The Mentee Shortage

People ask me for advice. A lot. Sometimes, it’s new lawyers seeking career advice. Other times, it’s lawyers looking for some advice on how to handle a case or a client.  Still other times, it’s someone asking about advice on writing.  But they reach out to me, and I try to help.  It’s not that I’m just a swell guy; almost all lawyers I know are willing, if not happy, to help others.

But it’s not the same as it used to be.  Nobody wants to be told that the reason they’re having a problem is that they suck at whatever it is they’re doing, and should give serious thought to applying for an assistant manager’s job at Dairy Queen.  Even though that thought has passed through my mind more than once. Still, I try to be constructive under the assumption they’re not going to quit the law, so it would be best to help them not to be totally ruinous to other people’s lives.

Back then, advice such as work harder, stop trying to find a short cut, think harder, and suck it up was taken with equanimity, if not appreciation.  You see, mentoring sometimes means that you’re told “no, you’re not doing a good job. You need to do better.”

No more. It’s not just that mentees want to argue the point. They always did that, at least to some extent.  It’s that they now make it clear that they want an answer, even when the answer is that there is no answer, and they want an answer that doesn’t involve them breaking a sweat. Continue reading

The “Staggering Numbers” and Anecdotes

In an op-ed in the Washington Post, Michigan lawprof Samuel Gross writes about the “staggering number of wrongful convictions,”* an ironic title given that the one thing the op-ed can’t, and doesn’t, do is tell the reader what that “staggering number” might be. But Gross opens his op-ed with an anecdote, this one about the wrongful conviction of Rafael Suarez.

It’s a bad story, and the consequences were devastating to Suarez, but this is one guy. Why structure an argument about the “staggering number of wrongful convictions” around one guy?  The requisite anecdote has become the staple of argumentation, a facile appeal to emotion, to empathy.

Its purpose is to grab us by the throat and challenge us to not care about the nightmare imposed on this poor, undeserving person by whatever evil it is under discussion.  It’s the tyranny of the anecdote.  How can you not care? How can you not see the wrong and want to right it? How can you not want to help?

What has happened to us that we are so child-like in our understanding of right and wrong that this has become the method of choice in persuasion?  Gross, at the end of his op-ed, makes a persuasive case for the systemic mechanism in misdemeanor prosecutions. Nothing new or particularly revealing, but a solid argument: Continue reading

Two Courtrooms At Once

At Fault Lines, Cristian Farias makes a persuasive case for Attorney General Loretta Lynch’s jumping on the prosecution of Dylann Roof for the slaughter at the Emanuel A.M.E. Church in Charleston.  The distinguishing feature is that the feds, usually waiting in the wings for the outcome of state prosecution, were in from the start.

What’s striking about DOJ’s involvement this time is its seeming impatience. If in the Martin and Brown cases federal prosecutors worked quietly and did not interfere with the state cases as they ran their course, here they came out with guns blazing. And reasonably, one could say that Lynch’s move to impanel a grand jury and seek charges a mere two weeks after South Carolina did the same is an affront to a state’s prerogative to seek justice in its own terms. Federalism run amok.

And indeed, Jonathan Blanks at Cato made that exact point:

The Department of Justice should be more judicious with its funds and resources. The opportunity costs of a duplicative prosecution takes resources away from crimes that fall more appropriately in the federal purview, such as interstate criminal enterprises and government corruption. Today’s indictment is federal meddling in a case the state already has under control.

Continue reading

Mythbusters of the Federal Persuasion (Update)

Via Doug Berman at Sentencing Law and Policy, the National Association of Assistant US Attorneys (NAAUSA) has issued a “white paper” to bust the “most dangerous myths” of sentencing reform.

Myth One: Our prison population is exploding because of the incarceration of
recreational drug users or low-level drug offenders.
Fact: Our federal prison population is not exploding, and those who are serving prison sentences for drug crimes are incarcerated because of drug trafficking crimes, not recreational drug use.

Myth Two: The federal prison population is a product of mandatory minimum
sentences for drug traffickers.
Fact: The majority of drug traffickers sentenced in federal court are not being
sentenced pursuant to mandatory minimum sentences. Continue reading

No Butts For Sandra Bland

Despite my extreme reluctance to delve into what I consider a sideshow to a very serious case, too much effort has been put into parsing it in extreme detail for me to ignore it.  The question of real importance is how and why Sandra Bland was found dead in a Waller County jail three days after a crap traffic stop, and instead, all eyes are focused on the stop instead of the death, which has been essentially forgotten.

Was it the cigarette?

From the transcript of the video of the stop, this is what happened:

Encinia: You mind putting out your cigarette, please? If you don’t mind?
Bland: I’m in my car, why do I have to put out my cigarette?
Encinia: Well you can step on out now.
Bland: I don’t have to step out of my car.
Encinia: Step out of the car.
Bland: Why am I …
Encinia: Step out of the car!

Continue reading

Just Say No, Forensics Edition

Jeffrey Gamso, in his inimitable way of tying loose ends together, went from 9th Circuit Judge Alex Kozinksi to F.W. Murnau’s missing head to the decision in People v. Collins.  And if that doesn’t give you whiplash, reading Brooklyn Supreme Court Justice Mark Dwyer’s opinion will make your head spin.

Justice Dwyer begins with something that ought to be obvious to all, but few judges would openly admit:

This court recognizes that judges are, far and away, not the people best qualified to explain science. That observation is doubly applicable when novel scientific techniques are at issue—and that of course is precisely what Frye analysis involves. But courts are bound to do their best.

Continue reading

Skin In The Game

David Graham noted in the Atlantic that there are almost no black district attorneys.  Aside from what that may say about black lawyers, it’s got systemic problems as well:

According to a new survey, an overwhelming portion of the elected officials ultimately responsible for charging criminals, deciding what sentences to seek, and determining whether to allow them to strike plea bargains are white men.

There’s also little question that the U.S. justice system as it exists perpetuates and encourages huge racial gaps, leading to much higher incarceration rates for black men and serious social disparities in housing, education, employment, and beyond.

The inability of prosecutors to appreciate the world and life of black defendants has been a perpetual problem; they just can’t seem to grasp why poor black guys don’t see the world through Yale-colored glasses. This is not only a real problem, but really a problem. As smart as some of these prosecutors may be, they’re so lacking in life experience that they do not appreciate that everyone didn’t summer in Nantucket. I kid you not. Continue reading

Fear, Loathing, Isolation And Debt

On the twitters, I asked whether young lawyers were “paralyzed with fear and anxiety.”  The response was overwhelmingly clear: they are scared shitless about the ability to survive under the debt they carry, plus feed a family, buy shoes and all the other good stuff that they expected from joining a learned profession.

Aside from that, they’re pretty happy doing the hard work of lawyering.

Yet, I keep hearing about lawyers and depression, misery and unhappiness. I keep hearing that new lawyers are wrought with emotions they cannot control, like a teenager discovering hormones, crying, pulling out hair in clumps, balled up in corners with snot running down their nose.

I suspect that the sort of lawyers who are paralyzed with fear aren’t the same lawyers who would tolerate following someone like me on the twitters. I’m not inclined toward rubbing their tummies and telling them it’s okay that they failed their clients, as long as they’re happy.  My question, thus, was put to a different universe of lawyers, those whose professional lives aren’t wrapped up in their own misery and unhappiness. Those who ought to be lawyers. Continue reading

381 Facebook Warrants, No Waiting

From a distance, the food may look delicious. It’s only when you taste it that you realize it’s bitter.  The Appellate Division, First Department, decided the long-awaited challenge to a mass search warrant for everything ever from Facebook for 381 people.  One might wonder what the structure of the warrant was, or whether it was well-founded, but that question can’t quite be answered because no one outside of Facebook, the New York County District Attorney’s office and the court knows.

No defendant, no target, no one else has ever seen it. No one.*

Of the 381 named targets in the warrants, 62 were indicted.  The other 319 have no idea that the entire contents of their Facebook pages are in the hands of the DA. And they never will.

Of the 62 who have been indicted, it’s unclear whether any of them are awaiting trial. Most of the defendants in the case have either pleaded guilty or had their cases dismissed. Notably, the court only mentioned that 62 were indicted. There was no mention of how many of the 62 who were indicted have since had their cases dismissed. Continue reading

Sandra Bland: The Suicide That Can’t Be

At Fault Lines, Murray Newman explains how the death looks through the prosecutor’s eyes, and offers an optimistic expectation that this won’t disappear down the rabbit hole of excuses:

The law enforcement officials involved in the Waller County investigation, however, seem to be taking appropriate steps to address the death of Sandra Bland. As noted in  USA Today, the Texas Department of Public Safety has already conceded the trooper who arrested Bland “violated the department’s procedures regarding traffic stops and the department’s courtesy policy.” That statement is a strong rebuke considering it comes so early in the investigative process.

Additionally, the Waller County District Attorney, Elton Mathis acknowledged that there was nothing evident as to why Bland would have committed suicide:

I will admit it is strange someone who had everything going for her would have taken her own life. That’s why it’s very important a thorough investigation is done and that we get a good picture of what Ms. Bland was going through the last four or five days of her life.

Continue reading

The Unnavigable Ship of Rhetoric

Democratic candidates for president, Senator Bernie Sanders and Governor Martin O’Malley stood on the ship, docked at the progressive port of Netroots Nation, and thought they had found shelter from the storm.  They were wrong.

Democratic presidential candidate Martin O’Malley was midsentence when the chanting began. “What side are you on black people, what side are you on!” rang the chorus of around four dozen mostly black protesters streaming into a convention hall in Phoenix, Arizona, on Saturday.

The two presidential candidates found themselves at the center of the chaos, both caught off guard and unable to answer the protestors.

“Black lives matter. White lives matter. All lives matter,” O’Malley said to boos and jeers.

O’Malley had his Donald Trump moment, for which he promptly apologized for his insensitivity and whitewashing of racism by his use of the white response phrase to the Black Lives Matter movement.  Deciphering the winds is critical when trying to guide the ship through rocky shoals, and O’Malley got smacked in the face with an unexpected gale. Continue reading

Changes: The Nuts and Bolts of Prisoner Re-Entry

Imagine what it must be like to be Rip Van Winkle, waking up after a 20 year snooze to find a different world than the one you knew when you closed your eyes. That’s what someone coming out of prison after serving a lengthy sentence finds, as ably shown in the New York Times Magazine story about Carlos Cervantes and Roby So.

Carlos and Roby are two ex-cons whose job it is to pick up prisoners on their way out.  Even so, they haven’t quite left prison behind.

He was hungry. He wanted biscuits and gravy and was still laughing about how, earlier, he caught himself telling Carlos that, unfortunately, he’d have to wait until tomorrow for biscuits and gravy, because today was Monday, and Monday was pancakes day. Part of his brain still tracked his old prison breakfast menu. ‘‘Why do I still know these things, man?’’ Roby said. ‘‘It’s been four years. I was supposed to. … ’’ His voice trailed off, so Carlos finished his sentence: ‘‘Delete.’’

The story tracks Carlos and Roby picking up newly released 65-year-old Dale Hammock’s first few hours of freedom, who just awoke from a 21 year nap. Continue reading