Category Archives: Uncategorized

Nipped In The Bud

Future crime?  Been there. Done that.  The adoration of empiricism has not only led to its uses in ways that inform us that “common sense” is nothing more than our own inexplicable prejudices packaged in an easy-to-use container, but its false gods as well.  No matter how long people have held dear to their assumptions, that doesn’t make them true.

But combine the good parts of empiricism with our belief that life can be reduced to binary bits and you end up with such ill-conceived notions as the Sentence-O-Matic 1000, reforms to hold people in custody longer because they’re empirically more likely to be recidivists, and the concept destroyed by Philip Dick’s 1956 sci-fi story,  Minority Report.

Of course, it’s already been done, so we’re told.

 Richard Berk, a professor of criminology and statistics at the University of Pennsylvania has developed software to predict which defendants on probation are most likely to commit murder or be murdered. Continue reading

The Dangerous Criminal Lie

New York’s chief judges like to leave their mark on the system before they leave the job. Sol Wachtler’s mark was to distinguish New York’s greater respect for constitutional rights despite the Supreme Court’s watering down of federal constitutional rights. Judy Kaye was all about making jurors feel more comfortable about the burden, including eliminating exceptions for all the people who would love to be on a jury, but rarely get picked.

Jonathan Lippman ages out in December, and has chosen his cause: to end the bail disaster that leaves the poor in jail for lack of a thousand dollars, particularly when there is no good reason to hold them in the first place.  It’s a worthy cause, even if it could have been accomplished swiftly under New York’s existing law. Doesn’t anybody actually read the law anymore? Anybody?

As his term in office nears its end, Chief Judge Lippman has laid out his plan.  It’s a four-part plan:

First, he will appoint a senior judge in each New York City borough to review every misdemeanor case in which a defendant fails to pay bail. The review would take place within 10 days of arraignment to determine if bail should be reduced.

Continue reading

Training, Chicago Style

Whenever something goes awry in how the police deal with a controversial situation, especially if its captured on video so it’s not readily deniable, the first line of defense is to claim that it can be fixed by training.  Training is another one of those magic words that make people think that the entire cop culture pivots on a few lectures. Yup, that’ll fix it.

And of the many police departments whose reputation for violence, deceit and impropriety have hit the news with unfortunate regularity, Chicago’s is right up there with the best of them. And it’s not just the failing of their beat cops, but those who are charged with investigating the beat cops.

So, dammit, Chicago plans to do something about it!

The agency that investigates Chicago police shootings is beginning a week of training led by a controversial psychologist who often testifies in support of officers who have shot civilians, WBEZ has learned.

Continue reading

At The @ATLBlog Academy For Private Practice #APP

As Above the Law searches for new revenue streams, they will be throwing the Academy for Private Practice this coming weekend.  Yes, it seems kinda nuts in a batshit crazy sort of way, given the lack of speakers who have either created or maintained a successful private law practice.  But only an unpleasant person would get hung up on such details. Don’t be that guy.

In anticipation, Elie Mystal sent me a somewhat defensive email, asking if I would be canon fodder on his podcast with Joe Patrice, ironically called “Thinking Like A Lawyer.” That was awfully darned thoughtful of Elie, who I hasten to add is both a smart and very funny guy, though he anticipated that I wouldn’t be particularly interested in participating.  I’m really not a big fan of podcasts, considering that I find listening to them only slightly less pleasant than root canal.

But for my bud, Elie, how could I say no? I just had one tiny condition, that he write me a post. He hasn’t spoken to me since.  Nonetheless, that’s not going to stop me from helping out my pals at Above the Law, because that’s the kind of swell guy I am.  So, had I happened to wander into one of their APP presentations, and had somebody yelled out, “yo, Greenfield, go up there and say something,” this is what I would have said:

How many of you have ever tried a case to verdict before a jury?

[One hand, everyone else in the room staring at their crotches with deep fascination.]

A criminal case? A felony case?

[One guy and two gals try to quietly slip out of their seats; sounds of feet shuffling.]

It’s stressful, right? It’s hard, and it eats you up as you think, and think, knowing that when you rise and speak, a roomful of people are staring at you, expecting you to say something, anything, that matters. After all, you hold another person’s life in your hands, and it doesn’t get more stressful than that.

[Heads start to nod in unison, eyes now looking up, but avoiding eye contact.]

And you’re lawyers, and every expects you to be [use weird mocking voice] perfect, right? Always perfect, as if you’re not human, as if you can’t make a mistake.

[Heads start to nod with greater vigor. Woman who left room returns to her seat.]

Maybe something, meditation perhaps, can relieve you of this stress, help you focus better, take away the fear and loathing of that perpetual sense that you blew it when the judge asked you why he shouldn’t allow a line of questioning, and you had nothing. It destroyed your client.

[Heads are now bobbling about with recognition; oh, yes, been there, been there.]

The stress can be overwhelming sometimes, and that’s what made you feel the need to eat that quart of ice cream the night before trial, watching Real Housewives of New Jersey in the hope of picking up some trick you could use at trial. Sure, you could have been reviewing Jencks Act materials, or grand jury testimony, or the caselaw that would have answered the judges questions, but you couldn’t. You just couldn’t, as the stress was killing you!

[Some clapping, one woman with a tear rolling down her cheek, mouthing, “yes, oh yes.]

Now let’s do an exercise. I want you to close your eyes and clear all thoughts from your head.

[Eyes close immediately, while some assume a posture somewhat reminiscent of the lotus position if one’s flexibility was traded for spanx.]

Picture your client being led away by the court officers after the one word verdict, the cuffs being snapped tightly against his wrists. See his wife and three children in the gallery, silently weeping at the loss of their loved one, their breadwinner, the spouse knowing that she will soon be homeless, unable to feed her babies.  He looks quickly at her with pleading eyes, but she can do nothing.

[Silence. Then a sound, reminiscent of flatulence.]

He’s pushed and pulled in a waiting van, chained to others.  He’s taken to place that stinks of ammonia, corrections officers laughing as he’s forced to spread his cheeks while a guard toys with his club.  Then he’s taken to a cell, where he meets his bunkmate, a white supremacist with “death” tattooed on his forehead.

[A few heads shaking side to side, one guy clutching the working buttons of the suit jacket his mother bought him.]

In the shower, his bunkmate and three similarly shaven men throw him against the wall, nearly cracking his skull open as they anally rape him.  The guards watch with delight, as the four take turns teaching him who runs the block.  He looks longingly at the guards to help him, to stop the flow of blood and feces, and they turn away as if nothing was happening.

[A whimper, followed by the nervous rustling of feet and that sound reminiscent of flatulence again.]

And picture that night, the night before trial, when you were eating ice cream, watching TV, rather than preparing. You, the one person in the world he relied on to save him from conviction, from the cell, the white supremacists, the guards, the blood. You, who told him with the utmost sincerity how much you cared about him, who took his money, who promised his wife, his children, that you would do everything in your power to win his case. They trusted you.

[Heads again shake side to side. The fat kid up front moving his finger toward his nose, but then thinks better of it.]

And you’re here today, seeking peace and absolution from that terrible stress of knowing that you failed him. How hard it is to be you.  How miserable it feels for you. You sit here in this conference, in this room, while he sits in his prison cell wondering if they will beat him or rape him or both, and it’s killing you.

[A yawn, followed by a few more.]

Now keep your eyes closed, and wipe the image of that client out of your head. Instead, think of butterflies, beautiful butterflies, perched atop a used but well-kept Mercedes E-Class, and you hold the key in your hand.

Aren’t you entitled to be happy?  Aren’t you entitled to make a mistake, to not feel the dread of trying to be perfect.?

You’re just a lawyer. You can’t be perfect. There’s no shame in worrying more about yourself than about him.  After all, you can’t be the best, the happiest, the most peaceful you if you spend all your time worrying about your client being raped in prison. Don’t you deserve to find peace and happiness too?

[Walk off stage rapidly before they open their eyes, past a young woman sneaking a peek at her iPhone. Don’t look back.]


The most important thing one must be mindful of when starting a private practice is that it’s about the client, not the lawyer. No matter how stressful the lawyer feels, the client will suffer more.

This may be a bit bleak and unhappy for an “academy” designed to make attendees feel validated and motivated, particularly given the very sensitive nature of ATL readers.  But then, private practice isn’t all about being happy, even if that’s what sucks in attendees and persuades them to part with the few bucks left after paying this month’s student loan debt. Then again, only curmudgeons worry about such things as clients, while others focus instead on revenue streams for internet websites.

Maybe next year, Elie will invite me to go to the Academy for Private Practice. Maybe.

Winning or Appearing To Win The “War On Police”?

The other day, the Beast of Brooklyn, Ken Womble, argued that the tide is turning, that while there may be a long war ahead of us, we’re winning the war on police, or at least not losing as badly as we have been up to now.

Prosecutors, judges and politicians turn a blind eye to reality when it comes to police.  Prosecutors would rather let an innocent person rot in jail than stand up to the police.  Many judges still think that questioning the word of a police officer is tantamount to blasphemy.  Politicians cower before the political power of the police department, continuing to give cops everything they ask for despite decades of falling crime rates.

So, without accountability, how are we making progress?  Through information.  Five years ago, whenever the discussion turned to police misconduct or corruption, the inevitable government response was that we were dealing with just a few bad apples. That tended to shut down the conversation. Today, it holds no water.  It has been swept away by a sea of Eric Garners and Tamir Rices.

Having been fighting this battle for a while, actually more than 30 years, it’s true that huge strides in accountability have been made in the past few years, largely as a result in the pervasiveness of video. It’s not that the same problems of police behavior, force and violence haven’t been happening forever, but that they were dismissed until video made that difficult. Continue reading

For $230 Million, You Get Cameras

It’s not as if there was a problem on Staten Island that demanded a fix. Richmond County is the home of police officers, former police officers, their relatives and their next door neighbors, all living atop a garbage dump. Hey, this is America and that’s their choice. They’re allowed.

But when someone decided that Staten Island needed a new courthouse, and that $230 million was a worthy investment because it’s not like roads and bridges needed funding for repairs, it was well worth it to make sure they covered every base possible.  And indeed, they did.

Say you’re one of the 1.2 million New Yorkers with an open warrant for public urination, stoop drinking, or a missed court date of some other kind, and you have the misfortune of being arrested on Staten Island. You spend the night trying to sleep on a filthy cement floor at Central Booking surrounded by strangers and hope you don’t have to make use of the communal toilet with no seat. At some point, a guard calls your name. It’s your turn to meet with your court-appointed lawyer, or, if you’re connected, a private attorney you called.

Oops. I forgot to mention “connected” people on Staten Island. They live there too, although they rarely get pinched for public urination, and never get prosecuted by the Richmond County District Attorney. The SDNY and EDNY have dibs on “connected” people. But I digress. Continue reading

Criminal Justice Reform, Good And Hard

News broke yesterday, via Ari Melber at MSNBC. Reform is here. Bipartisan reform. But the most important bit of news to foreshadow the details that are to be revealed, perhaps today, is that they have the support of Chuck Grassley (R-Iowa), chair of the Senate Judiciary Committee.

Without his support, change is nearly impossible, as no law can get out of committee unless Grassley gives it a kiss. That’s how governance works in America. And, Melber says, Chuck Grassley has given this reform his blessing.

Top Senate Republicans and Democrats have reached a bipartisan deal on criminal justice reform, a breakthrough that has been years in the making.  The proposal, which may be announced as soon as Thursday, has the crucial backing of Sen. Chuck Grassley, the conservative chair of the Judiciary Committee.

Grassley, you see, believes that criminals in prison are criminals who can’t commit crimes, so the drop in crime experienced in America is due to our laws putting far more people in prison for far longer lengths of time, together with the penumbras of coerced cooperation and the rush to plead guilty.  All good for Grassley. Continue reading

The Silence of the Lambs

One of the Ivy League schools that participated in the American Association of Universities’ study on campus rape and sexual assault, the University of Pennsylvania, picked up on the discrepancy that advocates of the outcome ignored.

About a third of Penn female undergraduates say they’ve been sexually assaulted, according to the results of the American Association of Universities’ Campus Climate survey, whose results were released on Sept. 21. Specifically, 27 percent of female undergraduates have experienced “nonconsensual penetration or sexual touching involving physical force or incapacitation” since entering college.

But there’s an interesting discrepancy when the statistics are examined more closely: Only 30.7 percent of women who said they were sexually assaulted while at Penn actually reported it by senior year — a small fraction of the total number of women.

At the same time, 58.1 percent of students overall believe that a report will be taken seriously by the administration, raising the question of why Penn students don’t speak up.

Continue reading

Arthur Chu’s Top Three Reasons To Eliminate Section 230

He may be no Ken Jennings, but then, being a Jeopardy! champion eleven times is nothing to sneeze at.  So when Arthur Chu took to writing for TechCrunch after learning that there was no more savory way to monetize his moment of fame, it was worthwhile checking out what a mind filled with trivia had to say.  And Chu did not squander the opportunity.

After launching into a shallow homage to anti-Gamergaters, “[p]erennial troll targets Anita Sarkeesian and Zoe Quinn,” Chu eventually got to the point of his cry for attention: End the safe harbor of Section 230 of the Communications Decency Act.  This “loophole,” Chu posits, is how mean people on the internet have been allowed to so deeply hurt the feelings of Sarkeesian and Quinn.  It must die.

Right now you can’t sue digital platforms for enabling harassment on their services, even if they enable harassment through flagrant, willful neglect. If your harasser is able to take fairly basic steps to keep himself anonymous — and if the platform he chooses enables and enforces that anonymity — then there is literally nothing you or the government can do, even if his actions rise to the level of major crimes like attempted murder.

Well, maybe not “attempted murder,” which actually involves the use of a telephone, rather than the internet, and isn’t exactly attempted murder, though SWATTING is a awful thing.  But Chu is on a roll, even if he refuses to put it in the form of a question. Continue reading

Readers Mailbag, Volume 272

It’s been quite a while since I’ve done a readers mailbag here, mostly because there isn’t much to say about the ten millionth email offering ten free “leads” if only I attend a conference by the city bar where a couple of biglaw washouts will teach me how to become famous on twitter for two ethics credits.

Unless, of course, you think that would be something worthwhile to read about, but I digress. Incoming was this email:

Dear Simple Justice:

I’m a small-firm lawyer with a modest practice in the midwest. Most of my clientele come from referrals, but I do have a modest online presence. Part of this online presence was “claiming” my profile on Avvo. I suppose I did this for fear that someone else might claim it instead, which was the dumbest assumption I’ve ever made as a lawyer.

Five years passed, and the only thing that happened for me at Avvo were modest increases in my score (based on longevity, I presume) and monthly cold calls from individuals suffering from borderline personality disorder. It never put a single additional penny in my pocket. If anything, it robbed me of time I could’ve otherwise spent with my paying clients. Continue reading

The Supreme Slackers

The new term of the Supreme Court begins next Monday, and as usually happens, lawyers and academics will gaze and gush over their pontifications, because it is the Supreme Court, a branch of government unto itself and, if not infallible, definitely final.

But there isn’t much discussion, amidst the gushing and fawning, of the fact that the Supreme Court is doing one exceptionally poor job of things.  As Jeff Gamso graphically shows, they’ve grown lazy.

Now some numbers.

  • 142
  • 143
  • 159
  • 143
  • 91
  • 79
  • 85
  • 77
  • 68

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Not Even Motherhood Evokes Empathy

Contrary to popular belief, the idea that compassion and empathy are missing from police training is hardly a new idea. And, ironically, much of the concern isn’t about police empathy toward others, but the lack of compassion and empathy shown police.  For those inclined toward emotional solutions, the idea that things will get better if we all share a big group hug seems sound.

And yet, what situation could be more universal, more susceptible to compassion and empathy, than a woman being rushed to the hospital to give birth?

The cops who stopped the car, guns drawn, ready to kill, fell a bit short on the empathy meter. Continue reading