Simple Justice

Who's The Boss?

SHG — Sat, 11 Feb 2012 10:36:00 GMT

It seems as if people have been arguing over whether the Supreme Court should televise its proceedings forever. While my thought is that there would only be twelve people outside of some law profs who would want to watch, outside of the few cases that are heavily promoted as being "important" every year, what's the big deal?

The worst that can happen is people realize how boring our job is. An hour of oral argument in a regulatory case and no one will ever watch again. The best that can happen is that while the public may not have the slightest clue what's happening, they will be comforted by knowing that they were allowed to see it from the comfort of their den while wearing their snuggy and sipping hot chocolate with those little baby marshmallows. No harm, except to fashion.

But as Justice Souter proclaimed that if cameras come into the Supreme Court, it will be over his dead body, not everybody takes such a laissez-faire attitude. While the arguments against cameras in the courtroom are decidedly different when it comes to a trial court, concerns about their impact on the Supreme Court are hardly as severe. For the most part, there isn't much rigor to the arguments against televising oral argument before the Supremes, and most commentators think they court should allow it.

Still, the court resists, and it appears that Congress intends to force the issue. At Concurring Opinions, Dave Hoffman raises some interesting questions.

It’s been widely reported that SB.1945, if passed, would compel the Supreme Court to televise its proceedings. Here’s the relevant bill text:

‘The Supreme Court shall permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court.”

Two questions.

(1) This seems badly drafted to me. What does “television coverage” mean for the purposes of this bill? Does it mean that the camera gets to swivel between Justices and the attorney? That it can face the wall? But more interestingly,

(2) What if the Supreme Court just says no?

Oh my, is it possible that Congress could enact a poorly written law? Clearly, the language sucks. It's replete with questions, including Dave's but extending to any number of limitations, prohibitions, conditions, not to mention what the heck they mean by due process rights (does that preclude violations of other rights?). But poorly written laws are nothing new, and if Congress can craft incomprehensible criminal laws, why should something as innocuous as this be above reproach?

The more interesting question, as Dave notes, is the second. Imagine Souter lying across the threshold refusing to move. Will the Sergeant at Arms with a cadre of pages storm the court? They both hard armed guards, but neither has an army.

On the other hand, as Tony Mauro points out in a comment at SCOTUSBlog, it's not as if Congress doesn't pass laws affecting the workings of the Supreme Court.

But if the Court does not act, I don’t see why Congress could not. Acts of Congress dictate the size and quorum of the Court (28 U.S.C. 1) and when the Court’s session should begin (28 U.S.C. 2), so something as unremarkable as camera access seems to be a “lesser included” kind of regulation of the Court.

Then again, do cameras in the courtroom fall into the "housekeeping" measures with which Congress becomes involved? If they were so unremarkable, why are so many people remarking?

Given the politics surrounding the judicial branch of government, with presidential candidates arguing that judges should be hauled before Congress to explain unpopular decisions, and perhaps be drawn and quartered if their answers don't meet the approval of the 27 people who comprise a particular (oh, let's call it the 6th just for fun) congressional district in Georgia, Would this be a great time to open the door for increased influence from a co-equal branch of government to start telling another how to run its house?

The flip side of so many thinking there's really not much harm in allowing cameras in the Supreme Court is that it's similarly not all that important to do so either. Sure, there's merit to the argument that public confidence is enhanced by transparency, but few of the public who desires to spend their time watching will have a sufficient appreciation of what they're watching for it to be meaningful.

It's largely form over substance, as the level of nuanced argument in the matters that come before the court are often well beyond the public's more simplistic understanding of the law. While this is one of the arguments against cameras, that the public's inability to appreciate what they're watching will serve to create controversy based on ignorance, that's nothing new. Heck, read the lawprofs' commentary about the Jones decision and ignorance abounds. Why shouldn't the public get its piece of the pie?

Yet, few lawyers want the politicians poking their fingers into court decisions, particularly those of us who tend to be on the unpopular side of the Constitution, as opposed to those who believe every defendant should rot in hell and whatever worked for the Puritans ought to form our legal morality in perpetuity.

Given the potential for grave mischief if Congress starts tinkering with the inner workings of the Supreme Court, now seems to be a particularly bad time, both for Congress to enact a law and for the rest of us, who might otherwise not care a great deal about cameras in the Supreme Court, to let that opinion blind us to the camel's nose peeking under the tent.

Cameras in the courtroom may be no big deal. Congress in the courtroom is another matter.

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CyberBullying: "We know it when we see it"

SHG — Fri, 10 Feb 2012 11:31:00 GMT

In a lengthy post at PrawfsBlawg, University of Florida lawprof Lyrissa Lidsky takes on some issues of "CyberOverbreadth" with the flavor of the month crime, cyberbullying. To the greatest extent I've yet seen on the part of an academic, she tries to wind her way through the politically correct position of being against it while simultaneously considering is First Amendment implications.

With regard to criminal law, a meaningful response to cyberbullying--one that furthers the objectives of deterrence and punishment of wrongful behavior--would be precise and specific in defining the targeted conduct. A meaningful response would carefully navigate the shoals of the First Amendment's protection of speech, acknowledging that some terrible behavior committed through speech must be curtailed through educating, socializing, and stigmatizing perpetrators rather than criminalizing and censoring their speech.

Sure, it's not much, but it's a whole lot more than other scholars have acknowledged.

Any attempt to use criminal law to address the social phenomenon should probably start with the jurisprudential question of which aspects of cyberbullying are best addressed by criminal law, which are best addressed by other bodies of law, and which are best left to non-legal control. Once that question is answered, criminalization of cyberbullying should proceed by identifying the various forms cyberbullying can take and then researching the specific First Amendment constraints, if any, on criminalizing that form of behavior or speech. This approach should lead legislators to criminalize only particularly problematic forms of narrowly defined cyberbullying, such as . [This gaping hole is in Lidsky's post. Why she left the particularly problematic forms unsaid may never be known.]

While introducing narrow legislation of this sort may not be as satisfying as criminalizing "adolescent cruelty," it is far more likely to withstand constitutional scrutiny and become a meaningful tool to combat serious harms.

While we're still left scratching our head at what exactly is meant by cyberbullying, no one as yet being capable of defining it or willing to go out on a limb to try, we at least obtain some clue from the description of these laws as "criminalizing 'adolescent cruelty'," the laws against which must become a "meaningful tool to combat serious harms."

It goes without saying that all of this is a backlash to a number of child suicides attributed to bullying. Whether that's accurate, or at least complete, is hardly clear, but the mythology has already grown to epic proportions, much like the child-predator claims of wilding back during the Central Park Jogger case, only to learn years later that it was all nonsense. The lesson of criminalize first, and get the facts second, has been well-learned, even in the Academy.

Proposals to criminalize cyberbullying often seem to proceed from the notion that we will know it when we see it. In fact, most of us probably will: we all recognize the social problem of cyberbullying, defined as engaging in electronic communication that transgresses social norms and inflicts emotional distress on its targets. But criminal law cannot be used to punish every social transgression, especially when many of those transgressions are committed through speech, a substantial portion of which may be protected by the First Amendment.

While less than a complete recognition of the emptiness of the definition, this is a decent start. Proponents of anti-bullying laws, and most notably the ones who have adopted the religion of CyberBullying, seek to use criminal laws to punish "every social transgression" that "inflicts emotional distress on its targets." They desire a happy Utopia, where no child is ever made to feel badly, and they mean to do it by the imposition of criminal punishment.

While Lidsky falls short of recognizing that hurt feelings shouldn't be criminalize because it neither provides a basis for a crime nor a rational way to define criminal conduct, at least she recognizes that it impinges on speech in ways that would gut First Amendment protections. Free speech has become the first casualty in the war against hurt feelings in the Academy, and Lidsky's stance puts her at odds with many of her colleagues.

Yet, to the extent she's staked out a rational and doctrinally sound position, she backtracks in her response to comments.

For example, one relevant (and terrible) difference between cyberbullying and offline bullying is that it creates a permanent record of the victim's abuse that carries into her adult life. It cuts off the victim's hope that she can ever escape her tormentors. This is something First Amendment doctrines should account for, perhaps by creating some sort of "take-down" remedy. However, existing doctrine stands in the way of implimenting such a "take-down" and must be rethought. We could also broaden existing remedies for invasion of privacy or intentional infliction to better account for this type of harm. But remedies such as these have to be carried out at the level of individual doctrines.

I suppose it makes me an incrementalist, but I don't agree that we need to "rethink First Amendment doctrine as applied to cyberspace." Instead, we need to rethink various First Amendment doctrines as applied to certain behaviors or speech abuses that occur within cyberspace, including, but not limited to, cyberbullying.

While acknowledging that attempts at criminalizing cyberbullying suffer from overbreadth now, it appears that she supports the creation of exceptions on an ad hoc basis to fix the roadblocks the First Amendment creates in reaching Nirvana. Notably, a "take-down" remedy of the sort that's gained traction in the European Union under its "right to be forgotten" regime is a favorite.

To the extent any law profs have offered anything to suggest that we not create a slew of laws to turn children into criminals because someone's feelings were hurt, Lidsky's tepid support of the First Amendment is about as good as it gets. Unfortunately, it's not much, and appears to collapse as soon as anyone makes her feel bad about position. Ironic, no?

Tiny Crimes by the Thousands

SHG — Fri, 10 Feb 2012 10:14:00 GMT

While the big crimes tend to cause the greatest outrage, and hence get the most attention, it's the little ones, the ones we consider inconsequential, that have the big numbers. Thousand, tens of thousands, of petty offenses are prosecuted yearly, although it's not quite fair to call them prosecuted as they usually result in a quick guilty and check changing hands.

Big numbers and lots of money, but mostly in the aggregate. For the individual, it's hardly inexpensive, but still far less expensive than fighting and winning. And provided it's not something that will send a guy to jail or ruin his life, most people are happy to get it over with and be gone. Tiny crime. Thousands of them. Like loitering.

From WXYZ in Detroit, Robert McGowan was driving home when he was stopped by a cop.

That officer wrote him up for a decaying license plate. But it wasn’t until the next morning that Robert looked closer at that ticket, and saw two words that made him panic: prostitution and narcotics.

"I was driving down the street," McGowan said.

"I wasn’t sitting with my feet hanging out the window, I wasn’t having fun skipping up the sidewalk. I was driving home.

Turns out the cop wrote Robert up for loitering in a place known for prostitution and narcotics. It’s a misdemeanor charge with a penalty of up to $1000 and 93 days in jail. McGowan says he got the ticket because he was profiled.

"He pulled me over because I don’t look like I belong here after dark and my car is not a very pretty car," he said.

Unlike most, McGowan wasn't willing to take the hit for loitering for the purpose of prostitution and narcotics, particularly since his reason for being there was to mentor a high school student. He wasn't that type of guy, and wasn't going to take the path of least resistance. His ticket was dismissed.

Now, he's doing something about it.

Southfield lawyer Daniel Romano represents McGowan, Tonon and about 20 others from both city and suburb hit with the same type of violation.

"What does that mean? I don’t know. I don’t think the Detroit police officers know what it means. It means what they want it to mean at the time."

Romano says the law is vaguely written and allows police to abuse it.

They've commenced a class action to put a stop to the cops writing up bogus tickets. Naturally, the Detroit Police Chief knows nothing about it.

Detroit Police Chief Ralph Godbee declined to talk about these cases. Instead he released a statement that says, in part: “…over the course of a year thousands of individuals are arrested by officers of the Detroit Police Department and many more individuals receive citations…we are not in a position…to respond to claims that cases were mishandled.”

If the Police Department isn't in a position to respond, who is? The courts, as reflected in the settlement of a New York class action suit, via the Daily News.

The city has agreed to pay $15 million to 22,000 New Yorkers — many of them homeless panhandlers — who were arrested for loitering using laws that were struck down decades ago.

“Thousands of New Yorkers were arrested and forced to defend themselves in court, and even serve time in jail, for completely legal behavior,” said Katherine Rosenfeld, representing the plaintiffs in the class action suit.

Averaged, that comes to $682 per person, hardly enough to justify the rigors of a federal lawsuit on an individual basis, but added together provides a pretty decent smack. A $15 million smack. Not too shabby. In New York, the problem with loitering tickets is a bit different than Detroit.

The state’s anti-loitering law, passed in 1964, was ruled unconstitutional three times by state and federal courts in the 1980s and 1990s.

But the NYPD continued arresting beggars or hustlers under the statute for more than two decades. Most of those arrested lacked the resources to fight the charges.

“After courts struck down these loitering laws as unconstitutional, the NYPD should never have charged a single person under them,” Rosenfeld said.

If there's something familiar about the cops using a law long since dumped, it may be because of the enormous number of pot busts in New York, long since decriminalized on a theoretical level, with the caveat against "public display." The cops magic trick is to pull it out of its hiding place into the light, then charge for it being there. And rather than fight this lunacy, defendants cop out quickly and go home to wash off the stink.

When a defendant's back is to the wall, charged with a serious offense he didn't commit, there is little choice but to fight. When the charge is tiny, and resolvable by a fine or a day of community service with no criminal record, or when the defendant is indigent and incapable of putting up a fight, discretion is usually the better part of valor. Fighting is hard. Fighting is expensive. Tiny charges aren't fought, at least on the individual level.

Like the phone company tossing in an inexplicable nickel on the bill, it's not worth the time it takes to make it through voicemail to get to a real person. But do it a few million times a month, and it comes to real money. For the cops, it shows they're doing their job, and earning their budget, when they put up tons of tickets written. It all relies on people not finding it worth their while to fight back.

Hopefully, the Detroit class action will find the same success as Katherine Rosenfeld's case in New York. Hopefully, the cost of the settlement will have enough of an impact to compel the police to stop writing bogus tickets for non-existent crimes. While it's death by a thousand tiny crimes, it's still wrong. Maybe Detroit Police Chief Ralph Godbee will come to find it worth his while to know whether his cops are liars, falsely accusing people of non-existent crimes to up their numbers.

H/T Spencer Neal at the Oregon Law Center

No Way Out

SHG — Thu, 09 Feb 2012 10:12:00 GMT

The jury agreed. William Barnes, who had already served his time for the attempted murder of Police Officer Walter Barclay in 1966, wasn't liable for his death 40 years later. But as one might expect, it wasn't going to be that easy.

When Barnes was picked up on the murder charge in 2007, he had a cellphone and car keys on him. Among his parole conditions was the requirement that he have his parole officer's permission for a cellphone and a car, and apparently he didn't. A violation! A technical one, since he had done nothing wrong with them, nor was there any particular reason why they were part of his conditions, but they were nonetheless.

The violation resulted in a recommendation of six months additional time. He did his six months, but with the murder charge pending, he was held. After the acquittal, he came again before the parole board, but this time the assistant who lost his murder case kindly explained in a letter that he was the sort who should never see the street again. And he was held. And he remains in prison still.

Eventually, he sought habeas relief from the federal court, where the case was sent to Magistrate Judge Timothy Rice. In his written report, he recommended that the habe be granted.

Barnes has committed no new crime in more than thirty years, and has been cited for no misconduct while incarcerated in nearly twenty years. His only infraction in the past three decades stemmed from his possession of car keys and a cell phone in 2007 without the permission of his parole agent. For that technical parole violation, Barnes has now served almost four-and-one-half years in prison -- nearly three times the maximum term suggested by state law, see 37 Pa. Code § 75.4 (presumptive sentence range for violation of special parole condition is between three and eighteen months), and more than eight times the term imposed by the Board. Moreover, the Board has precluded him from beginning the lengthy process of seeking reparole for a fifth time until October 2012.

But then, this wasn't about car keys and a cell phone. It seems almost silly to mention it, given that everyone knew that was just the excuse to hold him. No, he was held because he murdered Police Officer William Barclay.

Bear in mind that Barnes wasn't an innocent man either. There was no question that he shot Barclay and tried to murder him. Barclay, crippled from the shooting,

lived a fitful existence of limited work, injuries from car accidents, heavy smoking, hepatitis, depression, rage that rendered him unwilling to cooperate with physical therapists, a possible stroke in 2005 and more hurdles than any man should bear. He died in 2007. The cause was listed as a urinary tract infection.

Barnes had nothing particularly to commend him. He never saved a cat from a tree or a child from a burning building. He never found religion or dedicated his life to good causes. There is a question as to whether he ever really felt remorse for what he did, though he eventually said he did. The best that can be said of Barnes is that, after a few escape attempts, he served his time. And he was a human being. But then so was Barclay.

The prosecutor who lost the murder trial sent a letter to the parole board arguing against Barnes' release:

He stated he “came to know William Barnes quite well” while preparing for the murder trial, and claimed Barnes “remains the same vile criminal that he was” decades ago, “despite his outward appearance of a frail, elderly person.” Id. The ADA falsely asserted Barnes “has yet to serve the full sentence” he received in the 1960s for shooting Officer Barclay, and demanded that Barnes “should spend the rest of his life in prison.” Id. at 239-40. In closing, the ADA attached an autopsy photograph of Officer Barclay’s legs.

If ever there was a person to test the mettle of the system, William Barnes was the one. And Magistrate Judge Rice made his recommendation.

After careful consideration, I respectfully recommend Barnes’ petition be GRANTED, and Barnes be released from custody immediately. A local prosecutor portrays Barnes as a murderer meriting life in prison, but a jury of Barnes’ peers acquitted Barnes of murder. The Board’s repeated denial of reparole strongly suggests that, like the local prosecutor, the Board seeks nonetheless to punish Barnes for that crime. If due process means anything, it means that the state may not punish an individual for conduct of which he has been acquitted.

Even the worst of us, and make no mistake that William Barnes is one of the worst of us, is entitled to due process. He's now 75 years old and, as of this writing, in a cell. The State of Pennsylvania seeks to keep him there for a murder for which he was acquitted because, now that passions are again stirred at the shooting of Barclay, they have decided that he just doesn't deserve to be free.

The parties will have an opportunity to file objections to the report and recommendation, which will go before the District Court Judge for decision, where he can accept, reject or modify the recommendation. Mag. Rice concluded:

The actions of the Board, the DOC (through the prison superintendent), and the ADA have forced Barnes to endure a shocking pattern of arbitrary and irrational expectations, requirements, and parole denials over the past two years.

Immediate release is the only remedy that will fully redress the constitutional violation at hand and ensure Barnes is subjected to no further arbitrariness or vindictiveness. I recommend ordering him paroled forthwith.

Forthwith is a funny thing in this proceeding, as will be a while before the report and recommendation reach the court and conclusion. If the State drags things out long enough, and the court allows it, maybe Barnes will die before any decision was reached. Even if he is eventually released upon this "arbitrary and irrational" state conduct, he will have spent years in prison that, for someone else, would never have happened. And for the State, that's the point, to keep William Barnes in prison for as long as possible, and hopefully until he dies.

H/T Max Kennerly

Life Plus Cancer in Old Dominion

SHG — Wed, 08 Feb 2012 11:05:00 GMT

Jeralyn Merritt at TalkLeft came up with this charming sentence, for those who thought a life sentence wasn't harsh enough. For Bennett Barbour, convicted of rape in 1978, it applied.

Investigators knocked on Bennett S. Barbour's door on Valentine's Day 1978 and arrested him on a charge of raping a College of William and Mary student at gunpoint a week earlier.

The slight, 22-year-old handyman from rural Charles City County had been married just a few months when he was taken into custody, the romantic greeting card and box of candy for his pregnant wife left unopened.

Today, Barbour is a divorced, 56-year-old convicted sex offender who has bone cancer, and who desperately wants to clear his name. "I ended up losing my wife," he said. "I told them I didn't do it, but they railroaded me and locked me up."

Now, the state has proof that he is innocent.

Today, the judge in his case and his defense lawyer are both dead. The prosecutor can't remember him, and the trial transcript is long lost. But Barbour is now conclusively proven innocent of the rape by DNA, which the prosecution has known for 18 months. Why it took so long to reach closure isn't clear, but everyone now concedes that he's innocent.

Then again, no one was all that convinced at the time he was convicted.

Arrest records show Barbour was 5 feet 6 inches tall and weighed 115 pounds at the time. The victim was 5 feet 8 and weighed 135 pounds, Barbour said.

Also, a March 24, 1978, forensic lab report obtained by Barbour's current lawyers shows that even the relatively crude blood typing performed on seminal fluid left by the assailant strongly suggested that Barbour was not the attacker. The seminal fluid was left by someone who is Type A, as was the victim. Barbour is Type B.

And "negro" hairs taken from the crime scene were said to be "not consistent" with a sample from Barbour, the report said.

Still, the jury found Barbour guilty, siding with the identification made by the 19-year-old victim who, according to a probation office report, identified him by police mug shots and in a lineup.

And if that's not enough, consider:

Barbour had a solid alibi; he did not match the suspect's description; he has brittle bone disease; and he did not have a gun, said Enright.

"But (the victim's) identification of him still wins that contest."

Of course, eyewitness IDs are easily challenged through the usual means. No reason to worry there, according to our Supreme Court.

Fortunately, Barbour wasn't sitting in a cell the whole time, having received a ten year sentence and been released on his first parole date. Even the cops who investigated him and the probation officer who wrote him up suggested that he might not be guilty, and that he posed no threat to anyone.

Yet Barbour not only did his time, but spent the intervening years as a sex offender, a convicted rapist, losing his family and then his health to bone cancer. On the flip side, a rapist remained at liberty to enjoy the life that Barbour lost.

So now the world knows that Bennett Barbour is no rapist. Maybe he'll get some restitution for his troubles. Maybe not. Nothing will give him back the life he would have had but for that knock on the door on Valentine's Day, 1978, and some will take comfort in the fact that he was proven innocent in 2012, 34 years later. Great system.

H/T Rob Robertson

Begging For Attention

SHG — Wed, 08 Feb 2012 10:46:00 GMT

Like everyone with a blawg, I get slammed regularly with spam comments and trackbacks, often to the tune of thousands overnight, requiring me to spend significant time banning and deleting comments written in variations of English, often amusing, selling everything from Gordon Ramsey's cookbooks to shoes with red soles, tons of Uggs and marital aids of all sizes. It's part of the blawger's glamorous life.

Every now and again, the spam comes from a lawyer. The other day, it was from the Mesriani Law Group, ridiculously illiterate and blatant. Apparently, their spammer was very busy, and Eric Mayer got it as well. If it's particularly annoying spam, I send it off to Ken at Popehat, because I know he likes to screw with lawyer spammers. Before I send it off, I sometimes check out the scoundrel sending it, just to make sure it isn't something really special.

Yesterday, it was special. The spam came in from someone who clearly worked hard at creating his internet persona, using the website NY Criminal Lawyer. The comment was literate and tailored to the content of my post, but clearly and shamelessly self-promotional. Nothing new there. The website, however, grabbed my attention.

The "Ranked #1" language changes from screen to screen, with "Ranked #1 of 842 Criminal Defense Firms in New York City." Click on it and it takes you to Avvo, where you find he's an Avvo "Pro" advertiser. The lawyer's name is Arkady Bukh, admitted to practice in 2003. His work experience, based on what he posted about himself on Avvo is somewhat limited:

Attorney at eVeritas Inc	2005–2010
Contract Attorney at 1st New York Private Money	2004–2008

His top three awards on Avvo are:

Top Listed Lawyer	LexisNexis	2011
Listed	Martindale-Hubbell	2009

Listed	Martindale-Hubbell	2007

I've never heard of him.

But what stood out was his claim about being "Ranked #1" on Avvo. That's quite a claim, particularly since I was unaware that Avvo ranked lawyers in that fashion. So I asked my pal and Avvo's general counsel, Josh King about it. He responded:

Yeah, that’s a weird claim – kinda like saying he’s the #1 lawyer in Google. While the Avvo Rating is our evaluation of a lawyer’s background and the likelihood that lawyer will provide competent legal representation, we also try to stress that it’s only a starting point. And when it comes to whoever is at the top of our organic listings, it may not even be the guy with the highest Avvo Rating. Our organic results are driven by a second algorithm that takes into account Avvo Rating, client reviews and percentage concentration in the given practice area.

Not quite a responsive response, so I pushed it a bit farther by asking Josh whether he's "lying" and whether Avvo was okay with it. Take 2:

I wouldn’t call it lying, as he does have our top rating, and he does appear, at least some of the time, in the #1 slot for NY criminal defense searches. But it is somewhat misleading as we don’t do “rankings.”

Very diplomatic response, because, you know, he could have clicked on Avvo one time, saw himself at the top of the list and assume that meant he was ranked #1 out of all the lawyers, and all the criminal lawyers, in New York. And then he just mistaken built his website and marketing scheme around this one small error. It could happen, right?

While there is certainly a question of how this lawyer got a "top" Avvo rating with such awards as being listed in Martindale-Hubbell and his illustrious career doing contract work, that goes to the efficacy of Avvo. But what struck me as particularly troubling wasn't to find another lawyer promoting himself with garbage claims, as the boulevard is lousy with lawyers in hotpants strutting their stuff.

What troubled me was that Avvo would allow itself to be used as the core of deceptive advertising. Josh told me that he sent Arkady Bukh informing him that "a concern had been raised" and "explained that we don't 'rank' anybody." Something tells me that an explanation wasn't the problem.

I would think that the enterprises that claim legitimacy in rating lawyers (not to mention doctors and dentists these days) would want to protect their legitimacy from abuse and deceptive use. I would think this would be hugely important, because if they become captive to schemes and scams, they're no better than the lawyers who abuse them.

While I may not be much of a fan of lawyer marketing, it's not my place to challenge honest, accurate and legitimate self-promotion. This doesn't cut it. This is the crap that disgraces lawyers, deceives the public and races headlong into the gutter. And it takes Avvo with it for the ride. If I was Avvo, I would not be pleased and would not bend over backward to explain it away.

And before someone accuses me of beating up on some poor schmuck who is just trying to make a living by creating a fake internet persona, all bully-like, let's be clear on one thing. I didn't go searching the internet for lawyers strutting around in hotpants. This lawyer rammed it down my throat by trying to use SJ as part of his marketing scheme and begging for attention. He just got more of it than he bargained for.

If You Let Me Play...

SHG — Tue, 07 Feb 2012 11:10:00 GMT

Howard Wasserman posted at PrawfsBlawg about the importance of sports for women, one purpose of which was to teach a critical lesson, as expressed by basketball coach Katie Meier:

She particularly emphasized something I never thought of--that sports teach you how to fail and how to come back from failure, an ability we can use in all aspects of our lives.

Having made this point a few times using the example of fencing, I left Howard a comment, covering the pedagogy of self-esteem and the shame of his not having come to this epiphany sooner. If only lawprofs, who function as occasional classroom teachers, would stray from the comfort of their inner sanctums, maybe they would learn new things before another class of students leaves their classroom untaught.

My comment was deleted. Perhaps it wasn't deemed sufficiently pleasant or complimentary, or perhaps it was too off-topic for the new comment policy at PrawfsBlawg. In any event, it's gone. I wrote another comment, which is there as I type but may not remain much longer, about how sad I feel by their hurtful deletion. I'm just kidding.

I am not kidding, however, when I sit on the sidelines and watch the lawprofs engage in a symposium on the subject of Legal Education's Response to the Economic Realities Facing the Profession being held at Legal Ethics Forum. Many readers can't be bothered with academics, whether because they are horribly boring, prolix and tedious, their views bear so little connection to reality as to be worthless or they are so concerned with being civil and respectful that they are incapable of making a point. I completely understand.

However, whether we want to admit it or not, lawprofs influence what happens in our profession, despite every reason to ignore them. The imprimatur of scholarship carries a certain panache, making them taller, more handsome and decidedly more consequential when it comes to their pontifications. Trench lawyers are a dime a dozen, so common that we step over them to get closer to the lawprofs lest we miss their utterance. Read a newspaper article on some breaking crime or case, and chances are you will see a lawprof quoted about a critical issue, even if he hasn't gone within a mile of the courthouse in decades.

To the extent a non-scholarly voice gets heard, there is usually a title attached to distinguish the thought leader from the trench lawyer. Even if its only "former prosecutor," or better still, have a law review article that's been downloaded more than 3 times from SSRN, the academic equivalent of sexy (I was going to write "hung like a racehorse, but my refusal to use neutral pronouns already reveals my political incorrectness).

Yes, I know that I beat this horse to death, but this is my profession. Our profession. And I refuse to leave it in the hands of often-brilliant but brutally naive and inexperienced scholars. Where are the lawyers? Lawprofs have seized this issue, largely because David Segal's series of articles in the New York Times have nurpled their purple, making it the newest, coolest topic for academic metacognitive consideration. Yet they only want to talk amongst themselves.

There is a lot to discuss here. These are important issue, ranging from the efficacy of law school to the future of lawyering, and it's being done by a bunch of people who have a horse in the race, yet don't actually do it on the back end. Lawprofs don't make a living representing clients. Lawprofs don't face judges in court and wonder why nobody ever taught them that neither life nor law is fair. Lawprofs went to the finest schools, and spent a few hours working for a judge or Biglaw before turning their attention to the cloistered life of a scholar. Who are these people to decide how our profession should be handled?

Eating barbecue ribs with Kevin O'Keefe the other night (paid for by Dave Wodnicki of LexisNexis, rather than in satisfaction of Kevin's lost bet on the Packers, I might add), I asked him how we can break through the wall around the lawprofs so that all the "stakeholders" in the blawgosphere will engage with one another, including the lawprofs who remain isolated, only interested in the applause of their own. Kevin, who has been at this blawging game far longer than me, told me it will come.

I used to think that too. I don't anymore. The lawprofs aren't interested in the thoughts of lesser intellects, and can't bear our vulgar ways and unpleasant rhetoric. I get that, though from my seat, they look like a bunch of teacups unable to take disagreement without crying and running home to mommy. They vehemently disagree with me. They tell me that adore disagreement, only on their terms of civility and respect. In other words, they may condescend to acknowledge the existence of trench lawyers, but only if we play by their rules.

But they're talking about our profession, and their talk seems to matter a whole lot more than ours. This is unacceptable, and if trench lawyers don't stop worrying about their marketing, their hand-wringing over the latest harm done by the commonest enemies, and start confronting the fact that this discussion is happening without us, we're going to wake up to a profession that bears little resemblance to anything with which we're familiar and instead find ourselves in a scholar's dream.

This is happening now. Do you really want to sit on the sidelines while the game of your life is being played?

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The View of Parsimony From the Bench

SHG — Tue, 07 Feb 2012 10:07:00 GMT

The requirement of 18 USC §3553(a) is pretty straightforward, that "a sentence sufficient, but not greater than necessary" to fulfill it's purpose. The law isn't saying what that sentence must be. Only that it not be greater than necessary, which leaves just barely enough room for the judge to park a Mack truck. Still, that's not enough for some.

Via Doug Berman, the 7th Circuit vacated and remanded the sentencing of Richie Pennington:

Richie Pennington pleaded guilty to selling a firearm to a felon, distributing ecstasy, and possessing a firearm in furtherance of a drug-trafficking crime. The government recommended a 68-month sentence, the bottom of the applicable sentencing-guidelines range. Pennington argued that 64 months was enough. The judge rejected Pennington’s argument because the four-month difference between the sentencing recommendations was so little. He added that although the sentencing guidelines are not binding, “judges are told that [they] are to be followed.” The judge imposed the 68-month sentence suggested by the government. Pennington appeals, challenging the procedure the judge used to reach that decision.

We vacate the sentence and remand for resentencing. The judge appears to have rejected Pennington’s request for a modest below-guidelines sentence simply because it was modest and below the guidelines. There may have been other reasons why he did so, but as it stands, we cannot be sure the judge gave adequate consideration to Pennington’s argument.

What's four months between friends? Well, the judge and Pennington probably weren't really friends, but Judge Richard Mills of the Central District of Illinois nonetheless shrugged off the difference. The Circuit, by opinion of Judge Sykes, held:

By characterizing the difference between the recommended sentences as “de minimis,” the judge implicitly accepted that 64 months was sufficient to serve the purposes of sentencing. If so, the parsimony principle would ordinarily require the more lenient sentence.

It may come as a surprise to many that parsimony, the quality of stinginess or economy, is supposed to guide a judge in the imposition of a sentence. The judge is to impose no more time than absolutely necessary to fulfill the legitimate sentencing purposes of §3553(a)(2).

One of the most inexplicable aspects of sentencing is the basis upon which a judge concludes that one sentence is proper but another isn't. Why 17 years and not 16 years, 9 months? There doesn't seem to be much to commend one over another, and I have yet to hear a judge explain how some of the oddball sentences imposed make sense when a similar sentence, whether a year less or month less, is inadequate to serve its purpose.

But here, Judge Mills blew it. He could easily have said that the 68 month sentence, as dictated by the Guidelines, was the minimum necessary to satisfy the demands of the law, and everybody would have walked away. Instead, he did the one thing no judge can do. He shrugged.

The question is whether four months on the back end of a five plus year sentence makes a difference. Clearly, Mills' answer from the comfort of his bench was "not so much." From the comfort of your desk chair, you may well agree. From the comfort of a prison cell, those four months, 120 days, may seem a bit more significant, more real. If only because that's 120 mornings you don't wake up in your own bed.

What's revealed by Judge Mills' sentence isn't so much evil and callousness, though it wouldn't be wrong to conclude that, but the detachment of those who make decisions about other people's lives from the real consequences of their rulings. They aren't sentencing people, but defendants. Defendants are interchangeable cogs in the grinding wheels of justice. Rule and roll.

Run enough defendants through a courtroom and they all begin to look alike. As much as we, the lawyers standing next to the guys in orange (or stripes in some backwoods jurisdictions), like to think our pleas for a lesser sentence are moving and heartfelt, the rhetoric may sound like the teacher in a Charlie Brown special, blah, blah, blah. It's not that it's all been said before, though that's often the case, but that breaking through the wall of detachment, behind which is the judge's humanity, isn't easy.

Obviously, this isn't true of all judge or all lawyers. And not every defendant is reduced to mere chattel in every courtroom. But routineness of it all, the banality of shrugging off four months of a person's life, is far too common, even with judges who sincerely believe that they agonize over every sentence imposed.

Rarely does a judge speak such cavalier words as Judge Mills did in sentencing Richie Pennington. Most know better than to say "whatever," and assert that they have fully considered all arguments and concluded that a specifics number of months or years, and no more nor less, is required. While there may be a reason to appeal, it's not because the judge told the defendant from the bench that four months of his life isn't worth the effort.

It's not that they don't think that, or that they have no magical powers to determine that 64 months is insufficient, but 68 months is exactly what parsimony demands. Judges have no magic. And, of course, it's their job to sentence, and so they must arrive at a number to impose no matter that they are no more capable of a reasoned conclusion that 68 months is good, while 67 months won't do.

For those judges who can appreciate that a month, a day, in a human being's life matters, and who truly agonize over every day of a sentence they impose, I applaud you. And for those who shrug, whether openly or behind your wall of detachment where a month or a year lost to a person's life is just a number, it's time to retire.

And for any lawyer who doesn't do everything in his power to make his client into a living, breathing person, a spouse, a parent, a person, you have failed to play your role in the parsimony clause, and failed as the last person standing between the defendant and the grinding wheels of the system. Just because you get to go back to your office after the sentencing doesn't mean a day in your client's life doesn't matter.

A Right Without Remedy

SHG — Mon, 06 Feb 2012 11:41:00 GMT

No one will ever feel entirely comfortable that the real story behind the killing of teenager Ramarley Graham is known. There was no video of the shooting. Graham is dead. The officer who shot him while he was purportedly flushing something, presumably marijuana, down the toilet isn't likely to tell a story of his mistaken reaction.

There was only one other person with knowledge. From the New York Times:

The officer confronted the man, Ramarley Graham, who was in the bathroom, possibly trying to flush marijuana down the toilet. A moment later, a shot rang out, killing the teenager.

While narcotics officers had followed Mr. Graham to the apartment on East 229th Street in Wakefield thinking he was armed, no gun was found, making the grandmother, Patricia Hartley, 58, a crucial witness.

What makes this alarming is that Patricia Hartley wasn't treated as a witness, but as the enemy of the police.

After Mr. Graham was killed, Ms. Hartley was taken to the 47th Precinct station house on Laconia Avenue and held for seven hours, said Carlton Berkley, a friend of the family’s who said he had retired from the police force as a detective in the 30th Precinct, in Upper Manhattan. Mr. Berkley added that Ms. Hartley was forced to give a statement about what happened.

“She gave it against her will,” Mr. Berkley said. “She didn’t want to speak to the police.”

It's unclear what this means. Not that she didn't want to be interrogated, but that she was forced to give a statement. Was she held in a room and subject to the Reed Technique? Was the told she wouldn't be released unless she answered questions? Was she subject to psychological torture, or physical compulsion?

The official response is that the claim that she was questioned against her will is untrue, and Mrs. Hartley was cooperative.

Steven Reed, a spokesman for the Bronx district attorney, Robert T. Johnson, said Ms. Hartley “made no complaint” to an assistant district attorney who was at the station house.

Had she made such a complaint, it would have been relayed to the police, Mr. Reed said.

“If the nature of Mrs. Hartley’s complaint is true, it would be highly insensitive,” Mr. Reed said. “Nobody should be forced to give a statement, let alone someone who had just lost a grandson in the way that Mrs. Hartley did.”

There's a bit too much wiggle in this statement for comfort. It doesn't say that the ADA was in the room as Ms. Hartley was giving her statement, such that she could have expressed her complaint to him. No, just that he was in the station house. That smacks of an artful denial.

More importantly, what could have possible taken seven hours? The incident probably took no more than a few minutes, and even if she was asked to repeat it a few dozen times, she would be on her way in an hour or two. It's pretty hard to imagine that a grandmother who just lost her grandson chose to spend seven hours in the precinct with the cops who killed him.

And then there is the objective evidence that Ms. Hartley was being held incognito and against her will:

Mr. Berkley said he went to the station house after being contacted by Mr. Graham’s father, Franclot Graham, whom he had known for many years. He added that he waited two hours without being able to speak to her.

A colleague of his called Assemblyman Eric A. Stevenson of the Bronx, who also came to the precinct house and asked a man who he believed was an assistant district attorney if Ms. Hartley was being held against her will. The man disappeared, Mr. Stevenson said, and minutes later Ms. Hartley emerged, crying.

Mr. Stevenson said Ms. Hartley’s lawyer, Jeffrey Emdin, had also been unable to speak to her.

But now for the problem. So what?

The remedy for a coerced statement is suppression, but Ms. Hartley isn't being charged with anything, and suppression has no applicability to her situation. There is the violation of her civil rights, which, assuming it can get past a motion to dismiss based on qualified immunity for engaging in necessary police investigation, might produce a damage award of $27 in five or six years and after thousands of hours of time dedicated to the case. That would mean the attorney for Ms. Hartley would be entitled to a third, less expenses.

The police officer who shot and killed Graham, 30-year-old Richard Haste, is the subject of an investigation.

Officer Haste and a supervisor, Sgt. Scott Morris, 36, who was in a stairwell between the first and second floors when the shot was fired, have been stripped of their guns and badges and placed on nonenforcement duty.

That the supervisor, Sgt. Morris, has been stripped of gun and shield is curious, since he wasn't there when the shots were fired, and suggests that something went very wrong immediately after the killing.

As for Patricia Hartley, she lost a grandson, she was held for seven hours in the precinct, she was forced to answer questions against her will and there really isn't anything to do about it. No one questions her right not to be interrogated, but a right without a remedy isn't much of a right at all.

H/T Radley Balko

Making Scalia's Job Hard

SHG — Mon, 06 Feb 2012 11:09:00 GMT

Some wags suggest that there are no epiphanies to be had in New Orleans, where the American Bar Association is dealing with the hard questions of confronting the legal system these days, like whether red is still the color for power ties. Yet Associate Justice Antonin Scalia came to a shocking realization at the meet-up, announcing that he doesn't enjoy hearing criminal cases nearly as much as we enjoy having him hear them.

From Doug Berman, via the AP:

The federal courts have become increasingly flooded with "nickel and dime" criminal cases that are better off resolved in state courts, U.S. Supreme Court Justice Antonin Scalia said Saturday.
Scalia told an American Bar Association meeting in New Orleans that he's worried that the nation's highest court is becoming a "court of criminal appeals."

That this worries him worries me. That this just occurred to him worries me as well, but it's understandable that someone who sits as one of nine comprising an entire branch of government might be a little out of touch with what's happening on the street. I mean, he's busy and probably doesn't even twit.

What is curious, though, is Scalia's description of the criminal cases flooding the courts as "nickel and dime," which is exactly what I think too. Great minds think alike, right? And "nickel and dime" criminal cases, the ones that clog up the court from dealing with important civil issues, put people in prison for decades. Given that they're nickel and dime-y, what I suspect Justice Scalia is really trying to say is that a year, maybe two in some of the really bad cases, is more than enough.

Scalia said civil dockets in some federal jurisdictions are lagging behind because criminal cases take precedence. He attributed the trend to lawmakers enacting new criminal statutes and bogging down the federal courts with "nickel and dime criminal cases that didn't used to be there."

"This stuff is just pouring into the federal courts. That's not what the federal courts were set up for," he said.

Now it's pretty darn likely that Justice Scalia knows that these cases don't spontaneously arise out of nowhere, but are being investigated, indicted and prosecuted by somebody who brings them in federal courts. While it's possible that it's civil lawyers bent on making sure the Supreme don't screw up their sweet deal, it's more likely that it has something to do with the Department of Justice and it's local minions, the United States attorneys for the various districts. Defendants do not rush though the doors of federal courthouses demanding to be prosecuted. Oh, no.

Then, of course, there's the obvious problem, that every new elected official is required to offer a new criminal law, much like a gang initiation, to prove his mettle. That doesn't mean the United States Attorneys have to use every law enacted, or duplicated on every level of government possible, or keep every courtroom filled to capacity, but then they might insult their local congressperson who went and sponsored a perfectly good crime and expects the United States Attorney to use it (Maricopa County excepted).

All of this is a massive insult to the defendants who are trotted through the federal system. Scalia is quite right, that the federal courts have no business handling the flotsam and jetsam of crime, and yet they do. As they have increasingly for the past 25 years. And there isn't a single defendant who asked that it be that way.

There is plenty of blame to spread around, not the least of which includes the expansive reading of the commerce clause which, with minor exceptions, has come to mirror Chaos Theory. That Congress has enacted 3000, 4000, maybe 5000 federal crimes, plus the additional 30,000+ regulatory offences that no one knows anything about, is part of the problem, but the vast majority of federal crimes are brought under a handful of laws, most notably drug conspiracies and weapons.

These are the bread and butter of state crimes, and it was killing the feds that they couldn't get any headlines out of these crimes. If they were happening, someone holding federal office had to be the hero to rid society of these plagues. Otherwise, they looked inconsequential, bad things happening and them sitting in their chamber talking about, oh, boring federal government stuff. No front page news there.

The most insulting aspect of Scalia's epiphany isn't that the people who are subject to this irresponsible federal criminalization and prosecution cycle are going away for decades for "nickel and dime" crimes, but that his biggest concern is that it takes too much time and energy of the Supreme Court that could otherwise be used for cases they would rather hear.

"Believe me, it is not hard, once you've got it though your head that you are not a court of errors, that it is not the job of the United States Supreme Court to correct mistakes," he said.

Therein lies a significant separation between our aspirations for the Supreme Court and its own, limited, perspective. Ultimately, the criminal justice system exists not as a burden to Nine Justices, but as a means of providing a safe and orderly environment while preserving the rights of the people. The Constitution doesn't limit the jurisdiction of the Supreme Court to concern itself only with circuit conflicts. The Constitution doesn't preclude the justices from correcting error.

Having paved the way for Congress to enact laws enabling federal prosecutors to spend their days handling "nickel and dime" cases that send people to prison for decades, Scalia can't disavow his responsibility for both the creation of this fiasco and to deal with its product, the error and failings that are below the dignity of our important federal judiciary. You cause these prosecutions to happen in your courts? Now deal with it.

And if it's too much of a burden, too hard to handle, then clean it up. Admit the you screwed up, that the commerce clause wasn't meant to allow the federal criminalization of every wrong possible. When the feds bring cases unworthy of your oak paneled courtrooms, toss them until the United States Attorney gets the message, that "nickel and dime" cases won't be allowed to clog up your marble hallways anymore. You have the power to fix this mess. Use it.

As a humorous aside, Doug Berman, no doubt tongue in cheek, writes that this story "reveals that I am not the only one who thinks the federal criminal docket has gotten way too big." It's a pretty big club.

Squeezing Every Last Penny Out of Amy

SHG — Sun, 05 Feb 2012 11:41:00 GMT

The story of Amy has been beaten to death, both here and by her advocates, to the point where even the Department of Justice has said "enough." Amy, who suffered horribly as the child in the "Misty" child porn series, deserves compensation for what was done to her. No doubt about it. But the government has come to recognize that every person who ever viewed a Misty video shouldn't have millions in restitution imposed as a matter of law.

But what about poor Amy, says James Marsh? Marsh, as it happens, is her lawyer. So he's gone to Change.org to start a petition, the content of which is worth reproducing in full:

During the past two years, victims of child pornography (represented by the Marsh Law Firm and pioneering attorneys Paul G. Cassell and Carol L. Hepburn ) have been seeking restitution in federal courts throughout the country.

Using a long forgotten passage in the Violence Against Women Act championed by then-Senator Joe Biden in 1994, child sex abuse victims are asking federal judges to award the mandatory restitution guaranteed by this law.

Unfortunately, the Justice Department has abandoned victims of child pornography on appeal by advancing a legal standard which the courts consider unworkable. The Justice Department's position is effectively preventing hundreds of child victims from receiving any money from the tens of thousands of child molesters and pedophiles who collect and trade child sex abuse images.

In October, the Justice Department filed a Supreme Court brief opposing child exploitation victims. Last month, the Justice Department asked the Sixth Circuit Court of Appeals to nullify a court-ordered million dollar award to a child sex abuse victim, arguing that the legal standard which resulted in the award is too easy.

Why is the Justice Department arguing for something which the courts of appeal say is unworkable and un-provable, while victims of child exploitation are left with nothing?

Now, just last week, the Fifth Circuit Court of Appeals--at the Justice Department's urging--decided to reconsider a landmark decision in favor of victims of child pornography. The Justice Department has one more chance to do the right thing and support victims of child exploitation.

Please tell President Obama's political appointee to the Department of Justice Criminal Division, Lanny A. Breuer, to side with the victim in In re: Amy Unknown in the Fifth Circuit.

When Justice Department attorneys refused to even sit with Amy at last year's oral argument before the Fifth Circuit Court of Appeals in New Orleans, Chief Judge Edith Jones proclaimed:

"What I don't understand is why the government has switched sides. They were on Amy's side in the trial court, were they not? I'm not sure how they can switch sides now and say that the statute doesn't entitle her to relief. That seems ver--if not duplicitous--very strange to me. And it's also in derogation of the obvious intent of that provision of the statute."

Amy and child victims like her need your help. Hundreds of victims are effectively shut-out of the federal courts by the Justice Department's wrongheaded policy.

Almost 20 years ago, then-Senator Joe Biden promised child victims that they would receive full restitution from criminals convicted of child exploitation. Ironically, Vice President Biden's own Justice Department is failing to live up to his vision in the Violence Against Women's Act.

You can help awaken the Justice Department lawyers in Washington with just a few clicks. Amy thanks everyone for their continued support. You can make a difference in her fight for justice!

Rarely has such a flagrant attempt to manipulate public opinion with outrageously deceptive allegations and arguments been attempted. And the comments to the petition reflect this pandering to ignorance.

Why People Are Signing
I do hope that DOJ will support the right of child victims to restitution.

Because they should get restitution. The children had gone through enough.

I HATE CHILD ABUSERS!!

Children need us to protect them!

This seems to be the most important piece of legislation to do the right thing, the victim.

While there's little chance that these comments will persuade anyone who has even a basic grasp of the issues and problems, who could possibly be so disgusting and disgraceful as to stand up against those who contend that they do it all for the children.

This attempt to pervert the system isn't merely ethically and intellectually outrageous, but yet another attempt to abuse Amy for the benefit of lawyers and an agenda. Must Amy be perpetually used as a pawn? I'm with Lanny Breuer on this one, enough is enough.

But more importantly, the emptiness of the victims rights advocates could not be more flagrant than this disgraceful attempt to manipulate public opinion. Will Marsh and his ilk not be satisfied until they squeeze every last penny for their client, no matter how many lies they need to tell in the process? Because it's not like Marsh works for free.

H/T Anna Durbin

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Andy McCarthy Blames the Lawyer Left

SHG — Sun, 05 Feb 2012 11:14:00 GMT

Worms turn, it seems, even for guys who never met a prosecution they didn't adore. All it took was Conrad Black's book and some serious rhetorical effort by National Review pundit, and former SDNY assistant Andrew McCarthy to come to the realization that he could still love the bomb while completely ignoring Lord Black's message.

At the New Criterion, Andy works overtime to explain:

As Conrad Black has painfully learned, the tune in our Manichean legal theater is called by the progressive vanguard—the media, the academy, and, in particular, the Lawyer Left. A Matter of Principle is Black’s often gripping memoir of his nightmarish trek through America’s justice system and business governance culture—a system that can work grave injustice, a culture that is all government and no business. The nightmare endures: Lord Black of Crossharbour, international newspaper mogul, British peer, distinguished presidential biographer, and for most of his life a lover of the United States, sits for a few more months in a federal prison—convicted, he compellingly argues, of crimes he did not commit.

Finally, a defendant he could love as much as Scooter Libby and Whittacker Chambers. Never, never in my wildest imagination, would I expect to read these words from Andy's fingers:

Black was convicted on three counts of this hopelessly vague offense. Tacked on for good measure was a bizarre obstruction of justice charge, involving his removal to his home of thirteen boxes out of a company office from which he’d been evicted. Inspectors and lawyers had had free reign to copy all relevant documents for three years, Black had permission from the acting company president to remove the materials, he was unaware there was any American investigation to obstruct, he was unaware of the contents of the boxes, and he had dutifully surrendered over 100,000 documents as demanded. The jury, however, was doubtless influenced by a prosecutor’s repeated false implication that the removal violated a Canadian court order.

When it comes to anyone else, you wouldn't be able to find such pejorative language to describe the prosecution within a mile of Andy's writing. If anything, his efforts would be put toward demanding more severe punishment, and a few more counts in the indictment, for some foreigner ignoring our laws and undermining our ability to put him in his place. But not for Conrad Black.

The jury acquitted the defendants on the fraud trumpeted by Breeden and echoed by the Justice Department. Yet the government had an escape hatch: the ever-elastic theory of denying “honest services.” Originally concocted to deal with the peculiar circumstance of bribery—e.g., a judge who takes money to fix a case, depriving the public of his expected probity—this doctrine was stretched by corporate governance activists to criminalize alleged ethical lapses. Though neither intending nor effecting a fraud, an official can find himself in the soup over loose allegations of self-dealing at the company’s apparent expense.

How delicious to read Andy call "honest services" fraud a "concocted" crime, while ripping "corporate governance activists" (and by "activists," he means lefties) for the ills they impose on corporate society by raising ridiculous expectations that put defendants in "the soup over loose allegations," Man, can you not help but love this guy?

Except Conrad Black wasn't all about apologizing for the overbearing manner which which this nefarious legal system oppresses corporate CEOs. Andy touches on it to the extent it serves his politics:

We need not, at this point, trot out the inevitable allusions to Kafka, Job’s tribulations, or Tom Wolfe’s Bonfire of the Vanities. True, in shoring up the indomitable spirit that fairly leaps off every page, Black refreshed himself in their lessons, just as he did in the deep wells of his Catholic faith and the unstinting constancy of his family. Black, however, coins his own neologism to describe the dystopia he makes of modern America: a “prosecutocracy.”

But Lord Black had long since fleshed out the point in a National Post op-ed about his prison education at the hands of the American prosecutocracy:

The Mafiosi, the Colombian drug dealers, (including a senator with whom I had a special greeting as a fellow member of a parliamentary upper house), the American drug dealers, high and low, black, white, and Hispanic; the alleged swindlers, hackers, pornographers, credit card fraudsters, bank robbers, and even an accomplished airplane thief; the rehabilitated and unregenerate, the innocent and the guilty, and in almost all cases the grossly over-sentenced, streamed in steadily for hours, to make their farewells.

It had been an interesting experience, from which I developed a much greater practical knowledge than I had ever had before of those who had drawn a short straw from the system; of the realities of street level American race relations; of the pathology of incorrigible criminals; and of the wasted opportunities for the reintegration of many of these people into society. I saw at close range the failure of the U.S. War on Drugs, with absurd sentences, (including 20 years for marijuana offences, although 42% of Americans have used marijuana and it is the greatest cash crop in California.) A trillion dollars have been spent, a million easily replaceable small fry are in prison, and the targeted substances are more available and of better quality than ever, while producing countries such as Colombia and Mexico are in a state of civil war.

I had seen at close range the injustice of sentences one hundred times more severe for crack cocaine than for powder cocaine, a straight act of discrimination against African-Americans, that even the first black president and attorney general have only ameliorated with tepid support for a measure, still being debated, to reduce the disparity of sentence from 100 to one to 18 to one.

You won't find anything kind about those "bad" criminals in Andy's review. They don't even exist in his screed against the system, which couldn't convict enough, or sentence enough, until it came to Conrad Black. It's not that I find anything with which I disagree with Andy this time. In fact, he's my frigging hero, and I admire enormously the artfulness of his language as he shreds the prosecutocracy. He's quite the writer, even if he never managed to connect his "lawyer left" phrase to any cognizable thought, leaving it dangling gratuitously.

The problem is that Lord Conrad Black's epiphany was about the system as it worked its injustice on all who were so unfortunate as to come into its clutches, while Andy McCarthy's fury and spittle is limited to the one fine man against whom this horrible system worked its magic. That would be the same system that he only criticizes for being insufficiently harsh when the target doesn't fall into his good-guy pigeonhole.

I'm awfully proud of Andy McCarthy for coming to the realization that the legal system, the one in which he happily participated as an Assistant United States Attorney, the one which gave him the tools and weapons to convict for conspiracies where the proof was every bit as "concocted" as here, the one he applauds as a conservative pundit, the one he criticizes because it won't impose the ultimate punishment on those he sees as sufficiently craven, is imperfect. If only that applied beyond the wealthy and powerful, to the rest of us.

Conrad Black understood how the system, the prosecutocracy, harmed every defendant. Andy McCarthy only sees how it harms corporate giants, and the rest can rot in hell. But at least Andy got a chance to blame the Lawyer Left, and that made reading Black's book worth the effort.

Free Carlos Miller

SHG — Sat, 04 Feb 2012 10:44:00 GMT

His blog, Photography is not a Crime, has stood at the forefront of the movement to record the conduct of police in public, revealing both the dirty underbelly of real "police work" and undermining the long history of misconduct and abuse that was never provable and therefore officially denied. Carlos Miller chronicled it all.

And now he's been busted. Again.

From the Miami New Times:

Local journalist Carlos Miller has a blog called Photography is Not a Crime. Apparently Miami-Dade police officers are not avid readers.

County cops arrested Miller on Tuesday night as he was filming the Fuzz forcibly evacuating Occupy Miami protesters from Government Center downtown. But he says the police are the ones who messed up.

Seriously, they messed up. Not merely because Carlos, of all photographers, knows his rights, but because Carlos is the national posterboy for the right to record "the fuzz."

Aside: When is the last time anyone called the cops "the fuzz"? It brings back fond memories. Good times.

The problem isn't just that they arrested Carlos for doing what he is entitled to do. Nothing new there,

But Miller says the cops really screwed up when they allegedly deleted his footage. Miami Dade Police declined to comment.

"If you're going to arrest me for doing nothing, fair enough, that's your stupidity," Miller says. "But to delete my images... that shows that they were afraid of my footage getting out. That's totally illegal."

It's easy enough to claim that he was doing something to "obstruct" the police. Any allegation will do, plus they can always jazz it up with some officer safety references and put on the scared police officer face when they tell the judge about their split second decisions and how they do it for the children. But deleting his images can't be explained. Seize him. Seize the camera. That's one thing. Deleting the content of the camera takes the officers allegations into an entirely different arena.

Ironically, it's not as if Carlos had captured terrible police abuse.

Miller says that the police were actually doing an admirable job clearing Government Center without violence.

Maybe he could have sold back his video to the fuzz as a training film for the right way to rid polite society of ramshackle tents. But whatever he might have done with the images, he can't do it now. Because they deleted them. Big mistake.

As test cases go, this is about as perfect an opportunity as they come. If you had to pick a person to do it, Carlos Miller would be the guy. If you had to pick a situation where even Judge Posner wouldn't have felt just awful about making the cops look unpleasant, this was it. When the police pinched Carlos Miller and deleted his images, they really messed up. Really.

No doubt Carlos has long since been released from the holding cell, showered and gotten a good night's sleep, so he doesn't need any of us to raise a ruckus in support of his release. Still, the words are worth saying, if not for Carlos, then for every other photographer, videographer, or citizen with a cellphone camera.

Free Carlos Miller.

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Clouds Illusions, Volume 3

SHG — Sat, 04 Feb 2012 10:40:00 GMT

"The stuff of nightmares," is how Lee Pacchia at Bloomberg Law described it. Data stolen. The problem isn't that we lawyers don't realize it can happen. Of course it can. But so too can Timmy, the drug-addled offspring of your second cousin Ned, who you gave the summer job in your office, steal a file, even if he's unfamiliar with the standard alphabet.

The solution is that we don't believe it's going to happen. We don't believe that someone with the extraordinary technical prowess to hack us doesn't have better things to hack. We refuse to believe it.

The reason we refuse to believe it is that we want to use the internet, as if there is really any option anymore, and there isn't a damn thing we can do about it. So we block it from our minds, deny it as a real possibility and plow on.

It must have come as a shock to Neal Puckett, then, when he found out that Anonymous made the announcement.

Just a few minutes ago, Anonymous announced they had stolen 2.6 gigabytes of email belonging to the law firm Puckett Faraj. Neal Puckett represents Staff Sergeant Frank Wuterich, who was accused of leading the group of Marines who killed 24 unarmed Iraqi civilians in the town of Haditha in November, 2005—what later became known as the Haditha Massacre. Last month, Wuterich struck a plea deal where he'll be demoted from Staff Sergeant to Private, but will serve no prison time.

A good deal for Sgt. Wuterich took a turn south for everyone involved. While the data has yet to hit the streets, chances are awfully good that it's not going to make anyone look like a hero. Did Puckett fail to protect his client's confidential communications? Well, sure. That they are now in the hands of some people he doesn't know, but he knows aren't covered by his malpractice carrier, clearly something went very wrong.

But can anyone blame Puckett? While the details are unknown, chances are that there was absolutely nothing he could have done to protect the data. If the FBI and Scotland Yard can't keep their chats private, what exactly do you think you can do better?

Whether it's a disgruntled employee at a cloud computing company, or within your own shop, or the Chinese or Anonymous, or the federal government, or someone as yet unknown, we add this to the list of things that can go very wrong with our new and wondrous digital world. There are precautions that we normally take, extreme and expensive precautions that, should anything to wrong, others will inform us we should take. But are there any precautions that will provide perfect security?

The flip side is that we never had perfect security with physical files either. The same unhappy folks in offices today were in offices before, capable of accessing files and destroying them, or perhaps handing them off to someone else like Pentagon Papers. Whether it's Timmy the Addict or that nice gal who empties the wastebaskets, we didn't stay awake at night thinking about whether we left a file on the desk or a drawer unlocked.

In Lee Pacchia's interview of Michael Riley, who might consider investing in an iron, the trade-off is couched in terms of money, the cost of "bullet-proof" security versus the potential for liability. As yet, there isn't a clear standard of liability, how much security is needed to provide reasonable care. Is it a decent password or do we need armed digital guards? And no matter what security a lawyer uses, you can bet your career that it will be second-guessed should there be a breach, as with Neal Pluckett, that spills your clients dirty laundry all over the internet.

Despite my exceptional knowledge of digital security protocols, which stops just short of passwords longer than 3 characters, I take comfort in acknowledging that it's enough to keep a luddite out but ridiculously inadequate should Anonymous or the FBI decide that they want to know my highest score on Angry Birds. In other words, I've come to grips with the fact that there are some out there who can hack the crap out of me should that be there intention, and there isn't a thing I can do about it.

Instead, I've developed a trick that defeats the problem. I don't put anything to substance into an email. I don't allow my clients to put anything of substance into an email. I realize this is heresy, since this is the way all communications are required to happen in this digital age, and that we live in a time when all information is spread from computer to computer, but I never quite trusted it.

For those of you who have been inside a courtroom, you may see codgers use something that's flat and yellow, with bluish lines going east to west. This is called a "yellow pad," and used to be an accepted tool of the trade. I now call it a yPad to make it sound more modern. I use it to write on. With a pen, which is (I'm told) a device that should never touch the shiny front of an iPad, not to be confused with a yPad. When I get up from the table in the courtroom, I take my yPad with me. Always, unless I'm using it to play an amusing trick on a young prosecutor, but that's the subject of another post.

When I'm done using a page on my yPad, it is never thrown into a garbage can. It's taken with me back to my office, where it is ceremoniously destroyed. It is not reduced to a computer file, to be held in perpetuity just in case someone, someday, demands to know whether I wrote something down. Things that must be remembered are reduced to another writing, in my personal hand using a script that would make a nun faint, and placed within a manilla folder, within a locked cabinet. Even if someone breaks in, they would have to be able to decipher my handwriting to know what was on the page. No one has ever broken that code.

This may not work for everyone.

While the means by which our privileged communications, work product, and client confidences can be obtained by others are multiplying, and from long distances and by people we don't know and might never imagine would be interested, there likely isn't a whole lot we can do about it. For every security guru who tells us it's a problem, someone will ask the important question, so what's the solution? They have tons of answers, but nothing that solves the problem. There is no "bullet-proof" answer.

It's foolish to delude yourself into thinking it can't happen. Of course it can. It's similarly foolish to throw a ton of money into putting up brick walls that some nefarious computer culprit can go over, under or around if they're so inclined, and expect that more people will have the ability to do so every day. It's a whole lot easier, and more effective, to avoid creating content that reveals confidences or can be used to harm a client. It may not be entirely avoidable, but we can certainly keep it to the barest minimum. And really awful handwriting is something to which every lawyer should aspire. It has its virtue.

Rachel Rodgers' Neighborhood

SHG — Fri, 03 Feb 2012 11:42:00 GMT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Appellate Truth

SHG — Fri, 03 Feb 2012 10:41:00 GMT

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

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

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

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

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

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

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

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

The Appellate Division’s decision 6 months later:

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

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

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

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

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

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

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

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

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

The Whiteboard Chronicles

SHG — Thu, 02 Feb 2012 12:16:00 GMT

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

-- Principal John Friske

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

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

* * *

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

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

But two lawprofs?

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

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

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

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

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

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

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

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

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

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

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

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

Harris County Sheriff: A Sensitive Sadist?

SHG — Thu, 02 Feb 2012 11:20:00 GMT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Which lead ineluctably to one conclusion:

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

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