The Left of Privacy

When news broke of the Ashley Madison hack, I ignored it. The name sounded like a women’s clothing line made for those cheap mall stores catering to the under-21 crowd, and worn by the over-40 crowd who refuses to accept their fate. I was deeply disinterested.

Of course, I was totally wrong. That I was unaware that it was a site for married people cheating on their spouses was embarrassing. I like to think I have my finger on the pulse of the ugly underbelly of the internet, and this only proved that there is much about which I know nothing.

But then, there are a few things with which I have some familiarity, and the backlash to the disclosure of emails of cheating scum (yes, I am not fond or forgiving of people who cheat on their spouse) served as a platform to raise a hoary lie:  Don’t cheaters have a right to privacy too? Continue reading

Dumb and Dumber: Revenge of the Legal Academy

A law school graduate walked into a bar, looking terribly depressed.

“What’s the matte?,” asked the bartender.

“I just found out I failed the bar exam,” the grad said.

“Aw, don’t give up,” the bartender responded. “Study hard and I’m sure you will pass next time.”

“What? No free drink?,” the grad replied.

The argument that the bar exam fails to serve as an adequate test of competence to practice law has been around a long time, and for a variety of reasons, has some merit.  It’s been extended in the past few years to why a bar exam is justified for each state, preventing lawyers from moving their practice to new places without being required to re-take the exam. This has been exacerbated by the internet, where a lawyer could theoretically represent people anywhere, as long as they have a computer. And who doesn’t?

While the bar exam may be a mediocre barrier to entry, the absence of a bar exam is an invitation to disaster. It may not test much, but it tests basic knowledge and reasoning necessary to call oneself a lawyer. And as long as states get to enact their own, sometimes peculiar, laws, the justification for their ascertaining whether a person should be entitled to assume responsibility for other people’s lives and fortunes remains intact. Continue reading

The Clown In Every Unhappy Lawyer

Feeding into the fear and loathing of the unduly emotional with repeated viewings of Stuart Smalley and the tummy rubs of the lean-in group, chanting in unison that it’s not your fault you screwed up, it could happen to anybody who didn’t bother to work hard because there were more fun things to do than prepare, know your law, give a damn about your client, is one answer.  It’s a bad answer. A disgraceful answer, no matter how many teary-eyed whiny voices disagree.

Lawyers are supposed to be peeerrrfeeect. It’s tooo haaarrrrrddd. It makes me unhappy.  Because it’s all about the lawyer being happy, not that poor schmuck who thought you would put his interests first because you were, you know, a lawyer.

The number of new lawyers feeling this fear and loathing has skyrocketed lately, likely due to too many seats in too many law schools being filled by too many asses who have no business there, as well as a shift in culture toward the overwhelming importance of the feelz, so much so that it doesn’t dawn on these anxious lawyers that their unhappiness is nothing compared to the misery their clients endure.

But the phenomenon isn’t new. There have always been lawyers, even good lawyers, who came to the realization that being a lawyer wasn’t for them. Robert Markewitz is one.

I was the envy of my 30-something friends in Palo Alto, Calif. I had my own law office right on California Avenue. People charged with crimes handed me cash, in advance, over a big oak desk. Occasionally, I’d make a couple of grand in an afternoon.

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Only The First Two Bullets Are Free

Maryland State’s Attorney Marylin Mosby is showing some real moxie in her willingness to hold cops accountable. Certainly, the swift decision to prosecute Baltimore police officers for the death of Freddie Grey was huge, and now it’s followed up by her announcement of the prosecution of Officer Wesley Cagle.

The officer, 13-year veteran Wesley Cagle, is accused of shooting Michael Johansen, 46, in the 3000 block of E. Monument St. after he had been shot by two other officers. Cagle was charged with attempted first-degree murder, attempted second-degree murder, first-degree assault and second-degree assault.

Mosby said the first two officers were justified in shooting Johansen because he refused to heed commands and made a move toward his waistband.

But Cagle “on his own initiative” came out of an alley, Mosby said, stood over Johansen, called him a “piece of [expletive]” and shot him in the groin.

The expletive would be “shit,” and the bullet would be .40 caliber, for those who keep track of such things. Continue reading

Always Call 911 Immediately

Colleges have their policies as to what is permitted on their campus and what is not. Aside from the problems caused by ambiguous and ill-defined policies, the use of words that lack meaning or have peculiar definitions on campus that fail to align with their meanings in the real world, college students are just as entitled to the protection of police as anyone else.  Of course, that protection hasn’t always proven to be as comforting as young people expect.

At Santa Clara University, students are instructed by the college website that they should “always call 911 immediately.”  No, not because they’re being robbed, raped or beaten.  This command is to enforce a policy that the school deems of sufficient importance that people with guns are needed.

“If the bias incident is in progress or just occurred: ALWAYS CALL 911 IMMEDIATELY,” the university website states. Continue reading

The War of Words Over [Those People]

Full disclosure: My ancestor, Adolph Greenfield (Adolph was still a hip name back then) arrived on the shores of the United States in the 1850s, and thereupon set in motion such a poor series of choices that, 165 years later, his descendants still had to work for a living.

But he was welcome to push a cart on the lower east side of Manhattan until his grandchild moved to the suburbs, bucolic Newark, New Jersey, to live the dream. Yes, America’s been very, very good to me. Who am I to deny such opportunity to anyone else?

The latest salvo in the war on swarthy-skinned Spanish-speaking people comes from their inability to check into a suite at Trump Tower.  And let’s be frank, no one is complaining about illegal immigrants from Sweden.  While some say we must build a wall to keep them out, others say that’s not important. What is important is what we call them.

Advocates for immigrant rights see the relationship between how people talk and how the government acts and have proposed replacing ‘‘illegal immigrants’’ with ‘‘undocumented workers’’ or ‘‘undocumented immigrants.’’ ‘‘In an increasingly diverse society in which undocumented immigrants are integrated in all walks of life, language belongs to the people whose stories are being told,’’ Jose Antonio Vargas, a journalist and activist who revealed his own undocumented status in The New York Times Magazine in 2011, wrote in Time.

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The Judge Did The Honorable Thing

How do these small Texas towns with no tax base, no big businesses, no apparent means of supporting their local government employees, manage to do it?  They’re in the ticket business.

First, it was the “Dirty Thirty,” a line of four towns along a 30-mile stretch of Interstate 45 south of Dallas that issue a high volume of traffic tickets.

Now, welcome to the “Texas Triangle” – a group of small towns in Falls and Robertson counties southeast of Waco that are also in the ticket game, according to a longtime municipal court judge who said he quit over what he described as a ticketing quota system.

It’s no small thing to be a local judge.  People call you judge, and they bow and scrape a bit when you walk into the diner for a morning cup of coffee. They’re polite and laugh at your lame jokes because they may need you to look fondly upon them some day.  No, being judge beats the hell out of being village idiot. Continue reading

The Tyranny of Experience

Whenever the word “experience” is mentioned, a backlash ensues.  Lest you get the impression that it’s unappreciated, the same obvious arguments are just as fascinating the thousandth time as they were the first.  But given that people who argue that “experience” is just a ploy for the ancient to subjugate the young, let’s begin with the zen-like wisdom found on a fortune cookie:

The only thing worse than a young fool is an old fool.

Why? Experience.  The young have a built-in excuse for their screw-ups. They lack experience. Old guys have no such excuse.  Consider this a tummy rub. Now for the bad news.

I received an email from a very astute lawyer, Peter Orlowicz, rather than a comment because it was off topic, that posed a question in a very thoughtful manner: Continue reading

Too Much Justice

Think back to 2012, the last presidential election, with incumbent Barack Obama against challenger Mitt Romney. Think of the simplistic division between Democrat, who stands for concern for the constitutional rights of the accused, and the Republican, who stands for tough on crime.  Think hard.

What a total load of crap.

LAST month, President Obama used his clemency power to reduce the sentences of 46 federal prisoners locked up on drug-related charges. But for the last six years, his administration has worked repeatedly behind the scenes to ensure that tens of thousands of poor people — disproportionately minorities — languish in federal prison on sentences declared by the courts, and even the president himself, to be illegal and unjustifiable.

Would Romney have been worse when it comes to criminal justice issues? Perhaps, but so what? Continue reading

What College Kids Care About: Election Edition

At the New York Times Room for Debate, the question posed was what college students care about in deciding who to vote for in the 2016 presidential elections.  Note that beer, sex and getting other college kids expelled were not on the list.

While it’s unclear, and unlikely, that the seven students answering are representative of anyone or anything, they do offer some illuminating insights.

For example, Ashton Pittman, a junior at the University of Southern Mississippi, was quite emphatic that the most important issue for him was the next Supreme Court justice.

As a Southerner whose region’s history is rife with tales of discrimination, I know that there is no more important issue for 2016 presidential candidates than the question of who they will nominate to sit on the United States Supreme Court. Continue reading

Jury Voodoo and Racial Politics

When Linda Greenhouse proposed that we rid jury selection of peremptory challenges to eliminate the insidious effects of racial discrimination, my response was that they’ll have to pry peremptories out of my cold, dead fingers.  Adam Liptak has picked up on the issue, and offers a conflicted vision.

Jeff Adachi, San Francisco’s elected public defender, said peremptory challenges promote fairness.

“You’re going to remove people who are biased against your client,” he said, “and the district attorney is going to remove jurors who are biased against police officers or the government.”

But then:

Abbe Smith, a law professor at Georgetown, would go further.

“Simply put,” she wrote last year in The Georgetown Journal of Legal Ethics, “prosecutors have abused the privilege of exercising peremptory challenges and should lose it.”

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Tonight, How Science Turned Out To Be 95% Wrong

This story is one that would have generated an argument so boring and tedious that no one would be able to stand following it through from beginning to end.  At the beginning, there was science.  Maybe not science to real, honest-to-god type scientists, who would use charts and graphs, statistics, maybe even a Venn diagram for the hard-o-thinking, to make their point.

This was not science, but we, lawyers, and the lawyers who quit to become judges, aren’t scientists either.  So when some guy from the FBI Lab, which everybody knows is the best there is because everybody keeps saying it’s the best there is, says this is scientifically valid, who are we to question it?

Gamso lays it out.

They call themselves criminalists or forensic scientists or something with a fancy name. They come into court explaining that they’ve done these tests hundreds of times.  There are, they say, a whole bunch of points of comparison.  And when they find a match, they can point to those points. Continue reading