Simple Justice

When Splinters Hurt

SHG — 2012-05-18T10:39:00Z

In a post that will surprise many, Kevin O'Keefe rips legal marketing for its disgraceful lack of dignity. This follows an "incident" yesterday where an interview conduct by his son, Colin, of someone from ConsultWeb at Avvocating 2012 was spammed across twitter. Kevin was pissed, so he let loose in a colorful post:

Lately I think of Kodachrome most “When I think back on all the crap lawyers learn from legal marketers, it’s a wonder lawyers can think at all.”

Some legal marketers don’t know how lawyers grow their practices. Some legal marketers intentionally keep lawyers in the dark.

Either way it’s a shame. A shame that marketers act with no dignity in serving a profession that deserves, or at least should demand, dignity. A shame that otherwise intelligent people believe the crap taught to them.

While there are quibbles to be had over claims that the internet offers any meaningful opportunity to get filthy rich and famous, Kevin is still one of the good guys in that his thrust has always been to develop first as a competent lawyer and then spread one's earned reputation around. Whether it works that way isn't the point of this post. Kevin has always put competence and client service first, even if what follows is subject to debate.

But in the process of flying too close to the sun, Kevin, and his baby, the Lexblog Network, got burned. Colin, who happens to do a terrific interview, "covered" a marketing conference. At the time, Kevin saw the attendees as his peeps, worthy of a listen and even an interview. And then, these very people, the ones to whom he showered his love and good words, burned him. They took his well-intended promotional video and spammed it across the internet, pulling on their pink hotpants and black patent leather hip-boots, and strutting their stuff down the boulevard. And Kevin's stuff too.

Kevin now sees what happened in painful living color. He was used. ConsultWeb took his interview and turned it into cheap and tawdry marketing. Instead of developing relationships, the thrust of Kevin's message, they put bright red lipstick on it and pushed it in everyone's face. It made Kevin the pimp, having created the streetwalker, and Kevin was outraged at being put in that position. I can't blame him.

But it can't surprise him. Kevin O'Keefe may have given his talk about accelerating relationships a thousand times, but it's still part of the marketing scheme the drowning lawyers grasp before they go under. It's may be more dignified than others, but it's still marketing.

I twitted back at Kevin, during his fit of pique, bemoaning the death of dignity.

You can't force dignity. Once you slide down the marketing slope, it's baby steps to hot pants and the boulevard.

While my message was aimed directly at the spamming, it was meant for Kevin as well. Once you hoist yourself up on the fence between "dignified" marketing and the sleazy stuff, there is no way to avoid getting splinters. Big, nasty splinters in your butt.

People don't go to these marketing conferences because they want to learn how to be dignified. They go because they want to get clients, and they want to get clients because they want money. And if they want clients and money enough to go to conferences, they want it pretty badly. And they will do whatever they have to do to get it. When the sweet rhetoric of dignity doesn't make them rich, they push a little farther, until one day they find themselves walking the boulevard in hot pants.

Kevin later twitted:

Why do lawyers have such a shitty reputation? Because of advertising like this.

The irony of the bus rolling down the boulevard shouldn't be lost.

There are many lawyers, and former lawyers, who believe that marketing serves sufficiently valid purposes, leveling the playing field between solos and firms, or letting the public know that a lawyer with a particular speciality exists and sits next to the phone awaiting their call. They have only the best of intentions in promoting the better aspects of marketing. And they similarly decry the awful, deceitful, undignified crap that demeans the profession.

The belief that lawyers can somehow control their worst impulses, engage in marketing yet conduct themselves with dignity, is a fantasy. There is no conceptual ledge that stops lawyers from sliding down the slippery slope into the gutter at the bottom. If one lawyer puts up a "dignified" ad, the lawyer next door will find a way to undercut him. And so the downward spiral goes, as they race to the bottom.

No one has the ability to draw a line in the sand to explicitly define where the dignified marketing ends and the sleaze begins. No one has the ability to enforce it in this vast wasteland called the internet. And those who try to sit atop the fence are going to end up with big, nasty splinters in their butt.

The rest of us may not feel the pain, but we will suffer for it as well, as the uniform of our profession changes from blue pinstriped suits to pink hotpants.

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A Weed Grows in Brooklyn

SHG — 2012-05-18T09:49:00Z

Every once in a while, a person has a chance to make a difference in the larger world. Sometimes, the chance comes at personal expense, but the person's will to make a difference transcends self-interest. Most people choose to cover themselves rather than risk it. Only the truly brave take the chance.

Brooklyn Supreme Court Justice Gustin Reichbach is a very brave man.

In a New York Times op-ed, Gus Reichbach has done what few would even consider. He not only told the truth, but told the truth that exposed him to a huge potential problem. You see, Gus Reichbach sits as a criminal term judge. And Gus Reichbach smokes dope.

He doesn't toke for fun or relaxation, but for relief from the pain and nausea from pancreatic cancer.

THREE and a half years ago, on my 62nd birthday, doctors discovered a mass on my pancreas. It turned out to be Stage 3 pancreatic cancer. I was told I would be dead in four to six months. Today I am in that rare coterie of people who have survived this long with the disease. But I did not foresee that after having dedicated myself for 40 years to a life of the law, including more than two decades as a New York State judge, my quest for ameliorative and palliative care would lead me to marijuana.

While the federal government persist in midnight showings of Reefer Madness and keeping marijuana on schedule I, for drugs with no use that isn't evil, Justice Reichbach can't afford to indulge in the fantasy of the drug war. Cancer is real, as is the suffering that goes with it. No kind words from Gil Kerlikowske will stop the pain. Indeed, they would be more likely to induce nausea than ameliorate it.

When used for medicinal purposes, there is no rational reason why marijuana is any different than any other drug. Throw your back out and you're in agony. The doc writes a script and you feel better. Until the feds put an end to that as well. Can it be abused? Of course, like anything else, including power. Does that mean it's ineffective for those who need it. Clearly no. The toss-up is whether it's better to make cancer patients endure the suffering or offer the only medicine that provides palliative care.

In the heat of war, there are always victims. In the War on Drugs, cancer sufferers like Justice Reichbach is called collateral damage.

So rather than suffer for the cause of politics, Gus Reichbach has chosen to address his pain and nausea. It is unlawful in New York to possess marijuana, regardless of how worthy and justifiable the reason. For a man who sits on a bench in a robe and metes out punishment, doing something unlawful isn't generally considered a good thing.

This must have weighed heavily on a judge, as well it should have. While there are excellent arguments for the legalization of medical marijuana, many a criminal defendant can offer a sympathetic rationale for breaking the law. Yet they are prosecuted, convicted and sentenced, because they have broken the law. Nobody is individually entitled to chose to ignore the law because they have what they feel to be a reason.

And that "nobody" includes a sitting Supreme Court Justice.

Gus Reichbach knows this.

Given my position as a sitting judge still hearing cases, well-meaning friends question the wisdom of my coming out on this issue. But I recognize that fellow cancer sufferers may be unable, for a host of reasons, to give voice to our plight. It is another heartbreaking aporia in the world of cancer that the one drug that gives relief without deleterious side effects remains classified as a narcotic with no medicinal value.

Because criminalizing an effective medical technique affects the fair administration of justice, I feel obliged to speak out as both a judge and a cancer patient suffering with a fatal disease. I implore the governor and the Legislature of New York, always considered a leader among states, to join the forward and humane thinking of 16 other states and pass the medical marijuana bill this year. Medical science has not yet found a cure, but it is barbaric to deny us access to one substance that has proved to ameliorate our suffering.

You will note that he doesn't speak to the inherent conflict of being a law-breaker and judge, which is the message he's sending to Albany. Meet your criminal, Governor Cuomo.

How many legislators, governors, presidents, didn't smoke dope? Every one is as much a criminal as the kid snatched off the street during a sweep of an uptown block. They just didn't get caught because cops didn't roust kids at Harvard or Yale, which somehow makes them different.

Gus Reichbach offers his reason for breaking the law, and it's a damn fine one. But he is still breaking the law, because the law accepts no reason. The former (or current) pot-smokers in Albany perpetuate a law that they themselves violated, because they got away with it and can't be touched.

No doubt Justice Reichbach is facing his own mortality, and doesn't want to leave this earth with work undone. He has chosen to sacrifice himself on the alter of integrity to make a point that could change the course of suffering for such a ubiquitous disease and such pervasive suffering.

It should come as no surprise that Justice Reichbach has long been one of the best and boldest judges on the bench, That is the sort of person who would take a risk like this, to sacrifice himself for the welfare of others. Let any politician in Albany, Washington or any other place where self-important people meet under marble domes say they're a better person than Gus Reichbach.

Punditry Gone Awry

SHG — 2012-05-17T11:24:00Z

On the day SDNY Judge Shira Sheindlin certified a class action on behalf of the hundreds of thousand of people, mostly black and Hispanic, who were stopped and frisked because a cop felt like it, Fishtown's Leo Mulvihill pointed me toward an NPR radio broadcast of Richard Cohen on the subject.

The NPR Talk of the Nation broadcast followed upon Cohen's Washington Post column on the same subject.

New York Mayor Michael Bloomberg has a new kind of crime statistic. It is not the astoundingly low number of murders committed in his fair city — 471 in 2009 vs. about 2,000 per year in the 1980s — but murders not committed in the last decade: 5,600. Those people are alive today by the grace of God and the policing policies of the Bloomberg administration, particularly what is known as stop-and-frisk. New York City is heaven on earth possibly because it is a certain kind of hell for young black and Hispanic men.

I didn't think I would ever do this, but here I am: There should be a law against this. The law should prohibit anyone from espousing something in public to large audiences that makes them inherently stupider. The law should prohibit people from offering an opinion on a subject about which they are clueless. The law should punish the murder of brain cells.

Richard Cohen, j'accuse.

Compared to the relatively benign column, the NPR broadcast made my eyes well up with tears, my ears ring and my fingers twitch. After the typical humblebrag beginnings of "I don't know nothin' about birthin' no babies," Cohen goes on the get most of the facts wrong and yet elevate ignorance to new heights. His opinion, baseless as he falsely admitted, was nonetheless worthy of assertion under the last refuge of the ignorant, common sense.

It's a trade-off, Cohen informs, between all the people who aren't dead today because of the stop and frisk policy, and all the people who suffered the stop and frisk. Cohen readily concedes that he's not likely to be subject to it, and wouldn't like it much if he was, but since it saved lives, proven by the absence of dead bodies littering the streets of Manhattan, it's something we can't dismiss.

Maybe Cohen was sick that day in third grade when the teacher, Mrs. Crabtree, mentioned it. That happens, but it's a good reason not to write about it. The "it" is the Constitution. The "it" is the foundation of our government. The "it" is not subject to individual approval or "common sense" revisionism. In other words, columnists for the Washington Post who go on radio to talk about crap they know nothing about do not get to opine that the application of the Constitution to the government is subject to either their approval or their imaginings of common sense.

Of course order and security would be enhanced if the people had no rights and the government was all powerful. This isn't exactly higher order thinking. But Cohen, when that bunch of dry good merchants decided to form a better union, they made some choices to guide how that government would function going forward. No one told you? Sorry, but it's all over the internet.

The United States Constitution, Fourth Amendment, establishes a value judgment upon which this nation was formed. It provides that police cannot stop and frisk people at will. Done deal. This is not subject to either popular approval or your severely limited grasp and equivocation.

Yes, the stop and frisk program is more effective than adherence to the Constitution at preventing crime. So too would be anal cavity searches at will. Summary executions would also work pretty darned well. There is a laundry list of things the police could do that would have an impact, to at least some degree, on crime.

And yet the Constitution says they can't.

It sucks? It's not your cup of tea, Cohen? There's always Singapore. I hear it's lovely this time of year. They have no Fourth Amendment prohibiting the government from flexing its muscles at will to prevent the potential of crime by allowing people to be free from baseless searches. Sure, apartments are hard to find, but isn't it worth it to feel safe?

What strikes me as incredible is that the newspaper that broke Watergate would give space to a column that makes people stupider. And if that's not bad enough, the NPR puts Richard Cohen on air in the apparent hope that its funding won't be cut.

Prefer safety over rights all you want, and point out the 5600 people alive today but for the flagrant violation of civil rights. There are many people who agree, despite the fact that it's based on an imaginary argument. But to suggest that this is an open question, a toss-up for fans of security to decide, rather than a facial violation of our Constitution is just fundamentally ignorant. If you want to be a pundit, you don't get to be ignorant, and you don't get to make other people ignorant.

I would proclaim you guilty of my imaginary law, but then, in America, you have a right to trial. Unlike you, I didn't miss the day in third grade when Mrs. Crabtree mentioned the Constitution.

Judge Katherine Forrest Enjoins Indefinite Detention

SHG — 2012-05-17T10:19:00Z

Today is Judge Katherine Bolan Forrest's seven month anniversary on the bench of the Southern District of New York, having been appointed by President Obama to fill Jed Rakoff's seat, and it's an anniversary worth celebrating. Not because seven months is such a big deal, but because her decision in Hedges v. Obama shows that the President did at least one thing right when he appointed her to the court.

The indefinite detention provision buried within the 2012 National Defense Authorization Act, which Obama signed with a lame excuse after flipping from his prior position, The President explained in his signing statement:

Section 1021 affirms the executive branch’s authority to detain persons covered by the [AUMF]. This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then . . . . Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens . . . . My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the law.

And if you say it's unnecessary and will never be used, that makes it a good law? No matter. The President signed it, and law it became. Four plaintiffs with curious backgrounds brought suit in SDNY to hold it facially unconstitutional. Granting a preliminary injunction Judge Forest found they have a substantial likelihood of prevailing. It may seem both obvious and proper to many, but it's a monumentally bold move for a new judge in a highly controversial, politically charged and legally problematic case. Yet, she did it.

The action itself isn't without some curious problems, initially stemming from the fact that suit was brought in advance of someone being actually indefinitely detained. Of course, if the case wasn't ripe until someone was, in fact, indefinitely detained, it would present a host of problems, even if we didn't take the word "indefinitely" literally. Rather, an American seized off the streets of Des Moines and held incommunicado, with neither charges nor access to counsel, would have a really hard time suing the United States of America unless and until he was released from detention.

Of course, that means he would have already suffered all the harm possible (sorry, pal, but that's how our legal system works), and may well find some stumbling blocks, like state secrets, to prevent an answer to silly questions like "why?"

But Judge Forrest didn't allow peripheral questions to blind her to the big issue, the facial unconstitutionality of the notion that the Executive, in executing the power of one branch of government, imprison a person without charges or review by another branch of government, because he is, after all, the Executive. She offered the Department of Justice an opportunity assert that no conduct by plaintiffs would subject them to indefinite detention, and the government declined. So be it, the court concluded.

Over at Volokh Conspiracy, my buddy Orin Kerr finds the new judge's reasoning "quite puzzling," which is profspeak for incredibly wrong and stupid.

Treating Congress’s statement about the President’s detention power as akin to a criminal statute, Judge Forrest concludes that the statute is not sufficiently clear as to what is made a crime under void-for-vagueness principles. Judge Forrest again focuses on the fact that DOJ refused to take a position on whether the law applied to the individual plaintiffs: “Finally, and most importantly of course, the Government was unable to state that plaintiffs’ conduct fell outside § 1021. In the face of what could be indeterminate military detention, due process requires more.”

Whatever the merits of Section 1021 as a matter of policy, I find Judge Forrest’s opinion quite puzzling as a matter of constitutional law. First, Section 1021 does not seem to prohibit conduct or impose punishment. It appears to be a statement of Executive branch detention authority, not a law that criminalizes certain activity. As a result, I don’t think it makes sense to treat Section 1021 as if it were a prohibition of conduct, and then to strike down the law on the basis of constitutional doctrines, like the First Amendment and the void-for-vagueness doctrine, that limit the government’s power to prohibit conduct.

Orin raises an interesting point about whether a law that prohibits no conduct in itself is a criminal law. Judge Forrest held it "akin" to a criminal law, but how, Orin questions, can a law that prohibits nothing be void for vagueness?

Orin is correct that Section 1021 doesn't prohibit conduct, or impose punishment, as those concepts exist in criminal law. He's wrong, however, to ignore that this is the core of what's so horribly wrong with the indefinite detention. It's precisely these omissions that render the law facially unconstitutional. That the prohibited conduct is whatever the President says it is doesn't mean that the law doesn't prohibit conduct. It just means that it is wildly overbroad that it includes any and all conduct without limitation, provided the Executive decides that it supports any entity he deems hostile to American interests.

This is yet another example of the law providing untouchable breadth based on a lack of definition. The less said, the broader the power. As for the lack of punishment, indefinite detention may not be a sentence of imprisonment, but you still have to eat cheese sandwiches on white bread while wearing an unflattering jumpsuit. The absence of an end date doesn't strike me as a good reason to not consider it punishment. In fact, it strikes me just the opposite.

The issues Orin raises reflect a more insidious problem, and one that goes well beyond this horribly misguided law. Congress has gone into the business of crafting hybrid laws, skirting the traditional definition of criminal laws (and often officially calling them civil which somehow make imprisonment feel much cheerier) and thereby defying constitutional scrutiny, whether over vagueness or due process. Another example of a hybrid criminal law is the post-sentence "civil" incarceration of sex offenders, or civil in rem asset forfeiture.

While these hybrids are different in basic ways, the point is that the traditional dichotomy between criminal and civil law has long since blurred, as has the creation of fully conceived crimes, with all the components ranging from definitions to sentences. That §1021 doesn't fit the mold isn't a reason why it shouldn't be subject to constitutional scrutiny, but rather a reason why it must.

Tell the guy (which of course isn't likely to happen, since no one will ever have an opportunity) who is "disappeared" that you're sorry, but since he didn't commit a crime and was never convicted and sentenced that his indefinite detention defies constitutional scrutiny. No doubt he'll feel better about eating cheese sandwiches in a jumpsuit. Forever. For nothing.

© 2012 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.

Welcome to the Other Side

SHG — 2012-05-16T11:14:00Z

Tempe criminal defense lawyer Matt Brown wrote of his frustration.

The criminal justice system is broken. Many judges are little more than prosecutors in robes.

The courts fuss and fume when you need an extra week or two to make a decision. They push you into whatever plea comes your way.

Matt goes on to vent on the ironies and wrinklies of the broken system, how it's a machine designed to efficiently move defendants from arrest to conviction. Whenever anyone uses language like "fuss and fume," it tells me that emotions have overcome reason. This is the mistaken language of melodrama, which has nothing to do with the legal system. It's merely the annoyance over someone impeding the working of the machinery of justice.

My response to Matt was to tell him to give himself a smack and snap out of it.

This is our life. This is what we do. If it was easy, anybody could do it. If the judges were fair or caring, then we would be on the pedestal instead of cops and prosecutors. But we’re not, and that’s how it goes. Don’t wallow. This job is hard, and it sucks. And we keep doing it anyway. Give yourself a smack and get back to work. There’s too much to do and no time for self-pity. If we don’t fight, nobody will.

Rick Horowitz has been sliding down the slope of frustration as well lately. He wrote:

One reason I haven’t been blogging as much lately is I’m too angry. I’d be calling for a bloodbath: shoot all governmental authorities on sight, I’d be saying. To avoid doing that, I’ve just stopped writing much of anything.

He doesn't mean it, but sometimes the frustration comes out that way. Brian Tannebaum gave Rick the pep talk.

Things in the criminal justice system are getting pretty bad. No doubt. A decade after 9/11 we see an America where the public has no desire to curtail police power (until their kid is of course “unfairly, wrongly, and illegally stopped and searched.”)

As a criminal defense lawyer, you have a couple choices – run for office (and maybe lose), try to become a judge (not easy either), write about it (which you do), leave the practice and focus on something else, or try to make a difference on client at a time.

A vacation is also not a bad idea. Go clear your head, take a deep breath, see the good in life in other areas.

Anger doesn’t change the system – anger and work – maybe – can make a difference.

But don’t ever think that it’s going to change much. Remember that the system operates as it does because the public allows it to.

The other day, I sat across the table from Radley Balko eating flaming cheese. I really love flaming cheese. And as we talked about stuff like where he gets his hair cut, he casually mentioned that public defenders have a macabre sense of humor. Gallows humor, he called it. I agreed, that they had to in order to survive their days in the well.

I then lapsed into a discussion of new criminal defense lawyers, punctuated by the occasional bite of flaming cheese. "We all start out with dreams of being the next Clarence Darrow, full of piss and vinegar." I actually used that phrase, one that my father used all the time but rarely appears anymore.

And then they burn out when they figure out it's not so easy, when they get smacked hard a few thousand times, when they have to explain to the next wide-eyed defendant why the law didn't work. Again. Why they have to say good-bye to their children and will spend the next decade wearing an khaki jumpsuit.

There is no good answer to why. Not for the defendant. Not for the lawyer.

Debates about truth and justice are for kids and fools. The real fight is over how to maintain the zeal a young lawyer feels when he steps into the well for the very first time after he's been beaten to a pulp one time too many.

The blawgosphere is coming of an age when the last generation of blawgers are reaching the burn out point. The frustration is overwhelming. The lie of the system has been revealed. The realization that they may not be the next Clarence Darrow, or even his third cousin, has become undeniable. As brilliant and tough as they are when they start, they can no longer rely on their youthful vigor and enthusiasm to keep them going.

Those of us who have gotten over the hump and survived (meaning that we didn't succumb to drugs and alcohol, give up on defending and churn pleas for a living or turn our law practice into a used car lot), we've watched as comrades have quietly fallen by the wayside. Public defenders could share their frustrations with others in their office. Private lawyers were reluctant to do so, fearing that it showed weakness or failure. Even in frustration, no one wants to look weak.

The blawgosphere has changed this, providing a place to vent one's frustrations combined with the new normal of exposing one's inner feelings to all. It's a good thing. These feelings of frustration, loneliness, failure have stolen many a good lawyer from the ranks. We need them. Defendants need them, even though they may hate them for being the embodiment of the machinery of a broken system. Without them, who will gain the experience necessary to keep up the fight?

It's not that we're likely to win the war. If we can win the occasional battle, we've served our purpose well. It's just a matter of fighting each battle at a time, always believing that this is the one you will win. And if you don't, you shake it off and fight the next battle. And the next.

The criminal defense lawyers who hit the wall of frustration and break through are the ones who keep the system as honest as it can ever be. It may not be much, but without them, there is no one to impede the machinery of justice. We've all been there. We just keep fighting. Sometimes it helps to make a joke of it just to keep our sanity. Sometimes a stiff drink helps. A vacation is always a good idea. Whatever it takes, break through the wall. Welcome to the other side.

Cash is the Crime

SHG — 2012-05-16T10:24:00Z

Radley Balko posts about a car stop in Monterey, Tennessee, where a brave police officer, Larry Bates, caught a heinous criminal. The person driving the car, George Reby, was no criminal. He wasn't arrested.

Reby was stopped for speeding, though it's unclear whether he was given a ticket. It may have slipped the officer's mind as he struggled with the vicious criminal, wrestled the criminal until, exhausted and spent, the criminal was subdued. The name of the vicious criminal in the accusatory charges against it? $22,000 in United States Currency.

From NewsChannel5:

A Monterey police officer wanted to know if he was carrying any large amounts of cash.

"I said, 'Around $20,000,'" he recalled. "Then, at the point, he said, 'Do you mind if I search your vehicle?' I said, 'No, I don't mind.' I certainly didn't feel I was doing anything wrong. It was my money."

That's when Officer Larry Bates confiscated the cash based on his suspicion that it was drug money.

"Why didn't you arrest him?" we asked Bates.

"Because he hadn't committed a criminal law," the officer answered.

The reason for the initial question is, sadly, obvious: forfeiture has long been a mainstay of law enforcement. The seized monies go to various purposes according to jurisdiction. In most places, the funds are a prize for law enforcement budgets, providing the wherewithal to purchase cool new stuff like SWAT equipment or tanks to stop the terrorists from invading Tennessee. In other places, New York City for example, local seizures go to the police pension fund. And don't police deserve it for all they do to protect us?

So what makes currency such a heinous criminal that it requires a cop to wrestle it into submission?

Bates said the amount of money and the way it was packed gave him reason to be suspicious.

"The safest place to put your money if it's legitimate is in a bank account," he explained. "He stated he had two. I would put it in a bank account. It draws interest and it's safer."

"But it's not illegal to carry cash," we noted.

"No, it's not illegal to carry cash," Bates said. "Again, it's what the cash is being used for to facilitate or what it is being utilized for."

If we assume, just for kicks, that Bates was sincere in his suspicion, it places the decision of a nice enough fellow like Reby subject to the sensibilities of a cop like Bates. Since Bates thought it would be a better idea, if the money was to be used for legit purposes, to put it in a bank account, it struck Bates that Reby was likely to be using it for drugs. That, under the legal fiction of forfeiture, means the money offends the sovereign, and becomes the criminal. It's lucky that Bates didn't have to tase the money for failure to respond immediately to questioning, but then, what question could there be?

NewsChannel 5 Investigates noted, "But you had no proof that money was being used for drug trafficking, correct? No proof?"

"And he couldn't prove it was legitimate," Bates insisted.

The word "proof" here is probably not the best choice. Proof has nothing to do with it. The officer was under no obligation to prove anything. Indeed, the burden in forfeiture is probable cause, which requires no probability and cause only limited by an officer's imagination.

Bates' response, that it's the burden of the person from whom currency was taken to prove it was legitimate, isn't as wrong-headed as you might think at first. The trick is that if an officer can articulate any basis of suspicion, the burden to prove legitimacy falls on the claimant. And the only thing the officer needs to say is that it's a large amount of currency.

Possession of a large amount of currency in the United States of America is, alone, probable cause to believe that it is contraband, either the proceeds of crime or to be used for criminal purposes. There exists a tacit presumption that non-criminals do not use cash. Cash was the first victim in the War on Drugs, and the development of the wide variety of monetary tools in common use today was intended to facilitate the tracking of financial transactions by the government, both to end the underground economy that survived on currency and to enable taxation of all transactions.

So cash was once king. Now it's a criminal. Oh, how the mighty have fallen.

The story from Tennessee offers insight into many of the tricks of the forfeiture trade, from targeting out of state drivers (you can tell by the plates, guys) in order to substantially increase the cost and burden of fighting for the return of the money (Reby was from New Jersey), to the seemingly innocuous inquiries having no bearing on the basis for the stop or any other facially illegal conduct. Handing out a speeding ticket doesn't get anyone a medal. Bringing home $22,000 in currency is a fine day's work.

And, of course, the only person worse than the officer taking cash because it's there is the lawyer hired to fight for its return.

It took him four months to get his money back, but it usually takes a lot longer for most people.

And that, Miles said, works to the benefit of the police.

He had two clients where police agreed to drop the cases in exchange for a cut of the money -- $1,000 in one case, $2,000 in another. In both cases, that was less than what they might have paid in attorney fees.

A whole lot less. Like innocent people who can't understand why they have to pay their lawyer, or guilty people who can't understand why they aren't guaranteed a win for their money, the legal fee paid by the wronged claimant whose only mistake was to believe that currency issued by the United States government was legal tender for its return is the glue that holds the scheme together.

And the final nail in the coffin is that judicial approval of forfeiture is an ex parte proceeding, since the criminal in the currency, prosecuted in rem. Not until a claimant intervenes, after the seizure and judicial approval, by establishing his bona fides to claim the return of the money (as if it having been taken from him in the first place didn't suffice), and disproves the presumption that cash is evil, does the money get returned. And not everybody can prove either the source or purpose of the currency, despite its having nothing to do with crime.

I remember my first forfeiture case, back in the mid-1980s, when we conferenced the proceeding before a federal judge who later went on to the 2d Circuit. He scoffed at the government for making this very argument, reminding the prosecutor of the age-old maxim, the law abhors a forfeiture. Those days are only a fond memory.

Without Pics, It Never Happened

SHG — 2012-05-15T10:19:00Z

It's an internet meme, the Rules of the Internet. It's a funny joke to most, though in a peculiar way it has always carried a kernel of truth. But as Max Kennerly found out after trial, the joke is on us.

Last Friday, after 15 hours of deliberations, the jury returned a verdict in favor of our client on all six questions — relating to the nature of the agreement, damages, whether our client breached his obligations, whether defendants would get a set-off, and when the statute of limitations began to run — and awarded him $4.17 million in damages. The vote was 10–2, which is good enough under Pennsylvania law. The judge kindly let the attorneys talk with the jurors (assuming they wanted to talk, of course), so I went back to figure out what happened with those two holdouts.

As is invariably the case, what is learned from the jurors isn't quite what one expects. The case involved an oral agreement, a handshake. No pics.

When we talked to the jury, we learned that the two jurors who felt we hadn’t met our burden, and then two more jurors who had kept the damages award lower (the remaining eight jurors wanted to award our client nearly $7 million), all had one thing in common: they were under 30 years old, and they expected more of a paper trail for our client’s claims. Said one, “I felt your client was negligent in not doing more to protect himself with a written agreement.”

The norms, the expectations of Max's baby jurors were so strong that they were incapable of conceiving of a legitimate world where there was trust. The notion of two people shaking hands, making a deal, and honoring that deal, when it came to anything of substance, was too far removed from their reality for them to accept. No contract? It didn't happen.

Plenty of stuff has been lost in the past decade. Some understandably, such as rotary phones. Some disturbing, like United States currency, which has become presumptive proof of criminality. But no one said anything along the way that young people have lost the concept of honoring their word.

Maybe it's because we've become a lawyered-up society. Maybe it's because writings, whether texts, emails, twists, whatever, have replaced all other forms of communication, such that there must, by definition, be written evidence of every breath. Maybe it's because a cottage industry tells young people that legal advice is free to all, and worth every penny. Or maybe it's because their world has become their memes; the funny joke has replaced social norms as the true glue of society.

Kevin O'Keefe asked a question yesterday, Don’t law schools have an obligation to teach law students how to use the Internet? For reasons that are unclear to me, he spoke to a group of third year law students at University of Washington Law School about the internet.

I was invited to come in and speak on how lawyers can use the Internet for professional development (getting to be a better lawyer) and business development (getting a job or getting clients in an area you want to work in – area of practice or location).

While it may seem odd that a law school invited a vendor in to speak to students, I've been on a panel with Kevin and know that he gives not only a good talk, but a straight talk. He doesn't sell his products, or even push his LinkedIn Blogging group ("where brain cells go to die"). The old lawyer part of him kicks into gear and he tries to provide serious information, if only a bit tainted by his perspective. Then again, his audience tends not to want to hear straight information, but rather the quickest, surest way to make money. You can't blame Kevin for what his audience wants of him.

What he found was disconcerting.

Rather than being ahead of the curve in their use of the Internet, most of the students were behind practicing lawyers in how to use the Internet to accelerate relationships and word of mouth referrals. Ironically, all of them agreed it was referrals and a strong word of mouth reputation that drove a good lawyer’s practice.

Were these 3Ls the last bastion of disconnected, rotary phone users? I suspect what Kevin means is that they may have all clutched a iPhone in their grubby little hands, but their grasp of the internet was limited to lurking on 4Chan and reading Above the Law, thinking that this is what being a lawyer in the age of the internet was all about.

Kevin was directing them to an internet they never knew existed, the one where lawyers try desperately to sell themselves to each other. It was an epiphany.

Afterwards out in the hallway (where you get to know students and their struggles), students came up to me and asked why doesn’t someone like me teach a semester long class or do a semester or year long clinic on how to use the Internet in the ways I was trying to cover in 2 hours. Students told me that no one had told them how to use the net this way. One student told me he felt so far behind the times.

If ever there was an argument for dispensing with the third year of law school, this is it. Finally, something of worth to be learned. Not cross-examination. Not how to craft an effective motion. Not even the rudiments of negotiation. Nope. They wanted to know how to sell themselves on the internet. They wanted a semester's worth of it, if not a full year clinic. They know what matters.

Images of another 10,000 websites popping up overnight, proclaiming shiny new lawyers as "experienced, aggressive and caring," with a very impressive resume provided one doesn't fact check much, came immediately to mind. I wonder whether any lawprof has taken a look at what students are saying about themselves on the internet a year after graduation?

But as long as it's there, on the internet, in writing, with pictures, it's real. The handshake is dead. Honoring one's word is for dinosaurs. Anyone who doesn't create hard proof deserves to get nothing. We used to call this memorializing an understanding, but it's now been subsumed by an internet meme. And with Kevin's help, they're coming to a lawyer website near you. You can rest assured they'll have pics, because without pics, it never happened.

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An Epidemic of Furtive Movement

SHG — 2012-05-14T11:45:00Z

It would be a New York joke if it didn't mean that 684,000 people were stopped on the streets of New York and frisked last year. In 2003, cops stopped and frisked 160,851 people and recovered 604 guns. This proved that stop and frisked worked, even if it meant the sacrifice of the right to be left alone of more than 150,000 people.

Last year, they recovered 780 guns, proportionately negligible, which again proves that stop and frisk works. Mayor Bloomberg explains that the reason so few guns per capita were seized is that people are afraid to walk around the guns for fear of being stopped and frisked. With that rationale, the program is a rousing success no matter what comes of it.

More than half of all stops were conducted because the individual displayed “furtive movements” — which is so vague as to be meaningless.
The data also show that the police are significantly more likely to use force when they stop blacks and Hispanics than when they stop whites. This means minority targets are more likely to be slammed against walls or spread-eagled while officers go through their belongings. Even when victims are unhurt, they are likely to develop a deep and abiding distrust of law enforcement.

Let's be clear: if police could stop at will anyone they wanted, they would turn up more illegal stuff, whether guns or drugs, than they would if they were limited by something like, oh, a Constitution. Same is true if they could search houses at will. Or people traveling on airplanes.

That Mayor Bloomberg has to stretch so far to spin what he knows to be a flagrantly unlawful program is telling. He's not stupid. Few billionaires are, and even then, they have the wherewithal to surround themselves with smart people. Somebody must have mentioned to him at some point that this really isn't kosher. When the Newspaper That Shall Not Be Named Here Anymore has an editorial stating that stop and frisk is a terribly wrong thing to do, does Punch Sulzberger think it's going to change something?

What this reflects is the Mayor's relative weighing of two irreconcilable responsibilities, one to protect New Yorker's from crime, and the other to respect New Yorker's right to walk the streets without being slammed against a wall for no particular reason. When David Dinkins was hizzoner, there were bloodbaths on the streets of uptown Manhattan, and chains ripped from the necks of white folks downtown. Dinkins wasn't as inclined to promote the police rousting people at will and people screamed about the murder and mugging rates. Of course, the crack epidemic might have had something to do with it as well.

But times have changed, as has the regime on power, and the mess that existed under Dinkins, and exacerbated under his successor, Rudy "If Only I Could Be President" Giuliani, have given way to substantially reduced crime, particularly gun crime. The penalties for possession of a weapon are far more severe than they used to be, and the demographics have changed as well.

So naturally, the solution is the perpetuation of a program at whose core is the evisceration of the constitutional right to be left alone. And naysayers aside, it works, even if it means that many hundreds of thousand of people have to give up a little so that the residents of Sutton Place can sleep at night.

Because filling out forms is the highest order of government service, police officers are expected to do two things: Each time they stop and frisk someone, fill out a form. Each time they fill out a stop and frisk form, state the basis for the stop. And so they do.

This has been going on since the beginning of the program, when naive people (like me) thought 160,851 people stopped for no reason was an outrage. Now that we're closing in on 700,000, maybe it's time to be honest with ourselves. While there has been some squawking from the Newspaper Who Shall Not be Named Here Anymore, the NYCLU and a couple bloggers, there has been no massive uprising against the stop and frisk program. Bloomberg continues in his post as Ruler for Life, and Ray Kelly bobble-head dolls continue to sell like hotcakes.

Forget Mapp v. Ohio, which the uninitiated seem to think applies, and even DeBour, which provides the constitutional limits to police seizures in New York. Every lawyer, every judge, every politician, every cop and certainly every black and Hispanic, in New York knows that to walk the streets of Manhattan is to invite a stop and frisk. No, the law says they can't do it. Yes, they do it anyway. No, as the numbers climb closer to a million souls stripped of their right to walk on the street without being tossed in the name of safety, there are no cries of revolution.

There is no epidemic of furtive movements. Let's put the lie to rest, stop demanding that cops keep breaking the law again by filing false documents at the behest of the administration, and put up a big sign at the midtown tunnel: All persons subject to search.

The choice has been made and the Constitution lost. At least show New Yorkers the courtesy of being honest about it.

Cincinnati Police Chief Says Tasers Can Kill

SHG — 2012-05-14T10:21:00Z

James Craig, of "I'm a Phoenix fame," heads up the 1000 member Cincinnati police department. While that number of officers is slightly more than the number needed to change a New York light bulb, it's still a big city police department, which makes James Craig's announcement matter, as he's the first top cop to admit the obvious: Tasers sometimes kill people.

From Cincinnati.com:

In light of a recently released scientific study that shows the electronic Taser stun guns can cause cardiac arrest and death, the leader of Greater Cincinnati and Northern Kentucky’s largest police force announced today that the findings concern him and changes are coming to the department’s policy regarding the devices.

Cincinnati Police Chief James Craig said the changes should come in about a month. Those could include altering where officers direct the Taser’s prongs on a suspect’s body, perhaps at the back as opposed to the front, Craig said.

Every silver lining has its cloud, of course, so while Craig acknowledges that non-lethal means occasionally lethal, and that there is presumptive connection between shooting people in the chest and cardiac arrest, he solution is to shoot people in the back?

One might wonder if he has considered why, praytell, the back of a person who needs shooting would be facing the cop. But it's possible that he didn't study anatomy at the University of Phoenix, and remains confused as to which direction the person in need of Tasering is facing when his actions are so threatening as to demand the use of force against him.

“I am concerned about it because, like most police chiefs, I am a big supporter of the tool. We know that the tool has saved lives,” Craig told reporters in a media briefing at Cincinnati police headquarters in the West End. “We know it’s minimizing injuries to both police officers and suspects. Based on this report we are looking at our existing policy. We will be making some revisions.”

He said he will not pull Tasers from officers’ belts, and this is not the first time the device’s policy has been revised.

“We are not going to eliminate the use of Taser. We just want to make sure we are doing it within what this evidence-based report is suggesting,” he said. “I think that it is suggesting - the key point - is elevated heart rate and the taser coming in contact close proximity to the heart if someone has an elevated heart rate. Usually when we have contact with suspects, it’s pretty clear their heart rate is elevated.

That's pretty darned likely, as is the possibility that they are using drugs or in less than perfect health, all characteristics of the sort of folks who end up on the business end of a Taser, and all characteristics of the sort of people who die when tased.

While Craig's embracing evidence-based thought is a novel approach for a police department, and one that should be (and is) applauded, there remains a question as to what, exactly, he plans to do to reduce the likelihood of people being killed by "non-lethal force" for calling cops bad names. The "tase-'em-in-the-back" policy has some inherent problems, the least of which is the laws of physics. What about the "why-tase-'em-at-all" question?

Now that Chief Craig has openly acknowledged what everyone not on the Taser International payroll has long known to be the case, that Tasers aren't always less-than-lethal, the next logical step is control their use as the tool of first resort to prevent a cop from having to spend a few minutes talking a defendant off the ledge rather than tasing anyone who backtalks, questions or doesn't comply fast enough (especially if they happen to be deaf, blind or intellectually or mentally impaired).

At what point will a big city police chief decide that painful and potentially deadly force should not be used except to meet force and prevent injury?

Since 2001, more than 500 people have died following Taser stuns according to Amnesty International, which said in February that stricter guidelines for Taser use were “imperative.”

There is no doubt that Tasers have saved lives, both cop and non-cop, when there was justification for the use of force, and getting tased beat the hell out of a bullet from a Glock. The problem isn't that they haven't served as a valued tool, but that the use of Tasers as an expedient means of shutting down a recalcitrant person who poses no threat to anybody for the convenience of a police officer remains largely uncontrolled.

The idea of praising James Craig for acknowledging that Tasers can kill seems incredibly banal at this point. It's not that empirical evidence isn't a good thing, but all those dead bodies send a message of their own, despite Taser International's explanation that it just must have been their time, and had nothing to do with getting tased.

If someone threatens a cop, or anyone else, with physical harm, their chances of surviving a Taser over a bullet, or even a half dozen cops with clubs beating them until their clubs break, suggests that the weapon should remain on the utility belt. It is a useful device, and one that benefits everyone involved when used properly.

Maybe avoiding the chest is a great idea to reduce the risk of killing someone. Maybe avoiding the use of weapons, of force, altogether when there is no reason for any force to be used, is a better idea. Just because there's a Taser on their belt doesn't mean they have to use it whenever it's convenient. And if they don't use it without reason, that's one less person who won't die.

Tactical Dismissal, or How To Make A Federal Judge Cry

SHG — 2012-05-13T11:42:00Z

One of the tactics frequently urged by aggressive lawyers is to push judges to start living up to their oaths by granting motions, whether for suppression, controversion or even simple discovery. You know, the stuff that really shouldn't be an issue at all except for the fact that the Government will not ~~negotiate with terrorists~~ give the defense half a chance at preparing.

On the island of Saipan in the northern Marianas, a lawyer named George Anthony Long pushed the envelope by demanding that the government disclose stuff it didn't want to disclose. Not that it was some huge secret, but that it would have offered Long the chance of defending his client, Julita Sablan. And the judge, Mark W. Bennett, granted his motion.

So the government promptly complied with the court's order and turned the requested material over to the defense? Nope. From the Appellant's petition for rehearing en banc:

The factual background underlying the Rule 48 argument has its genesis in several pretrial orders compelling the government to produce certain portions of the DEA Agents Manual and DEA Laboratory reports deemed relevant and material to Julita’s defense.

Rather than produce the portions of the documents, the government moved to dismiss all charges against Julita pursuant to FRCrP Rule 48 and Julita consented to the motion. The court then, sua sponte, reconsidered its discovery orders and denied the Rule 48 dismissal motion.

If you're having a problem wrapping your head around this, let me explain. The defendant moved for disclosure of stuff that was good for the defense, and Judge Bennett ordered the government to do it.

Do it, government, Judge Bennett said. Just do it!!!

How cool was that? Disclosure in a federal case in the District of the Northern Mariana Islands! The government, however, was not about to be told what to do by any judge named Bennett. No way. So instead of disclosing, the government filed a Rule 48 motion, which is the equivalent of telling Judge Bennett to go screw himself. Instead of disclosing, they responded with a pox on your bench. And, naturally, the defense consented.

Was Judge Bennett serious? They called his bluff by tossing the prosecution and leaving the good folks of the Northern Marianas in the clutches of Julita Sablan. Hah, they spit. And when they tell the tale of the judge who condemned Saipan to drugs, it will be on your head, the government said.

And Judge Bennett collapsed. He folded like a cheap suit.

Judge Bennett, sua sponte (for you non-lawyers or folks who slept through Latin class, sua sponte means he did it on his own without anybody asking) reversed his prior ruling compelling disclosure and denied the government's motion to dismiss. Pwned.

If you've ever had the pleasure of getting a huge ruling, one where you get a judge to move off the dime and actually make the government do something that forces them to give the defense half a chance at fighting, you know the feeling. It's like a miracle. It's fantastic. You feel ten feet tall, You feel brilliant. You feel like you've finally done something to make all those knee-jerk denials, all those affirmed no opinions, all those rulings that cut your knees out from under you and make you wonder why you wasted a clean shirt, worthwhile. It's one of the best feelings a criminal defense lawyer can get. And defendants like it too.

And then the rug gets pulled out from under you when the court, in an act of supreme supplication, realizes that by doing the right thing and applying law, he's violated the basic precept of the legal system: Never give the defense a fighting chance. And poof, it's gone. Reversed, denied, gone. No, there's nothing more to discuss.

Try explaining to your client how, in the blink of an eye, a huge win turned into a crashing defeat for no reason whatsoever. Except it's not quite no reason, but really acquiescence to the government. The government refused, and the judge couldn't bear the government's ire. And so, poof.

But the law wasn't done smacking George Long around just yet. It wasn't enough that his win crashed around him. The defendant pleaded guilty, and he argued that Judge Bennett should take the government's willingness to dismiss into consideration at sentence. Nope, he said. Judge Bennett, having been told he's a bad boy once by the government, wasn't about to suffer it's displeasure again.

Long appealed. Nope, said the 9th Circuit in an unpublished opinion, noting that the defendant got enough of a break as far as they were concerned. But Long, even though he was assigned CJA, petitioned for rehearing en banc because the Circuit affirmance neglected to mention, note, consider or recognize that Judge Bennett's refusal to consider the Rule 48 motion at sentence wasn't quite the law.

The Circuit had enough. Not only did they deny the petition for rehearing en banc, but they went to a place appellate courts rarely go.

The panel concludes that this petition for rehearing is wholly frivolous. It does not represent “time reasonably expended” on behalf of the client. 18 U.S.C. § 3006A. Accordingly, no compensation shall be awarded for it pursuant to the Criminal Justice Act.

Let that be a lesson to any lawyer with the audacity to push the court when he's on the government's dime.

Mammas, Don't Let Your Babies Grow Up To Be Lawyers

SHG — 2012-05-13T10:17:00Z

The market is speaking. It may be wrong and foolish, but that never stopped the market from speaking before, and it won't this time either. And you can't argue with the market because it only speaks. It doesn't listen. At The Legal Whiteboard, Bill Henderson is trying to tell us what it's saying.

This story is fresh off the newswire: "Law firms are no more the preferred destination for fresh law graduates looking for jobs. With outsourcing catching up even in this industry, legal process outsourcing (LPO) companies are now bagging a large number of graduates." A law professor opines, “There is a rising trend of students opting for LPOs. The nature of work is changing and these places offer good packages and work culture. ... [P]romotions also come faster in LPOs.”
Wonderful news. But the story was written for the Hindu Business Line. The law graduates went to school in India. Why are the LPOs become more attractive jobs for Indian law grads? Probably because (a) LPOs are increasingly focusing on process and technology, engineering out the drudgery work, and (b) process and technology are creating a sustainable competitive advantage within a global industry -- and that can support higher salaries.

This isn't the entire legal market, but it has a virtue that lawyers in the United States don't have. It's alive. It's thriving. It's where the legal work that used to go to American lawyers now lives. Not all of it, of course, but a lot of it. Not all types of legal work, but the routine, commoditized, crappy, boring stuff that was once the lifeblood of new lawyers.

Bill has an important message in his post, which sadly is hidden behind academic jargon, on the one hand, and inadequately detailed application to practicing lawyers, on the other. So let me play sign language interpreter for a moment. The bulk of work that kept baby lawyers in civil firms busy until they got some decent lawyer chops and learned how to bring in business is being done in Bangalore at $3 an hour or fed into a computer. Where it's not going is a firm near you, which is why a firm near you has no job for you.

This means that lawyers have to shift out of the routinized, commoditized work that provided them jobs before into practice areas that can't be shipped off shore. Except they aren't competent to do so, undermine the market price and fill the courthouse with death and destruction. They do this because they have no place else to turn. They have a ticket. They have debt. They have no other future. And we keep churning them out.

A second post by Bill Henderson notes that LegalZoom has filed for an Initial Public Offering. While real lawyers struggle to pay rent, LZ had revenue of $156 million and turned a profit of $12 million. Plus, it loves all those poor, miserable souls who need legal-type stuff but don't want to pay a lawyer.

We believe that everyone deserves access to quality legal services so they can benefit from the full protection of the law. Our mission is to be the trusted destination where small businesses and consumers address their important legal needs and to be our customers' legal partner for life.

A different way to say that would be that they sell forms to people who have no clue what they need or why, using the brilliant method of taking a piece of paper that only needs to be written once and selling it a million times over. One size fits all? Close but no cigar? Not even close? A disaster waiting to happen? So what?

Whether it's corporations or mom & pops, they are prepared to trade off bespoke legal services for potentially crappy but substantially less expensive, and take their risks. They've come to realize that the "bespoke" legal services aren't all that great, because most lawyers aspire to mediocrity, caring only that the check cleared, and because even if a client tries to do everything as well as possible, the legal system (I mean you, judges) are considered so unreliable that there's no faith that the righteous will prevail. So if expensive legal services are a crapshoot, and inexpensive legal services are a crapshoot, why pay more?

But we're criminal defense lawyers here. Neither computers nor lawyers in Bangalore can do what we do, right?

Do the math. Law schools continue to crank out tens of thousands of newly minted, deeply indebted, lawyers every year with no place to go. To the extent that they have any hope of practicing law, the kid who dreamed of one day being an M&A lawyer at Skadden and buying that Ferrari is now standing in the hallway of 100 Centre Street hustling misdemeanors at $100 a pop. He has no choice, if he wants to eat again tonight.

But lawyers aren't fungible, you say? Of course not, but most clients can't tell us apart. We all wear similar suits and, despite the cheerleaders, our websites extolling our virtues are essentially the same. You're an "experience, aggressive and caring" lawyer? Well, isn't that special. So is the kid next door, who got his licence last week. So is the old man down the hall, who has 30 years of experience. So is the guy who did real estate closings until the business went bust. Etc. We've hyped ourselves into oblivion, and the potential client has a choice of 31 flavors that all claim to be vanilla.

On the other hand, he doesn't really want to waste his money on you. You say you're worth it, but he can't tell. You guarantee nothing, because you can't. The system sucks, as the internet tells us, making the concept of trying one's best seem like a fools errand. The net result is why bother. If you're going to lose anyway, save your money.

Within the discussion of what has to change in the nature of American law schools, and the practice of law, is that our society has no need for the tens of thousands of new lawyers being dumped on the market. Not only is it bad for the silly children whose mothers told them that becoming a lawyer assured them reasonable prestige and security, but it's bad for everyone. The Boulevard can only handle so many lawyers in hotpants.

But Greenfield, you ask, isn't it true that there is a massive underserved population who is in desperate need of legal services? What about them?

Yes, I respond, but they're not your market, your potential client. They want and need a lawyer, but they have no money to pay you. Society won't put together the money to pay you, as that would take needed money away from buying armored vehicles for the police in Peoria to stop terrorists. While it would be very nice of you to served these poor, needy folks, what will you tell your babies when you have no money to put food in front of them this evening and they're really, really hungry? The price of cannibalizing ourselves is that a robust legal profession can't be maintained, and if lawyers have to take jobs as assistant manager at Dairy Queen to survive, they really aren't lawyers anymore and can't help much of anyone.

Shutter the law schools. Whether it's a third, or half, or more, there is no future in the law for most of these students. As we discuss how to fix the systemic problems arising from the structural changes in the law that Bill Henderson talks about, one thing that's clear is that we have no use for the numbers of full fledged lawyers that are being produced. Yet, the ABA keeps accrediting more law schools, and they do whatever they have to do to fill their seats.

Don't cry for the empty classrooms and idle lawprofs. They can convert them to carpentry schools. Do you have any idea how hard it is to find a good carpenter? And lawprofs, being the intellectual elite, will quickly learn how to lecture on the theory of hammers and nails. They'll survive, like cockroaches after nuclear holocaust. But whether lawyers survive is another story.

My gift this mother's day is to pass along a message. You love your child and want the best for him. Don't let him become a lawyer. Maybe a cowboy would be better.

Failing Law Schools: What If Tamanaha Is Right?

SHG — 2012-05-12T09:34:00Z

According to the review in the Chronicle of Higher Education, the advance copy of Washington lawprof Brian Tamanaha's new book, Failing Law Schools, was "circulated to a handful of prominent legal scholars." And I got one too. It's devastating.

While it thoroughly covers the obvious, from bloated salaries for underworked "scholars" whose glorious research and writing is subsidized by students who take on massive debt for the honor, yet leave school armed with theories without the slightest clue of how to practice law, to schools driven by profit incentive to game the U.S. News and World Reports ranking for fear of dropping a notch and being relegated to the academic junkheap, where their fellow scholars will laugh at them and their salary will shrivel like a penis in Long Island Sound in May.

But Brian covers a wealth of historic background, the "how we got here" stuff that goes back to the days when law transitions from common apprenticeships to the "professionalized academic" style we now see as absolutely necessary and beyond the possibility of reformation. This part of his book made me realize that the tin foil hat wearers, while still crazy, aren't as crazy as I thought.

As the notion of normalizing a legal education across the country and schools took form, a conflict existed as to how it ought to look. The ABA, captured by the professoriat who represented the ideals of Big University, created an image of law school that served two purposes, ridding the scholars of those annoying schools capable of turning out lawyers quickly, inexpensively and effectively at the expense of grander academic ideals. The other purpose, which comes as no surprise, was to institutionalize and mandate the protection of the scholar class, even though it bore no necessary connection to the core purpose of educating lawyers.

In other words, it was a conspiracy to preserve and protect scholars, even though it really had nothing much to do with educating lawyers. They just needed some protecting or they, like dinosaurs, would become extinct. As they got to write the rules, they wrote rules that perpetuated their continued existence.

Some of the big questions, such as why three years rather than two? Why tenure? Why scholarship as a necessary component of law school academia? Tamanaha gives answers. They're not pretty. Had there been a shift in relative power at the time, things would have looked very different indeed, and law school today would have looked very different.

The point of this digression into the history of law school is that most of our sacred cows today were borne of self-interest by the professoriat at the time the model was created, rather than sound educational necessity. What we now think we can't live without could just as easily have never existed, and we would have been no worse for it.

It's a pretty shocking view.

Another bit of news is that one of the most highly promoted options that have been moving about the discussion, the creation of third year clinical programs in order to teach students to practice while keeping them on board as tuition payers, isn't all its cracked up to be. They're expensive to run. They don't do nearly as well at teaching practice as an actual apprenticeship would do. They continue to add to law school debt, even though students are working for a living.

Add to this Walter Olson's beef, from Schools for Misrule, that the focus of most clinical programs reflects the political bias of academia (why should students be indoctrinated to believe that people suing large corporations are inherently more righteous and entitled to clinical love than the corporations being sued, or that "victims" of domestic violence are invariably honest and good while defendants are necessarily guilty and evil?), generally a very liberal bias, such that they're not only teaching practice, but good and evil as well, and suddenly clinics aren't a panacea.

Brian Tamanaha's Failing Law Schools is meant to serve two purposes: First, to compel his fellow lawprofs to pull their collective heads out of their butts and stop denying that they've created an awfully damned cushy world for themselves at the expense of students. The second is to begin the discussion of how to fix things.

From the rumbling I've heard in advance of the book, a great many lawprofs believe that this book is going break things wide open. Though many won't speak out publicly, whether because they're a bunch of sissies, fear loss of admiration from their peers, can't bring themselves to hurt people's feelings or, as seems to be the predominant reason, fear that once the words leave their fingertips, there will be no going back. They fear that a rift will develop within the academy, and they don't want to be either pariahs (if they're on the losing end of the debate) or lose the camaraderie of others in their insular community. Yes, it sucks to believe in something but lack the guts to stand up for it. Ask Paul Campos, the most hated man in academia.

What some don't realize, but I do, is that there are a lot of lawprofs who agree with Campos. I know because they tell me, though they ask me to keep it our little secret. While I honor my promise to bite my tongue, they need to know they aren't alone.

Then again, the view of the institutional tool remains:

Paul S. Berman, dean of law at George Washington University, says there is some truth to Mr. Tamanaha's arguments about the economic consequences of attending law school, particularly when students attend expensive, low-ranked schools in weak job markets. But he says Mr. Tamanaha exaggerates the extent of the problem, in part by failing to adequately consider the flexibility that federal income-based loan-repayment plans offer students.

In other words, if we can just shift the loan-repayment issue off the backs of students and onto the back of, let me think, taxpayers, lawprof salaries won't have to take a hit, and they can continue to teach ~~8 hours~~ 6 hours (I've been corrected, that normal lawprofs teach 6 hours while elite lawprofs teach 4 hours) a week and spend the rest of their time sipping sherry and doing serious thinking.

The final part of Brian's book offers some solutions to the problem, and this is where it's most exposed to attack:

Michael A. Olivas, a professor of law at the University of Houston and a past president of the Association of American Law Schools, says relaxing accreditation standards to allow more-diverse education models, which Mr. Tamanaha calls for, could lead law schools in the direction of for-profit institutions like the University of Phoenix, which critics contend shortchange students.

As Mr. Olivas puts it, the result could be "the Phoenix-ation of law schools, churning students through, having a contingent and transient faculty, and none of the institutional investment in the broad roles of legal education."

Notably, Orin Kerr responds to Olivas by asking, "what's so bad about that?"

Some law schools may follow that approach, but others won’t. And students ultimately will be the ones to decide which balance of approaches is best, as their decisions where to enroll will determine which schools remain viable. I don’t see why we wouldn’t want students to have that choice. “Institutional investment in the broad roles of legal education” is expensive. If students can get a good legal education without it, I don’t know why they shouldn’t be able to choose to do that.

After discussing the solutions aspect with Brian, it appears that this was not so much intended as a conclusive fix, but rather the starting point of the discussion. The first step was to establish beyond question that there exists a systemic problem that has finally collapsed under its own weight, that this isn't just a temporary bubble problem which will right itself once the economy improves that people start throwing money at lawyers again.

There are issues with the solutions Brian offers, some of which are impractical and some of which resolve one issue at the expense of another. From my perspective from the trenches, there remains much work to be done so that solutions address the issues that continue to foul the profession for many years afterward, and consider the impact on the people we exist to serve rather than just students and teachers.

Not everyone in the Academy is completely against the idea of including lawyers in the discussion. though they still see it in isolation, rather than as part of the larger legal ecosystem, and consider the problem theirs to fix, with lawyers (and clients) having a say as matter of courtesy rather than right. I suspect this is due to the assumption that since it's their salaries and leisure time on the line, they've got more at stake.

They're wrong about this. Law school is the first step in the creation of a cadre of professionals whose purpose is to serve society, not a place to generate money to pay lawprofs or provide them with an office to contain their deep thoughts. It's not merely the cost to students and the debt they will carry for decades, that pushes them to engage in dubious conduct and view their roles as entitling them to do whatever they must to get their heads above water. It's not just the ability of practicing lawyers to earn a decent living, even though it falls substantially below that of lawprofs, in order to continue the practice of law rather than switch to a higher paying position as assistant manager of Dairy Queen.

It's about all of this, but even more about have a group of people who do something called practicing law so that our fellow human beings can have a society where they don't have to kill each other to resolve their disputes, or get shuffled off to prison any faster than the government can make them. This is why we have lawyers, which is why we have law schools, and those who teach them, and why the problems, and their solutions, is a duty for all of us.

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Saving the Drug War: Prosecutorial Oblige

SHG — 2012-05-11T11:20:00Z

When Eastern District of New York Judge John Gleeson used his sentencing memo in U.S. v. Dossie to send a message to the Attorney General to stop being such a mindless tool, his purpose was to castigate the Department of Justice and its co-conspirators in abusing the power it was given just because they could.

Former prosecutor turned Gibson Dunn partner, Jim Walden, didn't quite get the message. In the National Law Journal, Walden makes sure his bona fides are clear:

I support the war on drugs. Indeed, I can fairly be called a hawk. I spent most of my nearly nine-year career as a federal prosecutor attacking (largely white and Asian) drug-trafficking organizations and putting their members behind bars for long stretches. For every wide-eyed, liberal, young lawyer I meet who naïvely criticizes the wisdom and resources this "war" has entailed, I issue the same challenge: Read the daily papers and keep track of drug-related murders, assaults, robberies, break-ins and general violence for six months — and then explain to me why drug enforcement should not be one of our top enforcement priorities.

Glad to know that you're available to have lunch with Andy McCarthy, though this is no doubt expressed so that other "hawks" realize you're no "wide-eyed, liberal" who "naïvely criticizes" the drug war. As Walden informs, however, the problem isn't the worthiness of the war, but that it has exceeded its purpose:

Congress empowered the Department of Justice — through the creation of mandatory-minimum sentences — to end the careers of committed drug dealers. Second, the mandatory-minimum sentences were intended to be used against drug "kingpins" — the people at the upper echelons of large trafficking organizations, who make the most money, wield the most power and inflict the greatest violence and destruction.

Is that really what Congress did, or did you just believe the press release with all your heart and soul, the stuff meant to keep the nice folks in Peoria happy and buy votes in Cincinnati. The story behind mandatory minimums was that it was to put drug kingpins in prison, but the quantities at which mandatory minimums kick in tells a different story. Take a peak inside any federal prison and tell us how many cartel drug kingpins you see in those cells? They're filled to capacity, and not a kingpin to be found.

Walden, the drug hawk, contends that the problem isn't with the war, or the law, but the overuse of mandatory minimums by prosecutors.

Cracking down on the street-level organizations, and stopping the collateral damage they inflict, is a laudable goal, an essential one. Doing so at the expense of fairness and equity is not, and street-level traffickers should not face the same consequences Congress intended for kingpins.

This is where Judge Gleeson's Dossie decision comes into play. And where it's artfully abused. Using Dossie as the exemplar, Walden argues that prosecutors could "cure" the lack of fairness and equity by exercising better discretion in applying the mandatory minimums. The problem, thus, isn't that the law is horrendously wrong, imposing mandatory minimums on people who fall a bit shy of drug kingpin. No, no. No problem there. It's merely an empowerment of the DOJ to have the weapons available for when Prosecutors, there to protect us from the ravages of crime, feel the need to impose these harsh sentences.

Yet again, we're asked to trust those in power to exercise it as they see fit. Trust them. Believe in them. Don't worry our naive heads about it, as they will protect us from the evil people. Let them have their mandatory minimums, and smarter people than us will remind the Prosecutors should they forget Congress' will, to exercise their vast but necessary power with mercy and discretion, fairness and equity.

Except that's neither how the law works, nor is supposed to work. The law is not meant to be a bludgeon in the hands of the government, where the powerful get to exercise it if and when they deem it necessary. That Hawkish Mr. Walden trusts the Department of Justice to tread lightly where he, in his hawkish personal opinion, believes it's warranted is not a substitute for my vision of fairness and equity.

It's not that we disagree that street level drug dealers should not be subject to the mandatory minimums. Indeed, we are in complete agreement, to that extent. But I have no plans on handing unfettered discretion to the government to decide if and when to slam a defendant, because someone in the United States Attorneys office has decided that he's the one who deserves it.

What makes posts like Walden's insidious is that many will applaud his take, that he argues against the application of mandatory minimums to non-kingpins. Woo hoo, they cry. He's one of us. Do not be fooled. He is most assuredly not one of us, whoever us is. He is a purveyor of omnipotent government, with only Prosecutorial Oblige to limit its worst impulses.

If you trust the government to be all-powerful, but only use that power when it's deemed necessary, than maybe you can go to lunch with Walden and McCarthy. If you prefer that Congress enact laws that prevent the government from using the bludgeon at will, then don't be fooled. When the government has power, it uses it. As long as there are mandatory minimums, there will be full prisons.

When Deplorable Meets Harsh: The Michael Pena Sentence

SHG — 2012-05-11T10:10:00Z

The crime committed by former New York Police Officer Michael Pena was, as Justice Richard Carruthers called it at sentence, "deplorable."

Handing down a sentence that virtually assures 28-year-old Michael Pena will spend the rest of his life behind bars, state Supreme Court Justice Richard Carruthers said the former officer "showed by his deplorable conduct that he was not one of New York's Finest," invoking the department's nickname.

"He showed instead that he is a sexual predator," Justice Carruthers said.

No question about that. Pena was a forcible sexual predator in the real sense, not merely the politically correct hyperbole that reduces words to meaninglessness. His conduct was, in every sense, deplorable.

But that doesn't provide much of a measure for sentence. When the judge announced the sentence of 75 years, two things became abundantly clear: First, that the sentence was significantly more harsh than Pena would have received had he been convicted in a typical murder case. Second, that he would die in prison. He was sentenced to death, the slow way.

In Tamer el-Ghobashy's Wall Street Journal story about the sentence, I sought to convey the disconnect between the deplorable crime and the severity of the sentence:

Scott Greenfield, a veteran criminal-defense attorney who runs a legal blog, said the sentence is "hugely excessive in the abstract," especially when weighed against the 25-years-to-life sentence typically reserved for murder.

Mr. Greenfield suggested that Mr. Pena's status as a police officer who broke the public trust and used a police-issued weapon was "probably an aggravating factor that elevated" the sentence.

Still, as legal thresholds evolve, Mr. Greenfield said, a life sentence for crimes such as drug dealing are becoming more common. He said it is difficult to assess how unusual Mr. Pena's penalty is.

"Is this an extreme sentence for someone who didn't commit the crime of murder? It used to be," he said.

In the post-federal sentencing guidelines age, the post-Madoff sentence, it's no longer possible to assess an unusual sentence. The range tends to be from harsh to ridiculously harsh. Trying to make sense of sentences, or even to find context within which to place a sentence, is nearly impossible.

After Tamer's article appeared, I received an email from a woman who claimed no connection to the case, but wished my wife and daughter would be brutally raped in punishment for my words. That someone overwrought with emotion would write such a thing isn't uncommon, but reflects that an unfortunately typical lack of reason when it comes to the public's perception of sentencing. The anger is so strong that they should all die, as should anyone who doesn't share their anger.

Pena's lawyer, Ephraim Savitt, was so outraged by the severity of the sentence that he took the media. In an op-ed that was published in the Daily News, Savitt wrote:

True, my client was convicted of acts that are unpardonable. The jury found unanimously that he sexually assaulted the victim, but was deadlocked on whether or not he had raped her.

This calls for a strong sentence. According to the John Jay College of Criminal Justice, the national average sentence for rape offenders does not exceed 10 years. Michael Pena has been sentenced to more than seven times the average for his conviction on nonrape charges. Life behind bars, which is essentially what he received, is typically the sentence given to career criminals, Al Qaeda terrorists and professional hit men.

While making a strong case for the disproportionality of the sentence, Savitt took a problematic path to get there:

But what’s this really about? Will the victim “find peace” now that my client has been sentenced to the functional equivalent of life imprisonment?

Hardly. These days, politics, vengeance and trial by the media have become the order of the day. Those factors have created significantly higher watermarks in sentencing — but only for certain offenders, namely those who serve or served as cops.

His explanation for what went so terribly wrong is that Pena was a cop. This argument doesn't bear out particularly well for two reasons. The fact that Pena was a cop, a New York City Police Officer, with a shield and a department issued gun which was used to perpetrate his crime, is a factor that should be taken into consideration. Had he not been a cop, he wouldn't have been authorized to carry that gun, a huge trust between society and a man that he can wield a weapon and authority to serve society. That he used it to sexually assault a woman is a massive violation of that trust, and deserves recognition as an aggravating factor.

The other aspect is that the newspapers, and these digital pages, are replete with stories of cops doing harm, committing crimes, even murdering people, who walk away with light to no sentences because they're society's heroes. Maybe they did wrong, but we avert our eyes from the dead and destruction they cause because they are cops. Savitt's claim that cops have it worse because of "politics, vengeance and trial by media" just doesn't bear out.

In this case, the message is aimed at law enforcement: If you have a badge, your crime may result in life imprisonment.

If it were that simple, it might not be such a bad message. Given the opportunity that a police officer has to do harm, whether sexually or by sentencing a person to prolonged death by lying about his guilt, and the relative lack of constraint, there ought to be some real fear of consequences. That's what general deterrence is all about, and lord knows there isn't much fear in the hearts of cops for their crimes. Of course, the message here only applies to sex crimes, so the testilying and perp killing cop takes no message from this sentence. Those aren't deplorable crimes like this.

Savitt goes on to note that the media attacks against him and Pena for defending against the charges reflect a fundamentally misguided grasp of the system.

One additional yet crucial point must be made. Critics, including in The News editorial, attacked the “cold-blooded, meticulously executed assault” on the victim during her cross-examination. It condemned the defendant’s lack of “courage to take the witness stand.” It also took me to task for “outrageously” cross-examining the victim in order to have her “admit” that she was “not fit to testify credibly” because she was in fear for her life.

Is this recent manifestation of politically inspired “frontier justice” so powerful that a venerable newspaper can suggest that a criminal defendant must forfeit his due process and trial protections under the Fifth and Sixth amendments to our Constitution?

These protections guarantee a fair trial with the assistance of counsel and the right to confront witnesses. They are intended to ensure that the burden of proving all elements of an offense beyond a reasonable doubt never shifts from the prosecution to the defendant.

Is there a constitutional carveout for rape charges involving a police officer?

He was doing so well until the last line. What Savitt writes is not merely true, but true for all defendants. Just as the most hated defendant deserves his rights under our Constitution, so too does a police officer. But it's not a cop problem, and trying to frame it as a cop problem is where the argument falls flat.

Ironically, many readers here will have greater sympathy for the non-cop defendant whose rights to counsel and a zealous defense are attacked. That's wrong. Every defendant, cop or not, is entitled to the full protection of the Constitution, and no defendant or lawyer should be attacked for availing themselves of these rights. Cops are just as entitled, but no more so, than anyone else.

It's hard to say what the sentence should have been here. Savitt suggests that ten years would have been proper and proportionate. Others could argue, reasonably, that 15, even 20, might be sufficient to deter others, cop or not, from committing forcible sexual assault. It seems clear that 75 years sends the message that a sexual predator would do well to murder his victim, since there isn't much worse that could happen.

This is the worst possible message a court could send. This is the message sent by imposing a 75 year sentence on Michael Pena. No matter how angry someone may be about the crime he committed, and no matter how much Pena deserves that anger, it is the responsibility of the court to impose a sentence based on reason and proportionality. This sentence was way too harsh, even though Pena was a cop.

Us and Them in Pictures

SHG — 2012-05-10T11:11:00Z

Once again, Carlos Miller proves that a picture is worth a thousand words, and that our need for images of the reality on the streets of police encounters cannot be understated. Two cops are on trial for their beating to death a homeless man, Kelly Thomas, the subject of an earlier post.

Carlos now provides the video of Thomas' killing. While I could embed it here, I prefer that you watch it at Carlos' blog, as he provides a substantial amount of additional information about the case and, frankly, deserves your interest more than I do. He's done all the heavy lifting, and I just ride his coattails.

But Carlos includes a few pictures in addition to the video, which provide as stark a juxtaposition as I've ever seen. Here's the picture of us.

Here's the picture of them.

I have nothing more to add.

H/T Radley Balko

© 2012 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.

And Now, For A Commercial Break

SHG — 2012-05-10T09:48:00Z

Given the amount of time I spend thinking about legal marketing and its impact on the legal profession, I couldn't help but watch in amazement/amusement the debate between Lexblog honcho Kevin O'Keefe and Tom Watson, Senior Vice President at Wisconsin Lawyers Mutual Insurance Company.

Watson wrote about a cautionary post about the perils of social media.

Use social networking sites to better serve your clients and help create new business. But do not lose sight of your ethical obligations in accessing, or protecting a client from, information disclosed electronically.

He also gave a long list of horribles, and short list of benefits. This made Kevin start to sweat profusely, and prompted this response.

I don’t know whether Watson uses Twitter, Facebook, or a blog to build and nurture relationships or enhance his reputation as a thought leader on malpractice insurance statewide or nationwide. He may not fully appreciate how social media works nor the benefits it brings to the public an lawyers.

I understand that he is just doing his job as a legal malpractice carrier and that he is citing other authorities for much of what he writes. But my gut tells me articles like this on the perils of social media do far more harm than good to lawyers and the public we serve.

Things get uglier in the comments, where Watson argues that he's saying nothing more than be cautious, and Kevin, in an interesting rejoinder, questions whether anybody has ever been disciplined for something they did on social media.

This is a dangerous question in the abstract, but because there have certainly been disciplinary cases involving social media (even if Kevin doesn't know about them), but more importantly, the sine qua non of ethics isn't whether someone was nailed for a violation of a disciplinary rule, and the suggestion that anything that doesn't land you in lawyer-jail is cool is, frankly, dangerous and foolish. Some of us prefer to be ethical. Some of us prefer to do whatever serves our self-interest, provided we don't get caught. What's your preference?

While the dispute didn't strike me as too, well, serious, it apparently compelled Kevin to write another post questioning whether the use of all social media is subject to ethics rules. This is where an otherwise mundane disagreement becomes interesting.

The simple answer is that everything a lawyer does is subject to ethics rules. Being a lawyer is a 24/7 gig, and no one should be confused about the obligation to be ethical after hours. But that's not really the issue Kevin's raising. Rather, the issue is whether all use of social media is advertising, and therefore subject to the rules for attorney advertising.

To answer this question, it helps to know the definition of commercial speech, which is subject to intermediate rather than strict scrutiny, and can therefore be regulated provided the government has pretty good reason and it's regulations don't go too far over the edge.

Kevin kicks the question over to my buddy Josh King, who holds the curiously divergent positions of general counsel of Avvo and VP of business development. In a video interview with Colin O'Keefe (Kevin's son and a great kid) done at Avvocating 2012 (see my keynote address that went undelivered), Josh defines commercial speech (and thus speech subject to regulation as attorney advertising) as speech which "proposed a commercial transaction."

Well, yeah. That's accurate as far as one definition is concerned, but it's not the end of the story, both because defining a word by using the word in the definition never works, and more importantly, that's not the end of the definition. Caselaw also defines commercial speech as that which informs the public of the quality, nature and availability of good and services. That means much of the writing by lawyers in social media is certainly commercial speech. All of it is not.

This is where Kevin gets himself into trouble, with an unfortunate attempt at analogy:

Is fashion attorney Staci Riordan, perhaps the fastest woman associate to make equity partner at Fox Rothschild, a century old national law firm, advertising with her heavy use of Facebook and Twitter?

Riordan, like many shrewd lawyers who truly understand relationships and reputation aren’t built by having separate online identities, uses Twitter and Facebook to network and engage with business leaders, other lawyers, civic leaders, and friends. Riordan knows networking to nurture relationships and establish trust with others so as to build a strong word of mouth reputation is the stuff life is made of for lawyers looking to grow their business and become better lawyers.

Is Riordan’s activity on Twitter and Facebook advertising? How about her Fashion Law Blog?

For some reason, I suspect Staci's making partner had more to do with her abilities as a lawyer than her blog. Why Kevin would choose to diminish Staci's substantial professional accomplishments in order to promote her blogginess, wrapped up in such absurdly pretentious language that it makes me wince, is that it serves his interest, the promotion of blogging. Staci deserves better.

But the problem is that if Staci's blog was directed to the purposes Kevin attributes, it would likely be commercial speech rather than substantive speech. If her purpose is to grow business rather than illuminate issues in the law, then it's about the quality and nature of services for sale. Sure, Kevin tosses in at the end "better lawyer," but nothing else he's written suggests any connection whatsoever. It plays better if you try not to think too hard.

So what's the point? It's hard to imagine how anyone without a direct financial interest would have a problem with Tom Watson's admonitions to be cautious and ethical in social media. We should be ethical in everything we do, and this shouldn't be controversial. Similarly, Josh's argument, that we ought to push the limits of ethics to test how far we can take speech to reap financial rewards is troubling. It seems like the Gordon Gecko version of ethics in the age of greed.

As for Kevin's point, perhaps he's right that there are financial benefits to engaging in social media, though I've never found it to be true, or that the trade-offs come close to making it worth your time if your purpose is to develop business. There may be that one in a thousand lawyer who's gotten enough business off the internet to make it worthwhile, and I don't begrudge her if that's the case.

Yet, denying that social media doesn't hold the potential, if not the likelihood, of being a vast cesspool of unethical conduct by lawyers is fundamentally wrong. It is not a truth-free zone. It is not absolved from ethical considerations because it's web 2.0. It is not an opportunity to put on those pink hotpants and strut down the boulevard.

You want to use social media to generate business? Heed Tom Watson.

And now we return to our regularly scheduled programming.

But For Video: Bronx Edition

SHG — 2012-05-09T11:20:00Z

The only place in New York City that gives Bed-Sty a run for its money on the Police Department's stop and frisk initiative is The Bronx. You know the place, Yankee Stadium. The Grand Concourse. Blacks and Hispanics. Drugs.

And like any good police initiative that just happens to focus on people whose skin color is a shade or two darker than white folks, we can rest easy knowing that New York's Finest are there to protect and serve, and they would never, NEVER, make stuff up about busting some kid on the street. Except when there's video.

Via NY1:

Officers swore they witnessed bags of crack and marijuana being carried by [Jateik] Reed. In the criminal complaint one officer is quoted as saying, "He observed the defendant to have on his person, in his hand, one (1) clear plastic bag containing a white, rock-like substance, which he threw to the ground. In his hand, two (2) clear plastic bags, each containing a dried green leafy substance with a distinctive odor, in public view."

Surveillance video from a nearby building shows Reed walking with his hands out, no drugs in view. John Eterno, a retired New York City Police Department captain, says it appears Reed shouldn't have been stopped.

But the officers swore. They swore. Doesn't that mean anything?

And if the lie isn't reason enough to watch the video, the gratuitous kick at the end is icing on the cake. There's nothing like a fun little kick of a handcuffed perp on the ground to cap off a busy day, right? And see all the other officers rush to stop the kicking cop? Neither did I.

The allegations against Jateik Reed are about as ordinary as they come. It would hardly be surprising if they have a change-the-name form on the computer in ECAB to save time. Naturally, street level drug dealers walk around the Bronx flashing packages of drugs in their hands to everyone in sight. At least that's what cops say, and prosecutors and judges believe.

Yet again, a lie is exposed, and a defendant walks free, because a video showed that the police lied. The cops are on paid vacation while the matter is sorted out, since lies by police officers require massive, lengthy investigation, although lies by civilians are dealt with swiftly and harshly. But then, civilians don't protect us at night, and therefore aren't deserving of our respect and admiration. And the benefit of the doubt.

And without the video? Take a guess at what would have happened to Jateik Reed. And the fair maiden officer who booted him would have put in for permanent disability at full pension for the injury to her toe. it's a very dangerous job, police officer.