Simple Justice

Rachel Rodgers' Neighborhood

2012-02-03T11:42:00Z

It would have been extremely funny to open this post, given what will come in a bit, with a video of Alec Baldwin in Glengarry Glen Ross as a means of emphasizing how bizarrely misguided advice can be. It would have, but I can't. I can't because Rachel Rodgers used it herself, starting her terribly sad post with the same quote.

Apparently, she didn't realize what the quote, and Mamet's story, was about. Baldwin's character, Blake, wasn't motivational, but a monster, a demon brought in to destroy and subjugate the spirit of the real estate salesmen beneath him. He reflects the worst in man. Rachel Rogers uses him as her exemplar.

My first couple of months as a solo, I spent a lot of time talking to prospective clients. At that time I was offering free consultations. During these consultations I would give away the milk, which meant that very few potential clients were buying the cow. Even worse, I didn’t clearly express to my prospective clients what the cow was and why it was worth my fees to get it. I had no idea what the hell I was doing and was quite perturbed that many of these prospects weren’t becoming paying clients.

Unfortunately, how to sell is among the myriad of things that we lawyers need to know yet didn’t learn in law school. When I was just starting out, I didn’t understand how important the mantra, “always be closing” really was. After months of being disappointed at how few clients I had, I realized that closing clients needed to be my numero uno priority.

Bearing in mind that Rogers ~~decades~~ months of experience color her epiphanies. When she explains how her early days as a lawyer failed to produce income, it's easier to understand why she shifted her focus during her second week of practice by embracing Alec Baldwin's ABC, always be selling. Hungry people need to eat. Rogers is starving.

Despite her tenacious resistance to appreciating that ethical duties of lawyers, and notwithstanding the poverty of her juvenile written and reasoning skills, it's hard to blame Rogers for her misguided views. Had she not persisted in her efforts to be a life coach who has yet to have a life, to tirelessly promote herself as a guru to the desperate and foolish, I would not mention her. But since she's chosen to scream about her genius, there isn't much choice. She doesn't even realize she's a pawn, doing the bidding of her elders who enjoy the benefit of making money off her silliness, making her the target as they pull her strings.

Rogers' head has been filled with delusions, that lawyers sell, sell, sell, and that's what brings success. She thinks lawyers sell real estate, sell used cars, sell day old fish. It doesn't matter what lawyers sell, as long as they sell. And close the deal.

When Jordan Rushie asked me about her post, it wasn't because he had any particular feelings toward a young lawyer named Rogers. Rather, he fears for his generation of lawyers.

I mean, who cares what your clients need, right? It’s all about making money.

Sounds like a great idea, except for one problem. As a lawyer, we are a fiduciary for our clients.

In other words, a lawyer has a duty to not to view clients as a “mark” or a “lead”. However, in the comment section, Rachel states:

If you feel like your services aren’t valuable or lack confidence, that can be a barrier to effectively closing leads.

…closing leads? Sometimes a client might not need your services. Sometimes they are better off saving their money. And it’s our duty to tell them that.

This is really a question of mentoring, of guiding new lawyers down the road of ethics, or competence, of integrity. Or empowering young lawyers to make money their God, that anything they have to do get a buck out of their "mark" is the road to success. While some try to reimagine the legal profession in ways that will better fulfill our obligation to serve our clients, others are redecorating the boiler room.

Just as Jordan was mentored to believe that skill and integrity are the tools with which a lawyer serves clients, and he strives to earn the trust that clients place in him, Rachel was mentored in marketing and self-promotion, where clients are leads and closing the deal, any deal, is all that matters. Sure, as a lawyer, Rachel Rogers shouldn't be such a puppet to the real entrepreneurs who fill her naive head with lies and delusions. But not everyone has the strength, the intelligence, the insight, to know when they're being played.

So don't blame Rachel Rogers for being the face of the new generation of lawyers who are so delusional and misguided that they demonstrate the worst of what can happen to the profession. Blame her mentor, Blake, no matter what name he uses.

Oh, what the heck. Here's the video.

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Appellate Truth

2012-02-03T10:41:00Z

Regardless of how much you love the Langdellian approach to pedagogy, the one thing nobody ever tells a law student is that the story upon which your education relies is, more or less, a fairy tale. Appellate Squawk airs the dirty little secret.

Trial testimony of Dr. Bag: “When the patient walked into the emergency room, he had a laceration to his leg about 3-4 inches long. He told me he and the defendant were arguing about whether A-Rod had ever played left field for the Penguins, when the defendant slashed him with a bottle opener. I cleaned out the wound, stitched him up and got his blood pressure back to normal. He went home the next day, walking, with Tylenol.”

At trial, there will be non-police witnesses who try to guild the lily, make things more horrible than they really were, but that runs the risk of having the defense rip the exaggerating scoundrel's lying tongue from his mouth. Police witnesses are a bit different, as they're professionals at testifying, having been taught the art of the wiggle to hold fast to their story, without regard to anything resembling reality.

While there may be a little gold-plating on the part of the witness, most witnesses testifying for the prosecution aren't inclined to tell more than the truth as they believe it to be. But once the trial is over, and the testimony set in stone, everything shifts to the lawyers to play the testimony as best they can.

DA’s brief on appeal: The victim hovered between life and death as he was rushed to the hospital, screaming in pain. His heart could have stopped at any moment. His leg nearly fell off. For hours it was touch and go, but the surgical team bravely labored through the night. At dawn the chief surgeon, mopping his brow, announced, “By George, it’s a miracle. He’s going to make it.”

Of course, it's not like the defense has no opportunity to challenge.

Your reply brief: What unbelievable rubbish. That wasn’t the testimony at all.

But that's argument by lawyers. The truth is what the court says the truth is.

The Appellate Division’s decision 6 months later:

“Defendant insists that the finding of substantial risk of death was unsupported by the evidence because the doctor didn’t use that exact phrase. We disagree. The victim, screaming, “Don’t let me die! It’s my little girl’s birthday!” was rushed to the hospital, hovering between life and death, pursued by the machete-brandishing defendant. At one point the victim’s heart stopped and had to be replaced. At another point his leg fell off. A team of surgeons working around the clock for 72 hours managed to restore him to life, but the victim remained in agony for weeks. Contrary to the defendant’s stupid, time-wasting argument, there is no formal catechism that a doctor has to recite to establish substantial risk of death. Anything involving blood is clearly sufficient.”

There is no criminal defense lawyer who has done any significant appellate work who doesn't have a story about this, the "facts" as found by the court that never happened, not even close, either in real life or at trial. There is an appellate decision, perhaps even one that's right on the law, premised on facts culled from a brief that flies in the face of every bit of testimony.

Yet, this is now the truth. The Appellate Division said so, and so it must be.

This is a bit hard to wrap your head around, suggesting that whoever prepared the decision couldn't be bothered to crack the transcript and vet the prosecution's brief for just a wee bit of reality. Perhaps some kid clerk, destined for greatness at Biglaw, the Academy or the bench, was charged with vetting the facts, and was either too raw or too susceptible to influence to comprehend that he was repeating a pack of lies, characterizing argument as fact. It's not like anyone expects busy judges to check up on such things.

It's a killer. You bleed at trial, doing everything you can to undermine the fantasy presented by the prosecution to assure a conviction. You score some points as witnesses concede their exaggerations, allowing the jury to see the face of a person disgraced by their now-exposed deceit. It may fall short of the truth, but the lie has been exposed to all. Well, maybe not all.

Not every appellate decision comes back this way. If the court takes a hard look, they may well find facts that bear a reasonable resemblance to something that was said at trial. And sometimes you have no clue what case they're talking about, because the 'facts" upon which the court relies don't look anything like the evidence at any trial you're familiar with.

The affirmance makes the evidence look clean and clear, despite the 9 days of jury deliberations, ending only after the third Allen charge, the one where the judge threatens to sell of the jurors' children's body parts if they don't reach a verdict. Over objection. In the appellate decision, the defendant's guilt is so ridiculously obvious as to make the reader wonder what idiot would possibly have taken the case to trial. What idiot, indeed.

By the time a case makes it to the Supreme Court, it's been so utterly sanitized that it invariably strikes readers as being beyond dispute. We may fight like dogs over the law to be applied, but the facts of the case, often set forth in a paragraph or two, despite the 7 months of trial. There's no room for tediously conflicting testimony that would only muddy up the deep and important thought necessary to explain the prosecution's virtue.

Squawk's post is, as usual, a very humorous presentation, though tainted with the undertone of frustration and exasperation of fighting one set of facts and losing another. It doesn't happen every time, but it happens far more often than you would think. Ask any appellate lawyer. Try to explain it to any appellate client.

The Whiteboard Chronicles

2012-02-02T12:16:00Z

When Mrs. Miller told the 5th grade class to invent a time machine and take the whole period if necessary, it was great fun and a wonderful exercise. The kids really enjoyed it and learned a lot. Of course, they didn't invent a time machine, but that was obviously not the point.

-- Principal John Friske

A couple of lawprofs, Bill Henderson and Andy Morriss, started a blog called the Legal Whiteboard, it's purpose being to fix us.

According to a lot of reputable media outlets, the sky is falling for both legal education and legal services. I understand the basis for this conclusion. A lot of lawyers, young and old, are unemployed or underemployed. The debt loads of graduating students are staggering. The established “brand” law firms are doing something they have never done before --- shrink, or at least not grow. This puts lawyers on edge and has a tendeny to spawn unhealthy, short-sighted behavior. The federal government, through the direct lending of the Department of Education, continues to fuel the lawyer production machine. So things may get worse before they get better.

* * *

Because clients and society want better, faster and cheaper law, I believe lawyers (including legal educators) have a professional duty to ardently pursue this goal. The hardest part of this assignment – and the most vexing and interesting – is how to parlay this transformation into a decent living.

The snarky reaction to "better, faster and cheaper law" is pick two. But he's right, this is what people want of us, whether it's attainable or not, and pursuing this, ardently or otherwise, is a worthy goal, particularly in conjunction with making a decent living, wiggly though the concept may be.

But two lawprofs?

Rather then leap to the obvious problem, it seemed responsible to see what they would do. After a round of backslapping and mutual admiration, the purpose of which could be the establishment of ascribed credibility or just the usual academic kiss blowing, a substantive post finally appeared.

Brent E. Newton, an adjunct professor at Georgetown University Law Center, has posted a legal education reform piece on SSRN, entitled The Ninety-Five Theses: Systemic Reforms in the American Legal Education and Licensure [Hat-tip TaxProf]. Judging by his title, Newton is hoping to spur a Reformation of legal education, akin to what Martin Luther did for Christianity in the 16th century. If that is his agenda, I will not stand in his way.

According to his GULC web bio, Newton's is Deputy Staff Director of the U.S. Sentencing Commission; prior to that, he had a distinguished career as a public defender. Newton is not the only adjunct-practitioner who has forcefully challenged U.S. legal education. In 2008, Jason Dolin (solo practitioner, adjunct at Capital), published Opportunity Lost: How Law School Disappoints Law Students, the Public, and the Legal Profession. In 2010, Steve Bennett (partner at Jones Day, adjunct at Fordham) published a law review article entitled, When Will Law Schools Change?

Where does one look for cutting edge thinking to reform legal education and the profession? Before answering, bear in mind that the Academy has a hierarchy of scholars, the very bottom of which is manned by ugly animal called "adjuncts." They are not invited to sit on committees deciding serious matters. They may be invited to faculty teas, but aren't expected to come and, if they do, nobody talks to them.

Law reviews. That's the answer to the question above. And law review articles written by adjuncts have two things going for them. First, because they're adjuncts, lawprofs view them as the voice of practicing lawyers, so as to be able to later claim that they are fully inclusive of all "stakeholders." But more importantly, by referring to law review articles written by these adjuncts, they sufficiently "serious" to be worthy of a scholar's attention.

Law professors rarely engage with these critiques; to acknowledge these critiques, some might argue, is to give them oxygen and legitimacy. I think this approach is a huge mistake. Any enterprise interested in long-term success cares about the perceptions held by its stakeholders -- and adjuncts are definitely in that group. In times of crisis, we need friends, not enemies.

Further, Newton, Dolin and Bennett are serious people and very capable lawyers. If you leaf through these articles, you'll see that they read like Brandeis Briefs against the legal education establishment. The authors present thoughtful, fact-based, and (albeit occasionally) trenchant arguments on why we, speaking as a legal education insider, should change.

My suspicion is that Henderson and Morriss are trying to acknowledge the various problems facing law schools, and to a lesser extent, the profession, but without the rancor surrounding Paul Campos and his provocative Inside the Law School Scam blog. No one flees harsh words as fast as scholars, who can't understand why their priorities of civility and respect aren't universally shared.

It seems that Henderson and Morriss are trying to push the envelope as far as they think they can without offending their colleagues, even going so far as to include a funny comic from the New Yorker at the bottom of a post. Ironically, they mean it as a subtle nudge to their fellow lawprofs, but don't appear to recognize it's relevance to them.

Having a discussion about achieving the goal of better, faster and cheaper law is certainly worthy. Not that it's easy, or even possible, but that we don't move forward by ignoring or denying problems. Yet, it rankles me that the intellectual elite think they can figure this out within their paradigm while ignoring the fact that there is a large group of folks out there who share their interest and concern, but who failed to get their thoughts published in a law review. Tossing crumbs to adjuncts isn't exactly the same as bringing all the stakeholders into the same room. With or without oxygen.

Will Henderson and Morriss reach out beyond the walls of the Academy to trench lawyers to find out how things really work? Will their sensibilities be offended should trench lawyers use vulgar, even disrespectful, language to express themselves? Will Henderson and Morriss think trench lawyers are sufficiently serious to be recognized as stakeholders in their discussion?

Time will tell. Or, perhaps they are just having some fun pretending to build a time machine, something we know from the outset they will never be able to do. Take the whole period if necessary.

Harris County Sheriff: A Sensitive Sadist?

2012-02-02T11:20:00Z

Whether the Harris County, Texas, jail is a particularly bad one in the scheme of jails is a question better left to locals. Having never been there, I know nothing about it. But there's nothing unusual in jails being thought of as unpleasant places, making the commentary on the website of Stradley Chernoff & Alford uncontroversial:

The jail personnel, especially in Harris County, seem to take a perverse pleasure in making the jail visit as unpleasant as possible. Their actions sometimes border on the sadistic, and the client who is finally released on bail, fatigued, dehydrated and humiliated, vows never to go back.

This isn't exactly a rare complaint, particularly as regards the treatment of visitors to jail elsewhere, who regularly complain about inappropriate touching, outrageous disrespect as if they're some lesser species, and a laundry list of abusive, often arbitrary, demands and requirements. After all, they're there to visit "criminals," presumptions and fact notwithstanding, and therefore unworthy of human treatment.

So, Harris County jail, and its Jefe, Sheriff Adrian Garcia, gets poked. Hardly unexpected.

But then somebody started to cry because of the hurtful comments. As Mark Bennett explains, that's a surprise. You would think the guy in charge of a jail was a Big Boy, able to take a poke in stride. Not so.

But Harris County Sheriff Adrian Garcia’s in-house flack, Alan Bernstein, got a burr under his saddle and rattled off an indignant letter to “Legal Assistant” at the firm:

So I hope you will live up to your principles by deleting from said web site this inflammatory and highly dubious statement: “The jail personnel, especially in Harris County, seem to take a perverse pleasure in making the jail visit as unpleasant as possible. Their actions sometimes border on the sadistic, and the client who is finally released on bail, fatigued, dehydrated and humiliated, vows never to go back.”

I’ve got to admit, there are some crafty “weasel words” in there. It says that jail personnel in Harris County “seem to” take a perverse pleasure in making the jail visit as unpleasant as possible. But the damage of an unproven allegation has been done regardless.

It's unclear what "damage" Bernstein, a former newspaper reporter who now serves to make sure that only nice things are written about the jail, is talking about. Winning "Jail of the Year?" Getting a centerfold in "Jail Digest?" If a jail has a flack, there must be a reason, because it's not like bad press is going to ruin its business and leave it without customers.

Like Bernstein, I'm particularly sensitive to "crafty 'weasel words'." As "weasel words" go, however, these are neither particularly crafty nor, in fact, weasel words. Often, the inclusion of such language, particularly when used in multiples, tells me that somebody wants to say something mean about someone or has no guts to stand up to the challenge, allowing them an out on the back end. Here, as Bennett correctly notes, it's a matter of imputing motive to some other person, which can only be based on the manifestations of conduct. We can't say for sure what someone else is thinking, and thus words that would be weaselly in one context are necessary for accuracy in another.

But I suspect Bernstein knows that, being a newspaper guy and all, and just sought the opportunity to toss in "crafty 'weasel words'" as a means of denigrating the commentary. Talk about crafty! When Sheriff Garcia picked his flack, he chose wisely. Alan Bernstein knows how to turn a phrase.

This isn't a criticism of Bernstein, who is just doing his job. The public relations guy is charged with making the place look good in the public eye. And when some "Legal Assistant" writes something that makes the place look bad, or makes his boss feel sad, it's his role to do what he can to deal with it. Indeed, as Robb Flickman notes in a comment to Bennett's post, he's long found Bernstein to be an honest and helpful fellow. But even honest and helpful fellows have a job to do.

The underlying problem isn't that Bernstein is trying to strong arm the firm into removing its comment. That Sheriff Adrian Garcia is a sensitive soul doesn't make him a bad person, though guys who run jails aren't usually delicate teacups. The problem is that they're treating this as a public relations problem rather than a reflection of a deeper problem, that the actions of jail personnel "border on the sadistic."

In his letter to the firm Bernstein offers, “If you have [specific evidence], please provide it to me and I will relay it to jail commanders for corrective action.”

What planet does Bernstein live on? The offer to relay evidence to supervisors is like an offer to whitewash abuse. The chain of command in a police department does not root out misconduct. That’s why internal-affairs divisions exist.

Allegations of abusive conduct at jails are particularly problematic, as it's invariably a matter of a pissing contest between inmate or visitor and guard, the battle being a foregone conclusion, and given the control a jail has over the well-being of the inmate, there is enormous concern about the price to be paid for complaining. It's one of those instances where, right or wrong, you lose.

Whether the fault for this is Bernstein's or Garcia's can't be said, as whatever was discussed about the handling of this criticism isn't available for outside view. This is probably for the best, given that the sight of Sheriff Garcia weeping at the hurtful words written about his jail are likely too much to bear. But it raises an important question:

Steph Stradley asks, “doesn’t the Sheriff’s Department have better things to spend their money on than scouring the web to find unhappy words about them and send long, whiney letters?” I know it’s a rhetorical question, but I’ll answer it anyway. Sure it does: it could spend its P.R. money investigating conditions in its jails.

Which lead ineluctably to one conclusion:

That Sheriff Garcia is more interested in trying to stifle criticism than in investigating abuse helps explain why abuse persists.

And that strikes me as much better reason to cry. It hurts when someone suggests your people are sadists. It hurts more if they're right. If you don't want to be hurt, then fix the problem.

Sometimes, Sorry Is All There Is

2012-02-01T11:53:00Z

In an age where every vehicular death seems to demand severe criminal punishment, and if there is no punishment to be had, a new law to enable it, it's rare that a defendant walks out of court. But 53-year-old Kent Lowrie, after expressing his sorrow at the death of 6-year-old Zhaneya Butcher. walked away.

There is no death of a child that doesn't break hearts, no matter how cold you are. And it's understandable that her parents are furious with the sentence of 5 years probation imposed of Lowrie after his plea to vehicular manslaughter. No parent would feel differently. But this is why dispassion, rather than anger and hatred, is a better guide.

From the Daily News:

Lowrie's 1999 Mitsubishi Montero plowed into the youngster on 104th Ave. in Jamaica, Queens, last July while she was visiting her grandparents.

The Brooklyn girl died five days later.

Lowrie's sister said her brother didn't see the girl when she came out from between two cars in a sprint for the ice cream truck.

His blood-alcohol level registered just slightly above the state's legal limit of .08.

There was no evidence that Lowrie was speeding or otherwise careless. While his BAC was just above the arbitrary .08 limit, the margin of error had to be taken into account. He was a truck driver by occupation, which could be seen as a plus or minus. Whether he was adept at driving after a couple drink or not isn't known, but there is nothing to suggest that it played any role whatsoever in the death of Zhaneya. Regardless, nobody wants to harm a child, no matter what the fault.

The flip side, that young Zhaneya Butcher ran into the road from between two parked cars to reach the ice cream truck, one of the great joys of childhood, makes this story even more tragic, and more difficult. According to the News, a women, whose connection to the case is unclear, lashed back at the outrage for the sentence:

But outside, a woman with the defendant lashed out at the victim's family as Lowrie hid his face beneath a leather jacket.

“People should keep their kids in the house and not running between parked cars,” the woman snapped as she guided Lowrie down a Queens street.

It's unfortunate that anger flows both ways, as this sort of comment inflames rather than calms. It's not that it's inaccurate, but that no one who loses a child needs to have their fault rubbed in their faces. One can't reasonably blame a 6-year-old for running into the road between parked cars. That's what children do, foolish, dangerous things.

In the absence of neglect, or the unthinkable, an affirmative approval for little Zhaneya to run into the road, it's similarly hard to blame the grandparents. Controlling a child is something adults strive to do, but they aren't always easily stopped, and they rarely have an appreciation for the warning. Kids are kids, much as they should be treated as children regardless of which side of the courtroom their conduct puts them.

What makes this case remarkable is that neither the prosecution nor judge allowed the sorrow of the death of a child to inflame their passions and use the system as angel of vengeance, calling for extreme punishment or the failure of the law to deal with the evil of drunk driving. They discharged their duties as they should, even though no one got to be on TV spewing outrage and hyperbole.

At sentence, Kent Lowrie spoke of his sorrow at the death of a child. So too did his lawyer, John Tumulty. I add my voice to the sorrow of the death of 6-year-old Zhaneya Butcher, not because I had anything to do with it, but because I'm a parent and a human being.

That it isn't enough to soothe her parents is completely understandable. There is nothing that can make the death of a child better. Not even life imprisonment. Not even execution. But there is nothing more the system can, or should, do. I am terribly sorry for their loss. It's not good enough, but that's all there is.

NACDL Prez: Bring Back the Loyalty Oath

2012-02-01T10:42:00Z

In the December issue of the Champion, National Association of Criminal Defense Lawyers president Lisa Wayne pounds the pulpit about "pious punditry." It's time to stop criticizing our "brothers and sisters."

Who needs prosecutors and a cadre of law enforcement critics when all you have to do is flip on any mainstream media outlet and watch our colleagues chastise each other with armchair criticism? We are correctly indignant when others bash defense lawyers for defending unpopular clients, but we should not assume that we have some special license to criticize our brothers and sisters of the defense bar.

This pious punditry usually takes the form of a disapproving observation concerning legal strategy that is likely to result in a disaster for the client. Comments sometimes focus on pretrial pitfalls, with defense lawyers pointing out inadequacies in defense tactics or fronting potential strategies that might be employed by the defense without thought to whether the government has considered the theory. I have even heard scathing remarks regarding the lack of trial skills exhibited by the defense lawyers handling the case.

Wayne is talking about lawyers taking to the airwaves at the drop of a hat to offer some pithy yet controversial attack on a fellow criminal defense lawyer. Her first point, that CDLs are all too happy to race to the studio at the slightest hint of airtime despite having no clue what they're talking about.

My close friend and respected NACDL colleague Jeralyn Merritt taught me early on that if you decide to comment on a high-profile case, you should immerse yourself in the case as if it is your own. Read as much as you can about the case, including pleadings, affidavits, and warrants. This kind of commitment requires not only a great deal of time, but pushes you to become vested in the case in a fashion that parallels your devotion to your own cases. This plan of action makes you more cautious in your approach and remarks. Another good rule of thumb is to reach out to the defense team. If you have garnered the respect and credibility of a colleague, you may be a more effective public educator than the lawyers immersed in the case. Lawyers in the grips of a media-frenzied case, particularly with a client that everyone loves to hate, will always appreciate a friend.

It's long been a problem that lawyers show up to talk about cases where they're no more knowledgeable than the guy who drove them to the station, but ego, the chance to get on television no matter how little they know, compels them forward to spout words on air. Sure they may have no greater information to share than anyone else, but if they refused the gig, how could they twit about what an important media pundit they are?

But then again, the demand for information is immediate, not two weeks from next Tuesday. Wayne writes about Jeralyn Merritt, whose blog, TalkLeft, is on top of legal/political issues in real time. No doubt Jeralyn, as would we all, love to be able to immerse herself in every detail of every subject of every post. But it's not possible, nor would anyone want it to be required as no timely commentary would ever be available.

Still, the point that anyone who agrees to speak have a clue is a good one, and if a CDL has no greater knowledge about a case or issue than what can be read in the newspaper, he's got nothing to offer that will enlighten anyone. As a rule, make no one stupider for having listened to you.

But Lisa Wayne doesn't stop there, and starts down a path that leads to problems.

Internal defense bar criticism is not limited to media outlets. It crops up at NACDL lectures, social events, and on listserves. Why do we feel the need to bash our own? Are we jealous, arrogant, or just looking for 10 minutes of fame? We have all done it, yours truly included. I have rolled my eyes and remarked out loud, “Can you believe she would say or do that in this case?” We are ego-driven beings. It is why many of us are attracted to litigation. Yes, I said it. But, more importantly, despite craving attention, we are a group of compassionate, thoughtful, and loving human beings. I have no doubt that my colleagues do not wish to say anything that would move any client closer to a guilty verdict.

My description would be more like feral cats. And as everyone knows, feral cats aren't easily herded. Not even "compassionate, thoughtful, and loving" feral cats. And indeed, few CDLs want to say anything that would encourage a verdict of guilt, though the implicit connection between "bashing our own" and helping to convict a defendant is hardly clear. What an NACDL president isn't allowed to say is that, while some criminal defense lawyers are "among the best," others aren't. Sometimes, CDLs screw up. Sometimes, they do and say just awful things. And sometimes, this becomes the subject of criticism.

Rather than call for the "brothers and sisters" to lend a hand, lift up those who are blowing it and help them to better serve their clients, Wayne finally arrives at the last stop on the road to perdition.

Let’s take an oath to stand together, side by side, united in our goal of advancing a criminal justice system that provides effective representation for every client. I can imagine my mother, Juanita Wayne, quoting dialogue from Bambi on this one: “If you don’t have anything nice to say, don’t say anything.”

If only there was a model we could follow to achieve this internal cabal to conceal our faults and protect each from their consequences. Like, say, the Blue Wall of Silence?

Wayne is absolutely right to criticize criminal defense lawyers who bash others for sport, or those who curry media favor so they can impress their twitter followers when they have nothing to contribute. But she steps over the line, way over, by suggesting we employ a McCarthy-like loyalty oath to compel us to circle the wagons and either speak the party line or remain silent.

What distinguishes criminal defense lawyers is our willingness to think critically, about ourselves as well as others, and gives us the legitimacy to offer insight, whether pleasant or not. Not ignorant talk. Not self-promotional speech. But honest, well-conceived and thoughtful. And if that sometimes takes the shape of criticizing our own, that's the price of honesty.

H/T Noah Clements

Schools Have Rules: Bad Hair Day Edition

2012-01-31T12:17:00Z

That the Madison Academy in Burton, Michigan, the Home of the Eagles, has a hair policy for boys isn't particularly surprising. As was learned from the mistakes of the 1960s, long hair breeds ideas, and ideas are dangerous. Then again, so is cancer.

From the Detroit News via Radley Balko:

Not long ago, J.T. Gaskins was honored on his high school's "Wall of Fame" for perfect behavior.

Now he's doing school work from home after being suspended by the governing board of his charter school over the length of his hair.

The 17-year-old leukemia survivor said he decided over the holidays to grow out his hair and donate it to Locks of Love after learning that the sister of a family friend had cancer.

In the process, officials at Madison Academy in Burton ruled Monday that Gaskins' hairstyle is violating school policy.

It's not that the school wants to suspend J.T. They couldn't be more sympathetic. Well, actually they could be.

"I need his hair out of his eyes and off the collar," Kneer told the Associated Press. "I really want this boy to be back in school. I feel like combing his hair wouldn't be a big concession … He doesn't have hair down the middle of his back. It's an inch over his collar."

So close, but rules are rules.

Just as "zero tolerance" was the favored mantra of those who wanted to demonstrate their steadfast dedication to the flavor of the month, it has now fallen somewhat out of favor as a reflection of inflexibility and knee-jerk reaction. But when it comes to school policies and the demands placed on children, it remains the beloved basis for administrators. The fear is that once a policy is breached, regardless of reason, schools will devolve to chaos. That's what comes from teaching Lord of the Flies.

How and why hair length of young gentlemen has gone from a matter of transitory personal expression to the death of western civilization isn't exactly clear. Granted, the mullet is just bad taste, but a great many schools seem to believe that the homogenization of hair length is critical to their mission. Having had long hair myself years ago, the worst that can be said about it is that it takes a lot more work to care for than short hair.

However, assuming that those in charge of schools are entitled to dictate policy, and that parents have a choice of whether to send their children to schools with certain policies or not, the efficacy of Madison Academy's hair code isn't at issue.

That the school can simultaneously laud J.T. Gaskins on its Wall of Fame, empathize with his being a cancer survivor, laud his charitable goal and yet suspend him for violating a school policy of such trivial and dubious significance, makes this story significant.

Not long ago, Senior Judge John Kane of Colorado wrote that we live in the Age of Administration. Rather than address how the inflexibility of the hair rule works against so many of the other pedagogical interests, so many important lessons schools seek to teach their students, the administration of the rule, simply because it is a rule, must prevail.

There is no shame to the importance of the grocery clerks if they come to a situation where they realize that their beloved rules don't fit as well as they thought. There are times when a thoughtful change is warranted, or when an exception for extraordinary circumstances should be made. But the fear that any variation, any sign of weakness, will be the death of the rule. And as goes one rule, so goes all rules. Once an exception is made, no rule is safe.

For many, they not only understand the grocery clerk's mindset, but agree with it. It's like "negotiating with terrorists," in its absolutist need. Except it's not like that at all. The problem is the inclination to make rules about everything, as if we can control, in advance, every aspect of life to achieve rule-born perfection. As lawyers, dealing with the product of legislatures designed to address a particular problem but constantly fending off the rule of unintended consequences, we know only too well that there will inevitably be a situation where a law, or a rule, works out poorly, proscribing something it was never meant to proscribe. We argue that this wasn't the intent, and that it should get a pass.

Schools present the problem as badly, if not worse, than does society at large, both because it affects children (who don't deserve to be dealt with so summarily) and because of societal interests that do everything in their power to protect children from everything under the sun. They have policies galore. They have rules covering every conceivable bit of conduct. They love rules.

Perhaps some school will consider a primary rule to do no harm, to which all other rules are subject. Or perhaps somebody in the administration of the school will decide that it's time to end the age of administration and stop the grocery clerks from going down their checklists. Until then, both zero tolerance, and the mere adoration of immutable rules, are teaching a great lesson to children, that there is no reason to think when deciding on conduct. Just look at the rules. Great lesson.

Resistance is Futile

2012-01-31T11:08:00Z

While the Occupy Movement has failed to provide any clear message of purpose, it's provided abundant video footage of police at work, allowing many to see, and hence judge, whether the cops' use of force meets expectations and societal approval.

Another opportunity arose at Occupy DC yesterday.

While unlikely to cause the visceral outrage of other images that have come out of the protests, it provides an exceptionally good opportunity to consider the acceptability of force by police. At Volokh Conspiracy, Orin Kerr posted a poll as to whether the officer tasing the protester acted "appropriately." As of this writing, the poll reflects that "no" votes are slightly ahead of yes, with neither mustering a majority. The comments to the post are even more illuminating.

On one end of the spectrum, Musing Jester thought the answer was clear:

Where is the option – Occupiers are not considered to be people and therefore have no right…?

On the other end of the spectrum, self-proclaimed ethical vigilante Jack Marshall similarly thought the answer was clear:

Gee, would you rather they clubbed him? He was interfering with legitimate police work, he was resisting a lawful arrest, he was agitated. It was a good use for a taser if I ever saw one. Why should police officers be put at any risk at all by these defiant jerks?

It was obvious early on that this pointless Occupy nonsense would end in violence, and I only hope the media and the Obama administration pays a high price for encouraging, enabling and trying to legitimize the most juvenile, incoherent and narcissistic protest I’ve ever seen….and I’ve seen a lot. Even been in one or two…

A former prosecutor, Anteus, gave the official response:

As a former prosecutor of police brutality cases, I can say without a shadow of a doubt that this force was justified. Short version: do not resist arrest. Longer version: do not ever resist arrest. You can contest the arrest later. An arrest is not the opening of a discussion. The police are trained to use overwhelming force as a means of minimizing injury. Sort of like shock and awe. Absent overwhelming force, the fight goes on and people get hurt really, really badly.

Still others pondered the police "use of force" policy, suggesting that as long as the cops complied with their own rules, the question was answered.

Curiously, a great many who thought that the police rushed to force, whether for failure to warn, to make any effort to talk the protester off the ledge before seizing him, saw this as a very gray situation. Some saw the protester as drunk or unbalanced, while others had issues largely because of the over-wrought assumption that Tasers are non-lethal.

There seems to be two basic mindsets at work here, the first of which falls along the spectrum of police compliance and the second along the spectrum of whether you are decisively for or against the cause, a point made by commenting lawprof Dan Kahan.

two other options

_______yes, unless he was actually protesting abortion outside an abortion clinic, in which case no

______ no, unless he was actually protesting abortion outside an abortion clinic, in which case yes

As to the latter, there isn't much to discuss; it's essentially a matter of rooting for your team, regardless of anything else. As to the former, however, very few of the people inclined to comment gave much thought to the question of why police are allowed to use force at all.

As one person commented, Tasers have become a crutch for police, a quick and easy means of bringing any confrontation to a close consistent with the First Rule of Policing. Rarely causing death, or permanent scarring, and likely to put an end to any resistance before it devolves to the point of a police officer being forced to break a sweat or get a headache from having to think too hard, the Taser has become the go-to tool for compliance enforcement.

But it's force. It hurts the person tased.

If we removed the Taser from the equation, and instead the officers threw the protester to the ground and punched and/or kicked him, would it be an acceptable use of force?

The protester, after proclaiming that he's done nothing wrong and without being told otherwise, "resists" by pulling his arms away from the seizing officers. While this is rarely a good idea, given that the cops are never going to back down as a result and, invariably, will escalate the seizure, this is compliance from the cops' perspective rather than from any sort of rational basis for the use of force. The police won't allow their quarry to win, regardless of right or wrong, and from a pragmatic point of view, the escalation to violence is inevitable.

Missing from this discussion is any rational concept of whether this is how it should be. The protester was not violent. Granted, he called the police a nasty name, and, according to reports, ripped down their notices. But he affirmatively touched no one, cop or civilian, and there was no indication whatsoever that he would engage in violence but for the police having forcibly seized him. Even then, he pulled away, but did nothing that would suggest an attack against the police or give rise to any fear of harm by an officer.

It seems that we've lost all sight of the use of force along the spectrum of options for police confrontations. Few would dispute that the police are entitled to use force to defend themselves or others, but few are concerned that force is used when there's no threat of violence at all. Once we've divorced violence on the part of the protester from the use of force by the police to compel compliance, thereby excusing them from making any effort to de-escalate the situation or, worse still, address the situation without anyone getting hurt, we've accepted force by police at will and without any rational basis as justification as a legitimate method of obtaining compliance.

And it seems remarkably untroubling, even to those who voted "no" in Orin's poll but still see gray when it comes down to it. It may be that the best advice is to comply if you want to avoid getting hurt, but that is practical rather than doctrinal. It used to be that the police couldn't use force at will. It appears that we've not only given up the expectation that cops try to avoid the use of force against non-violent people, but that we've come to accept it as a legitimate means of compelling people to submit to their authority.

The fact that someone was hurt doesn't seem to bother people very much any more when it's at the hands of police. That's a serious problem.

Asked and Answered? (Update: Fail)

2012-01-30T12:03:00Z

President Obama, who famously refused to give up his smartphone upon election until he found out that everybody had his number, decided to hold a(nother) contest for Americans to ask their president a question. In case you're wondering, the old days when a citizen could walk into the White House, stick his head in the oval office and ask the big guy something (plus munch on some free cheese) is gone.

The contest provided the the most well-received questions would be answered by the president at 5:30 p.m. eastern time today. The number 1 video question (and number 2 overall) came from retired LAPD Deputy Chief of Police Stephen Downing, who also sits on the board of LEAP,

While public perception, according to the Gallup Poll referenced, is that we've had enough of prisons warehousing marijuana offenders, and really, really had enough of the government going after medical marijuana users and providers, the government's position remains Reefer Madness!!! Marijuana remains a schedule 1 drug, meaning that (according to the government) it has no legitimate medicinal use whatsoever. Some disagree.

Last year's contest placed the question of legalization of marijuana at number one, when another LEAP member asked the President whether it was a worthy question for debate, to which he responded with enormous charisma and a disarming smile, "an entirely legitimate topic for debate." Of course, that's where the discussion ended.

My advice is to crack open a well-aged French cabernet, pop some Redenbacher, and tune in to the President's reply to Stephen Downing this evening. Just to add a bit of prurient interest, if the President actually responds to the question, down the full cup of wine and tell your spouse they're going to get lucky tonight. You never know.

Update: This release from LEAP says it all.

YouTube Ignores Cop's First Place Marijuana Legalization Video Question for Obama

Site Finds Time for Questions About Dancing, Late-Night Snacks and Playing Tennis

WASHINGTON, DC -- Today YouTube ignored a question advocating marijuana legalization from a retired LAPD deputy chief of police that won twice as many votes as any other video question in the White House's "Your Interview with the President" competition on the Google-owned site. They did, however, find the time to get the president on record about late night snacking, singing and dancing, celebrating wedding anniversaries and playing tennis.

It's all about priorities. And having fun. Speaking of having fun, any wine left?

NYSBA to Gitmo Defense: We Don't Care

2012-01-30T11:08:00Z

The Department of Defense lawyers who are charged with defending the enemies of our nation sit in an office in Virginia, where the talk on telephones provided by the DoD and type their papers and emails on computers provided by the DoD. Just to be sure, the DoD thought it best to have each of them sign off on a consent form that since the government owns all that stuff, the DoD has the authority to monitor it. Every last bit.

It sounded a little screwy to the defense lawyers, since it flies against every ethical precept of client confidentiality they had ever learned. Not that anyone was necessarily surprised about it, the government preferring to know more rather than less, but these are lawyers, even if they get a DoD paycheck and work on DoD computers.

The directive from the Convening Authority for the Office of Military Commissions to the Office of Chief Defense Counsel came in August, 2010. Figuring this might be a bit of a problem, and completely unwilling to sell their clients out, one of the lawyers who was admitted to practice in New York sought an ethics opinion from the New York State Bar Association on the demand. There was no doubt that they had a firm grasp of their ethical obligation to keep their clients' privileged communications confidential from the DoD, but it would prove enormously useful to have an official ethics opinion that said so, something to roll up and smack the guy from the Convening Authority in the face.

So on September 1, 2010, the request was sent to the New York State Bar Association for an ethics opinion. Bearing in mind that the DoD lawyers defending the Gitmo detainees have no independent ethical overseer, and look to their bar of admission for their ethical determinations. They are admitted in one state, situated in another and, as here, representing detainees at tribunals on a military base in Cuba. Cuba, unfortunately, offers little on the ethical proscription front, but then, it's law doesn't apply at Guantánamo anyway.

Notably, unlike some other states, New York ethical discipline is handled by a disciplinary committee under the auspices of each of the four Appellate Divisions of the state. The NYSBA is a voluntary association, rather than the controlling association for all lawyers, and one of the services it provides is ethics opinions upon request. The opinions aren't binding, but provide guidance and some persuasive authority. More importantly, by seeking and adhering to an NYSBA ethics opinion, one can demonstrate good faith reliance that will serve to vitiate any subsequent claim on deliberate unethical conduct.

So while it's not the final word, it matters and helps. And the DoD lawyers really needed some help staring down the government on behalf of their enemy combatant clients, who may be the only group in America without a Facebook fan page.

A few weeks later, a draft opinion arrives as a "head's up" on the final, setting forth in painful detail everything the DoD lawyers believed to be true, that they could not allow the government unfettered access to their clients' confidences. Duh. Just hold on a bit longer, brother, and the cavalry would arrive. The official opinion was on its way, with few it any changes, concluding that they may enjoy the government's largesse, but were still lawyers obliged to protect their clients. Not quite a stretch as ethics opinions go.

A few weeks went by. Then a few months. Silence. Tumbleweeds blew down Broadway in Manhattan, and the DoD lawyers began scratching their heads, wondering whether the government intercepted the opinion in the mail. No such luck. About March 14, 2011, the very official NYSBA opinion arrived.

We conclude that we lack jurisdiction to resolve your question because the New York Rules of Professional Conduct (the ''New York Rules") do not apply to the situation you describe. The jurisdiction of this committee is limited to questions arising under the New York Rules. The committee is charged with interpreting the New York Rules by answering questions of professional conduct that are governed by these rules. In your case, the threshold choice of law question is whether your conduct is governed by the confidentiality provision of the New York Rules (i.e., Rule 1.6), or by the confidentiality provision of some other jurisdiction -- e.g., those of the state in which your office is physically located or the rules, if any, adopted by the military commissions before which you practice. Unless the confidentiality provision of the New York Rules applies to your work, this committee lacks jurisdiction to provide you an answer.

They lack "jurisdiction"? They have no jurisdiction. Over anyone. Anywhere. Ever. This is an NGO, a voluntary association where a bunch of guys who raise their hand when somebody asks, "anybody want to be on the ethics committee?"

The informal response, "not a formal opinion," was signed by Roy Simon, Hofstra Law School's Howard Lichtenstein Distinguished Professor of Legal Ethic and chair of the committee. He went emeritus in September 2011. According to his CV:

Member (1995-present) and Immediate Past Chair (2008-2011) of the New York State Bar Association Committee on Professional Responsibility. This Committee responds to ethics inquiries from attorneys regarding the New York Rules of Professional Conduct, and the Committee comments on proposals affecting regulation of lawyers.

Or fails to respond to ethics inquiries when they're too busy cowering in the corner. Maybe he forget that part.

The unanswered question is whether between the time of the draft opinion and the ultimate display of worthlessness embodied by the "informal response," someone, oh say from the DoD or some other jumble of initials using government computers, "reached" the committee to convince them to keep their nose out of government business?

Or whether the committee, perhaps its chair, decided that it wasn't good for them to become embroiled in the thorny question of how a New York lawyer should ethically address a government demand for wholesale access to his client's confidences. After all, it's one thing for the lawyers whose butts are on the line in the defense of enemy combatants to bear the risk of ethics, but why would anyone who joined a bar association committee in New York want to take a risk pissing off the government?

Despite the manifest failure of the NYSBA ethics committee to show the slightest interest in ethics or fortitude, defense lawyers have persisted in their refusal to consent to the government's monitoring of their work, and the Chief Defense Counsel concluded that the DoD demands violated fundamental ethical proscriptions and directed all defense lawyers to refuse.

While the lawyers in the service of the military have demonstrated the guts to stand firm on their ethical responsibilities to their clients, the contrast between their position and the utter failure of the NYSBA ethics committee couldn't be more clear, and more of a disgrace. How nice that a bunch of self-important bar association guys get to pad their resumes with their committee assignments, while punting at the first sight of risk.

The NYSBA's "informal opinion" on ethics is to run away from their responsibility if there is any chance it might be controversial. Not the underlying ethical issue, about which there was nothing controversial at all, and it was about as clear and easy as any ethical question could be. Rather, upsetting the powerful government is a risk that bar association players aren't willing to take. Sorry, Gitmo defense lawyers, but your ethics just aren't worth the risk.

The Liars' Economy

2012-01-29T10:36:00Z

When a person follows me on twitter, I get an email informing me because twitter believes it's important that I know. Rather than insult twitter, I recently decided to open the email and look at their bio. More than half of the time, it informs me that the person is either an "expert" or a "consultant" who is "passionate" about whatever makes them money. I have no clue who the person is, but they want to let others know they're special.

We used to call this sort of conduct "shameless."

A legal marketer whose name eludes me recently wrote that we have a duty to be shameless; "if you don't tell them, how will they know?" Another marketer posted what appears to be a missive under the title, "my meeting with the secretary of state." After some routine puffery, it turns out that the "headline" was a lie, that he tried to meet the secretary of state, but was turned away. His point was about boldness. He shows "chutzpah."

The New York Times ran a story about retailers paying kickbacks to consumers if they wrote positive reviews of their wares.

Some exalt themselves by anonymously posting their own laudatory reviews. Now there is an even simpler approach: offering a refund to customers in exchange for a write-up.

By the time VIP Deals ended its rebate on Amazon.com late last month, its leather case for the Kindle Fire was receiving the sort of acclaim once reserved for the likes of Kim Jong-il. Hundreds of reviewers proclaimed the case a marvel, a delight, exactly what they needed to achieve bliss. And definitely worth five stars.

In Ottawa, Rogers Communications seeks to strike a law, requiring companies to perform "adequate and proper" tests in advance of advertising claims about the performance of a product, as a violation of free expression. It argues that the marketing claims may be absolutely true, but the requirement that they be tested in advance so that they are proven accurate before being disseminated, rather than tested only after being challenged, inhibits freedom.

Walter Olson at Cato writes about New York City Mayor Michael Bloomberg's war against the things he believes to be unhealthy.

But as the New York Times reports, city officials “did not let on that the man shown — whose photo came from a company that supplies stock images to advertising firms and others — was not an amputee and may not have had diabetes.” Instead, they just Photoshopped his leg off, which certainly got the effect they were looking for, albeit at the cost of photographic reality. At an agency developing an ad campaign for a private company, someone might have advised adding a little fine print taking note that the picture was of a model and had been altered, lest the manipulation turn into the story itself, or even attract the interest of federal truth-in-advertising regulators. But the Bloomberg crew probably isn’t worried about the latter, given that their constant stream of hectic propaganda is fueled by generous grants from the federal government itself. Such grants also helped enable a contemplated booze crackdown exposed by the New York Post this month—quickly backed off from after a public outcry—that would have sought to reduce the number of establishments selling alcohol in New York City.

People seem to believe the advertisements without much thought, assuming that the correlation/causation problem must be proven somewhere or they wouldn't say it.

Inexplicably, people still believe that if it's in writing, if it's put out publicly, it must be true. Surely, if it was false, there is some back office somewhere filled with busy elves who would squash it immediately. People aren't allowed to lie, right? It would be scandalous if anyone could say anything to deceive others without recourse.

But there is no back office somewhere filled with busy elves overseeing the accuracy of claims. The mechanism that prevented an economy built on rampant falsehoods and puffery was the fear of being outed as a shameless liar. The mechanism existed within us, as the chance of anyone else calling us out was slim, and only the slightest possibility of being held up for ridicule as a liar was more than sufficient to push the reluctant liar over the edge of truthfulness.

No longer. Shameless is the new Bold. Freed of the constraints of honesty, we rationalize our conduct to justify doing anything it takes to achieve our goals.

One of the premier justifications for the ubiquitous consumer reviews on the internet, whether of lawyers on Avvo or a tchotchke on Amazon, is that it enlightens others. This is only true if they are accurate and honest, but this naive claim was swiftly undermined by those who game the system. We are simultaneously gullible in believing that the information we receive about others is at least reasonably accurate, while pumping out as much puffery as possible about ourselves. All without the slightest bit of shame.

We buy from the best liar, whether it's a gadget case, a refrigerator or a lawyer. It's not really that hard to distinguish the self-aggrandizing liar, yet we can't seem to help ourselves from being attracted to shiny objects and important people.

As despicable as it may be to learn that we've been lied to after buying as thing based on sham reviews, that this same shamelessness has permeated the legal profession is different. Integrity is all we've got, the only justification for our monopoly on the trust given us by clients.

But, you say, everyone else is puffing, lying, scheming and scamming, while you sit there waiting for the phone to ring, with bills to pay and hungry children at home. You say that it takes too long to establish a reputation as a skilled and respected advocate, so you have to create it yourself. You say that creating a few "facts" and omitting a few others can turn you into a rock star. You say the other lawyers are liars, so why should you suffer.

Everyone is a liar today. That's the nature of our economy. That's the nature of our profession.

Not everyone. Granted, it seems that way. Granted, it seems as if the liars are winning the battle, and leaving the honest in the dust. It seems as if no one is terribly bothered by an economy built on lying to each other, as long as we get a piece of the pie for ourselves. There are some of us who won't play this game, and you quietly watch as others studiously ignore us, circumvent us, lies about us and put on their play as if we didn't exist.

But we see you. We see what you are saying and doing. We see that you proclaim yourself an "expert" when you're not. We see that you puff your greatness and have your cousin write a false review to bolster your lie. So what if everyone else is lying through their teeth to make a buck? We're lawyers, and our duty is different than the purveyor of shiny toys or government intent on death to sugary drinks and second hand smoke. What you are selling is your integrity, and you are selling it cheap.

Have you no shame?

Book Review: The Odd Clauses

2012-01-28T11:56:00Z

Jay Wexler is a very funny guy. Always was, which is particularly surprising given his tenure at the Department of Justice, Office of Legal Counsel, before going rogue and joining the faculty at Boston University School of Law. Even when he blogged at PrawfsBlawg, he was funny. I bet Dan Markel will never let that happen again.

Aside: I once had a day dream of the Bush Administration's request for an opinion on the legality of torture landing on Jay's desk instead of John Yoo's, and the years since being made safer by a drunken Bacchanalia with marines and Al Qaeda, ultimately ending with an agreement that both prefer blond virgins to underpants bombs.

Rejecting the path of least resistance, Jay's written The Odd Clauses, Understanding the Constitution Through Ten of Its Most Curious Provisions, published by Beacon Press. He describes them as the "shrews, wombats and bat-eared foxes" of the Constitution, or the "yeti crab or platypus," all to show his facility with unloved creatures. It's unclear whether this is due to a personal sympathy with lesser known animals or his willingness to put anything in his mouth, but the image is clear. This book is about the weird stuff.

And yet The Odd Clauses is anything but weird. Chapter 3 is about a clause that no self-respecting lawprof would ever mention in Con Law, the recess appointments clause. Come on, seriously? It's not as if President Obama would try to use a recess appointment to sneak Richard Cordray in as head of the Consumer Protection Finance Bureau, making this the hottest constitutional topic of the season.

Or maybe Chapter 5 about the Natural-Born Citizen clause, best read munching on pineapple. Jay's discussions, ranging from the history behind the clauses to their potential application now and in the future is pure Wexler. While the big clauses are the subject of never-ending scrutiny and discussion, Jay doesn't let us forget that even the ugly, ignored clauses are in there, and come into play when least expected. We all scramble to figure out what they heck they say and mean when we're sandbagged with the Title of Nobility Clauses, but Jay is way ahead of us.

Given our lawyerly love of both the Constitution and oddities, The Odd Clauses is just an enormously fun read and, in the process, exceptionally informative. The problem is that you're having such a good time reading Jay's twisted humor that you don't realize you're learning. Damn that Wexler!

If there is anything to criticize about it, it's that he stops at ten clauses. It might have been better had he gone to 15 and made the chapters a bit shorter, perhaps by leaving out the cold-blooded segments of the menagerie. It's really quite amazing to realize how much of our Constitution, a document we perceive as studied to death, goes unnoticed until some shrew hits the fan.

When my free review copy arrived, I happened to take a gander at the blank page up front, and found an inscription from Jay.

Dear Scott,

I think you will soon agree that this is the best book ever published. Congratulations on getting to read it!

[Completely unreadable scrawled signature that appears to be "jarmulkar"]

If you can handle your Constitution with a sense of humor, you will love this book and curse Wexler for his obvious failure to finish the job he started. Of course, there is always The Odd Clauses 2, The Reptilians. A great book that isn't merely a fun read, but one that has proven by recent events to be hardly about the yeti crab as much as a bear in hibernation. The Odd Clauses may not be the subject of our daily debates, but when the next oddity in American politics occurs, you'll be way ahead of the crowd.

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Making the Internet Better, One Law at a Time

2012-01-28T11:01:00Z

Naturally, the day after my post about removing an old post so that a person isn't forever tainted by his worst experience, Walter Olson twits about the European Commission being set to adopt "formal rules" to create a "right to be forgotten" on the internet.

From Adam Thierer at the Technology Liberation Front:

According to the BBC, the European Commission is apparently set to adopt formal rules guaranteeing a so-called “right to be forgotten” online. As part of the Commission’s overhaul of the 1995 Data Protection Directive, this new regulation will mandate that, “people will be able to ask for data about them to be deleted and firms will have to comply unless there are ‘legitimate’ grounds to retain it,” the BBC reports.

While the concern underlying this initiative may be real, and indeed, may well be something to which any reasonable person is sympathetic, formalizing it into a Rule, creating a procedure which, by definition, must bear a consequence if it isn't to be ignored, and putting the judgment into the hands of some well-meaning bureaucrat with a checklist in a basement office, will not improve the internet.

Censorship, even when well intended, is censorship. Theirer points out what is well-known to anyone paying reasonably close attention to the internet, that efforts to cleanse it of information don't tend to work well.

Thus, for a “right to be forgotten” to work, a more formal and robust information control regime will need to be devised to censor the Net and make it “forget”about the digital footprints we left online. Will the DMCA’s “notice and takedown” model be applied? Beyond the chilling effect associated with dragnet takedowns of online information, it’s unlikely that approach will really work. Keep in mind, this isn’t as simple as just telling large social media operators to delete information on demand. The reality is, as computer scientist Ben Adida notes in his essay “(Your) Information Wants to be Free,” the same forces and factors that complicate other forms of information control, such a copyright and speech restrictions, also complicate the protection of facts about you. “[I]nformation replication doesn’t discriminate: your personal data, credit cards and medical problems alike, also want to be free. Keeping it secret is really, really hard,” Adida correctly notes.

What is not clear is whether Thierer appreciates the struggle this will cause over how "robust" the control regime should be. When asking nicely doesn't work, the next cries will be for monetary sanctions. When they don't work, whether because the information replicates faster than echecks can be sent, incarceration will be required. And so on. When the European Commission can't clean up the outlier colonies like the United States and the island of criminals, a Super Internet Police Force will be required to roam the planet in search of ~~Somalian~~ internet Pirates.

Of course, the offshore pirates will be a step ahead of any official effort to shut them up (or cost them money), while ordinary folks with a computer and a home address are easy game for regulators. Once legislators in Kentucky realize there is airtime to be had by promoting the new, popular censorship, complete with a cool biblical quote like "turn the other cheek," a wave of "right to be forgotten" laws will sweep fly-over land and crash against both coasts, east and left.

Perhaps our beloved and admired legal scholars will jump into the fray to lead the challenge against censorship? Not likely, given that under the leadership of Danielle Citron, they've already staked their claim at the head of the censorship line, demanding the death of mean speech online under the guise of Cyber Civil Rights. They adore free speech, as long as they can shut down anyone who says something they don't like.

But, you ask with squinted eye, are you not an overbearing advocate of censorship yourself, arguing that the internet is not a truth-free zone? Ah, no. Just as I've advocated for the exercise of restraint on our own part when it comes to perpetuating negative posting after the harm outweighs the need, I advocate that lawyers adhere to our own ethical constraints of honesty and integrity.

The rule isn't an internet rule, though the battles are now being fought on the web because that's where the bad stuff is happening, but a rule for lawyers. And I don't advocate for the imposition of fines and imprisonment, or even disbarment, as employing speech to counter speech. Bad actors are shamed in the same manner as the wrong they commit.

And what of Twitter, having just announced its intention to censor twits in countries where the contents are illegal?

The effort underscores thorny issues for Internet companies as their websites become more global and interconnected among different countries, and as they must cooperate with diverse views on Internet content control. For websites like Twitter as well as social-networking site Facebook, this has meant being blocked in countries like China where controls are more aggressive.

While we may think of Twitter as merely a medium for our communications, it's still a business enterprise concerned with survival and profit. It's easy to forget that it's not our toy, but someone else's enterprise. We just supply the grist that keeps it running. While using Twitter is our choice, censoring it is twitter's, just as deleting comments here is mine rather than the commenter's.

It's not internet censorship, but self-censorship, and the misguided sense of universal ownership interest in the medium distracts us from the reality that Twitter needs to do what Twitter needs to do. We may not like it at all, and we have the absolute right not to ever twit again in protest to Twitter's decision, but it remains Twitter's decision.

In the early days of the internet, there was a fierce pride in keeping grocery clerk's hands off. There was no tolerance for outside regulation, and the denizens of the virtual world policed themselves, often with harsh attacks on those who failed to adhere to the etiquette or norms of the web. Dishonesty was dealt with harshly. Idiocy was immediately called out. It was the wild west, but there was no shortage of sheriffs to keep things in line.

Of course, those Halcyon Days are over. As n00bs came online, they didn't understand the norms and felt entitled to recreate the etiquette to suit their sensibilities. Every day, thousands of new people hook their computer up, and immediately decide things need to change. And they have and continue to change, but not sufficiently to meet the needs of the lowest common denominator. That's why the clamoring for rules began, and why the grocery clerks demand the void be filled.

Soon, there will be a "right to be forgotten," except by the government. Then there will be a right to not have one's feelings hurt. Shortly thereafter, the rule will prohibit words of greater than three syllables, or posts that require thought. And this will "fix" the internet, and the internet will be all better.

Mourning the Passing of Geeklawyer

2012-01-27T13:05:00Z

He was outrageous. He was as offensive as anyone on the internet. He was geeklawyer, a pseudonymous British barrister whose vulgar satirical view of the world reflected the incorrigible days of the blawgosphere, and later twitter.

Via my dear pal CharonQC comes the sad news of Geeklawyer's passing. No, he didn't die. You see, he wasn't real. Geeklawyer was a fun persona that existed only to screw around with the prisses in the profession and online, the ones who would "harrumph" and "tsk" at the "undignified" behavior of the internet barbarians. No one was more barbaric than GL, and no one enjoyed it more.

And now, the Grand Poobah of the British High Court of Royal Dignity has imposed the death penalty.

Court News reports: “A barrister who called opposing lawyers ‘slimebags’ in a series of insulting tweets from court was today (Thurs) thrown out of the profession. David Harris was wrongly acting for an internet piracy company he owned.

He bragged that ‘whoring and drinking’ would begin after he finished the trial and described an opposing lawyer as a ‘p***k.’….”

While someone may have outed him, and his real name is now readily available, I prefer to remain with Geeklawyer, the name by which I've known him for years, and the name that reflects the days before the blawgosphere was brought under control of the grocery clerks, who couldn't bear the thought of people being outrageous and dismissing their laundry list of rules.

Charon's post amply covers the stupidity of this, as does GL's explanation of why the collateral issue of the internet "piracy" claim is nonsense. Please read them.

As for me, I mourn the internet that Geeklawyer represents, one where a lawyer could have some fun, write outrageous truths and lampoon the foibles of a profession, and not have to fear the prigs' attack.

We're now deluged by the flawgers, the prissy, the insipid blowing kisses at one another in the hope that some crumb will fall on their plate, making lawyers appear as puny and pathetic as people believe them to be. But there was a time when the internet, the blawgosphere, twitter, was bold enough to have someone like Geeklawyer ripping the balls off sacred cows at every chance.

Now they've killed him because they couldn't bear the thought that he was right.

The man behind Geeklawyer is very much alive, though very much disbarred. My guess is that David Harris will find a way to make them regret this travesty, as he's never lacked for guts or spirit. At the same time, the vitality of the blawgosphere will never be the same.

So go out there today and write a post about how you're a really special lawyer and clients should retain you right away. There's no Geeklawyer to scream that your baby is ugly. Happy now?

Reason Number 3 To Go To Cocktail Parties

2012-01-27T12:20:00Z

Lee Pacchia of Bloomberg Law interviews New York Times reporter David Segal, the guy whose feature articles caused more lawprofs to put fingers to keyboard than any other, not to mention spittle to screen.

There are things he says (and he's written) that strike me as accurate, and things that strike me as just plain wrong, as interpreted from the outside without much of a grasp of the inner workings.

One argument Segal makes, where he applies basic economics of supply and demand to the availability of reasonably priced legal services, seems particularly misguided, ignoring the costs (whether too high or not), both out of pocket as well as opportunity, that somehow have to be repaid. As much as lawyers might want to put their services to use for the poor and downtrodden, they still have mouths to feed and debts to pay.

On the other hand, his point about "gold-standard" legal services being unnecessary for some of the services lawyers now provide is similar to the arguments I've made here.

The aspect of Segal's argument that seems most significant is that the ABA, responsible for accrediting law schools, accepts no responsibility for any of this. And, since Segal apparently doesn't realize this, the ABA doesn't speak for all lawyers. Just saying.

Interesting stuff.

H/T Volokh Conspiracy

A Man Walks Into A Bank

2012-01-27T11:26:00Z

The crime charged is bank robbery, not ordinarily considered an impulse crime of the sort that can be easily understood as an aberrational act resulting from either momentary psycho-emotional overload or an altered state of reality. People plan bank robberies. After thinking, they execute the plan. It's a very thoughtful crime.

After Feliz Vega, Jr., was arrested for bank robbery in Georgia, however, his lawyer announced a curious defense. Vega was taking Paxil, and it was the drug that prevented Vega from distinguishing right from wrong. Paxil, an SSRI antidepressant, is a very strong drug with a very long list of significant side effects, but it's been prescribed since 1993 to millions of people, without any suggestion that it's caused a rash of bank robberies.

Naturally, the defense was immediately ridiculed for laying blame on Paxil.

But Assistant District Attorney Hank Syms waved away any claims of “involuntary intoxication,” telling Superior Court Sheryl Jolly he would object to any witness testimony that did not directly reflect on Vega’s state of mind when he entered the Bank of America at 1740 Gordon Highway on July 30, 2010.

Syms said that about a third of clients that make guilty pleas in court say they are on some form of medication. But Syms said this is the first time he’s heard this medication defense because most attorneys know better than to try it.

“What we have with this charade about ‘Paxil made him do it’ is the opposite of taking responsibility,” Syms said.

The defense plans to call an expert at trial to show that the defendant lacked the capacity to form criminal intent. Obviously, ADA Hank Syms thinks defense counsel Peter Johnson is a damn fool.

Without regard to the merit of the defense's position that Paxil, a mind-altering drug, altered the defendant's mind, or the legal significance of his taking Paxil (presumably with a prescription) on his mens rea, what's striking about the prosecution's reaction, not to mention the reaction of commenters to the story, is that this defense is just, well, stupid.

The defense's theory is immediately reminiscent of the dreaded "twinkie defense," offered on behalf of Dan White in the killing of San Francisco city supervisor Harvey Milk. While it's been largely misunderstood, as the defense was not that twinkies caused White to commit the crime, but rather was evidence of his changed behavior reflecting his depression, it's managed to sour, in public perception, the idea that a person's mental state can be altered by an external cause to impair the ability to distinguish right and wrong. Syms' characterization reflects how most people think.

The problem is that the knee-jerk dismissal of the defense is based on some ignorant "common sense" notion, which Syms is playing to the hilt. To the extent we seek only those individuals who possess the mental state needed for guilt to be convicted, playing to ignorance undermines the validity of the system. It does, however, help to get a conviction.

Maybe the Paxil defense is total nonsense, a facile attempt at excusing a deliberate act for which the defendant should be properly convicted. Maybe Paxil altered the defendant's state of consciousness such that he was disinhibited, incapable of the thought processes that would lead a person to recognize the wrongfulness of robbing a bank. Not being anywhere near competent to draw a conclusion, I wouldn't venture a guess. But I similarly wouldn't dismiss it out of hand.

The problem is that this isn't the sort of thing that a group of nice folks, sitting in a bar, around a coffee table, or in a jury room, can figure out on their own. They aren't near competent to assess the impact of Paxil on this defendant either. Yet that's the basis of the prosecution's dismissal of the defense, as well as the general attitude of those commenting on the story.

For example:

Since first approved in 1993, over 70 million prescriptions for Paxil have been filled.
Do we now need to worry that all 70 million users will drink booze, attempt to rob banks, elude police officers and crash into neighborhood fences? Kinda grasping at straws, aren't you Peter Johnson??

And:

To paraphrase Geraldine..."The devil made him do it."
And if you know who Geraldine is, you're showing your age

Or:

Using that lame defense will probably get Mr. Johnson's client the max based on his wasting the Judge's time.

And of course:

And let the new excuses begin for committing crimes. Even three sheets in the wind, an honest person doesn't commit armed robbery or any other crime while intoxicated with some exceptions made for dui's/conduct issues. I certainly hope this man is convicted of his crime. Poor, poor, Paxil victims.

On the flip side, some commenters noted that there have been numerous cases in which drugs taken by the defendant was successful in showing diminished capacity, including the cases of Christopher DeAngelo and former all-star pitcher Jeff Reardon.

It's not an easy defense to prove, or an easy defense for a jury to accept. There is a strong tendency to reject that which doesn't fall within the common sphere of experience, much like the refusal of jurors to accept the notion that anyone would falsely confess. But this isn't about common experience, and the limits of a juror's don't define the parameters of other people's lives.

This is particularly true when the issue revolves around something like a serious drug such as Paxil, where those of lacking in the expertise necessary to appreciate what it can do to a person's mental state have no business making off-the-cuff, simplistic assessments.

More importantly, the prosecution's effort to feed into this ignorance, to use prejudice under the guise of some "common sense" type argument to ridicule a defense that could very well be true, is outrageous. Not that Hank Syms suggests he's got the competence to assess the medical validity of the defense, but that in his ignorance, he's amply qualified to encourage others to be as ignorant as him. Fostering prejudice and ignorance may help to win convictions, but doesn't do much to foster confidence in the legal system.

The defendant has a right to present a defense. Hopefully the judge will be sufficiently enlightened, or at least immune from falling into the hole of ignorance that Syms is busy digging, and allow him to do so. Even if it flies in the face of ol' Hank's ridicule.

Debt Paid

2012-01-26T12:02:00Z

When a defendant completes his sentence, he's said to have paid his debt to society. Well, that was what we used to say, anyway, before the days of registries and the perpetual underclass we've created to make sure that no one who has ever done anything wrong will get a chance. For the children, you understand.

In the blawgosphere, however, criminal defense lawyers are occasionally given the opportunity to put their principles to the test. Society at large may be unforgiving, but we argue otherwise. And we have an opportunity to put our beliefs to the test.

An email came in the other day requesting that I remove an old post about a case that named names. It wasn't a demand. There was no claim of inaccuracy. It was a simple request, couched in terms seeking understanding. You see, the case against the person named in the post has long since been completed, and he's moved on with his life. Yet, his name on the interwebz brought up this unpleasant episode. He wanted to put it behind him, to not spend eternity perpetually haunted by it.

This was hardly the first time somebody wanted me to take down a post. I've gotten many demands, often couched in threatening terms, by people claiming that what appeared here did terrible things to their reputation. The most well-known of these is Rakofsky v. Internet. A more playful demand came from faux internet cop, Jim Donahue, who was subsequently pinched for playing a cop in Broward County. And then there was Mimi Coffey's "do it for my children" demand. My response to all was "bite me." I don't take kindly to threats.

The purpose of writing, aside from my internal interests, is to be informative while making a point. There comes a time, however, when my point (not to mention my internal interests) are less important than the damage of being forever associated with the worst experience of one's life on the internet. The internet is forever, unless some intervening force makes it go away. While a judge may impose a sentence of years, after which a defendant can emerge from the darkness of prison and breath free air, the internet never forgets.

It took me mere seconds after reading the email to make a decision. My post about the fellow was a good one, accurate and pointed. It was extremely relevant to what we do, discussing the risks we take in the zealous performance of our duty, and the inherent conflicts between our role as attorney and the limits of the law on how far we could go in the protection of our clients. It was a good post.

It was also a post that would certainly hurt the person named by reminding everyone who read it what had happened, and impair his ability to move forward in his life. Who was I to sentence this person to perpetual infamy on the internet? Who was I to deny him the ability to move on after he paid his dues?

The post was immediately removed.

While I had no hesitation in doing something that I believed was right, there is a nagging aspect to removing a post, that I am engaged in revisionist history. What happened, happened. What was there one day was disappeared with the press of a button, and no one who would come to see it will ever find it again. If someone read it and, for whatever reason, wanted to read it again, there will be no explanation for why it no longer exists.

Journalists don't take down their articles after a sufficient length of time elapses, so that the people named can go back to their lives without the story hanging over their heads. We can go into archives from a century ago and still read about what some guy long dead did to some other guy similarly long dead. While it's hard to harm a dead person, what of their legacy? Is it limited to the bad thing they did that got their name into the newspaper? There likely won't be much written about how they were nice to dogs and children.

Before the internet, one had to do some serious legwork to find old stories about people. Memories fade and yesterday's news was replaced by today's. With search engines, everything is today's news for most of us, lacking sufficient prominence to be replaced by media fascination with our every movement and utterance. We tend to be characterized by our worst moment rather than our best, or even our most mundane. It's the unusual that gets reported, and the unusual that will live on Google in infamy.

Having written a great many posts, over a lengthy period of time, this issue has come to the forefront, testing my resolve that people who have paid their dues to society deserve to put their worst moments behind them and move forward. Maybe I'm wrong to make posts that I once thought worthy of writing disappear because of this belief, but I made a decision and pressed the button.

As the blawgosphere, and the internet, matures, new questions arise about how we should handle the impact of what we do on others. I've made my choice, at least this time.

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