves the greater good. To the extent that those who want to be able to promote themselves without peer scrutiny call this public humiliation or cyberbullying, tough nuggies.

There's no right to enjoy the benefits of public self-promotion, assuming there are any, with impunity. When you put yourself out there, you invite scrutiny. If you can't take it, then you've come to the wrong place. Your peers may adore you or think you're dumb as dirt, not to mention unethical, deceptive and scummy. That's the risk of going public.

If you don't believe you deserve the negative reaction, then engage the criticism, fight back and let your ideas win the day. That's how we survive in the blawgosphere. That's how we survive as lawyers. That's how peer review works. That's how it should be.

Relative Worth

2010-02-02T11:14:00Z

Congress mandated that the victims of crime be given restitution as part of a defendant's sentence. In many instances, the amount of restitution can be ascertained with some precision, even with some squabbling around the edges. But as the definition of victim expands, and as victims become more aggressive in seeking restitution, the question muddies significantly. Such is the case for "Misty".

"Misty" is the victim of child pornography, appearing in still photographs and videos. That she suffered as no child should is not in issue. But Congress has made those who possess child pornography responsible for paying restitution to the children who appeared. The concept behind it is that without people who want to see the pornography, there would be no market to create it. Hence, they are responsible for the crime, and to the victim, as are the people who create the pornography in the first place. The possessors may never know, meet, recognize the children victimized in the creation of the images they "enjoy", but they are the audience for it, the consumers. It's consumer demand that drives the victimization of children.

From the Pioneer Press, a Duluth man pleaded guilty to possession of kiddie porn. He was quite the consumer.

When Brandon Arthur Buchanan pleaded guilty in federal court in May and was sentenced in November to 7 1/2 years in prison, prosecutors didn't ask that he pay restitution to any of the children depicted in any of the 16,339 photos and 877 video files he had on his computers.

The problem wasn't that the government took the view that he shouldn't have to pay restitution, but that they couldn't arrive at an amount. U.S. District Judge Patrick Schiltz was not satisfied with the excuse.

"Given the clear congressional mandate that those convicted of child-pornography offenses pay restitution to their victims, the court will no longer accept silence from the government when an identified victim of a child-pornography offense seeks restitution," Schiltz, of St. Paul, wrote in a Jan. 4 order.

"If the government declines to seek restitution," the judge wrote, "the government will have to give the court some explanation for its decision."

A victim did come forward seeking restitution. It was "Misty", by her lawyer. The amount sought was $3.4 million. This was not her first request.

Schiltz said he couldn't order restitution of nearly $3.5 million without some explanation from the government, but he couldn't deny restitution "without some explanation of why the victim is not entitled to even a single penny."

In the memorandum filed Friday, [U.S. Attorney Erika] Mozangue noted that "Misty" had submitted restitution requests in almost 90 cases in at least 30 judicial districts across the nation.

One defendant in Florida had about a dozen images of "Misty" on his computer, and after hearing evidence about how the child had been harmed by her abuse, the judge ordered the defendant to pay more than $3.2 million in restitution.

A federal judge in Iowa, however, ordered a defendant to pay "Misty" $5,000, and a federal judge in Connecticut ordered a defendant to pay her $500.

This is a tough one. While it's hardly clear that the connection between possessors of child porn and the children who appear in the images is sufficiently direct to rationally justify restitution, as opposed to an imposition of a fine that might fund a trust for their benefit, since restitution relates to a direct loss attributable to the wrongful conduct, Congress has spoken and the issue, for better or worse, is off the table for the moment.

But the same problem in justifying restitution per se remains in attempting to arrive at a rational amount. Since there is no attributable loss, the numbers are essentially arbitrary. Are they a product of the totality of harm to the child, and then ascribed to every defendant who might possess an image? If the harm to the child is determined to be $3.4 million, and the image has been spread to 1,000 defendants, should each bear restitution in that amount? Granted, it will never be paid in full, but it will do enough to make sure that the defendant, and his family, are under water financially for the rest of his life.

And who cares? Who feels sorry for the defendant who possesses kiddie porn? Clearly, the victim is worthy of great sympathy, but does $3.4 million in harm explain $3.4 trillion in restitution? And how does one court award $500 while another $3.2 million in restitution for the same offense? How does any court arrive at a rational amount, and yet the court is required to provide restitution. There seems to be no consideration of proportionality involved, but proportionality has never been Congress' strong suit.

While there is little sympathy for the defendant, per se, there is a substantial issue as to whether restitution is the proper framework for compensating the victims of child pornography. The award, whether large or small, seems wholly arbitrary, and this stems from the fact that Congress has decoupled victimization from the specific conduct of, and harm cause by, the defendant. It's never going to make any sense or give rise to a rational basis for an award for restitution. Yet Congress says it must be awarded.

What's curious in the Buchanan case is that Judge Schiltz first directed the government to explain why "Misty" should receive no restitution, if that was its position, but then directed that the government explain why the amount of $3.4 million was proper. It appears that the government was incapable of doing either. At least the judge didn't put the burden on the defendant to explain why it shouldn't order the latter.

Rights, Wrongs and A Decapitated Head

2010-02-01T13:01:00Z

As far as I'm aware, nobody has come out in support of the actions of two California Highway Patrol officers responsible for the posting of crime scene photographs of Nikki Catsouras' decapitated body on the internet. I could be wrong about this, given how many sick people there are, but if so, I'm not aware of it.

The family's suit against CHP, however, had some stumbling blocks. The right to privacy is personal, and is extinguished upon death. That leaves the dead fair game, but it was the law. But as ugly cases make for ugly decisions, the California ~~Supreme Court~~ 4th District Court of Appeals ruled against the two CHP officers' argument that they had a First Amendment right to disseminate the photographs. As described by Mike at Crime & Federalism,

Recognizing that the CHP officers forwarded unaltered photographs, the Court of Appeal still ignores their First Amendment defense. The Court acted as a super-censor: "Here, the picture painted by the second amended complaint is one of pure morbidity and sensationalism without legitimate public interest or law enforcement purpose." Slip op. at 17.

Mike takes a dim view of this rationale.

Where is the "sensationalism" exception to the First Amendment? The First Amendment provides that "Congress [and the States, vis-a-vis the Fourteenth Amendment] shall make no law ... abridging the freedom of speech []." Even morbid and sensational speech is protected.

He's right. As disgusting as these photographs, and the actions of the CHP officers may be, there is no First Amendment exception that precludes them from protection.

But that's not the end of the story, as far as I'm concerned. In my past discussion of this case, I urged a snarky test to determine whether the conduct was acceptable.

My brightline test would be simple: If it makes you want to puke, then liability exists.

But now that the California Supremes have ruled, a more useful analysis seems appropriate.

The officers involved possess a First Amendment right to free speech in their individual capacity. They are human beings, and as such have all the rights and protections the Constitution provides to each of us. This is true even if they don't happen to afford other human beings the full panoply of rights in the course of their employment, an issue for another day.

But when they put on the uniform, the shield and strap on the weapon, they do not do so in their individual capacity, but by authorization of the State. They take on a separate and distinct role, that of a police officer, a government official serving in a delineated capacity. Just as they can't pull out their gun and shoot someone who personally annoys them, their ordinary human actions are constrained by their official authorization and limitations. Each police officer may only have one physical body, but there are in essence two people there, one of which is a State actor.

The officers came into possession of the crime scene photographs of Nikki Catsouras in their capacity as officials of the State, not because they were regular guys cruising the highway on motorcycles. Their possession, and their subsequent conduct in disseminating the photographs, was not an exercise of their individual First Amendment right to free speech, but an exercise of their official duty as police officers, as officials of the State of California. While the First Amendment may safeguard their personal rights as human beings, it doesn't protect them as officials of the State to express themselves. Indeed, there is no "themselves" when crossing the line from badge-wearers to regular guys.

Mike's fear, that some reduced value "sensationalist" speech will come back to haunt all of us, blawgers included, strikes me as very real. It opens the door to enormous mischief, where it may be left to judges to decide whether speech is sufficiently "important" to be worthy of protection as balanced against something as amorphous as good taste. Sensationalism is rampant, often used to grab attention to make a point.

But then, do people who come into possession of such sensationalist and morbid photographs as those of the decapitated Nikki Catsouras solely because of their official capacity as police officers get to switch hats at will and enjoy the right free speech that exists to protect us from the government? That's a very different question. I would distinguish the roles, and hence the protection, offered by the First Amendment, leaving individuals with the full protection they were meant to have while stripping the government, and its officials, of protection for abusing their positions. The government doesn't need free speech protection. It has the guns.

There was no need to craft an exception for sensationalist speech that will likely inure to our detriment eventually just to find a way to make these two CHP miscreants liable. There was a better way.