Simple Justice

You're The Ginchiest (and other lame linkbait)

SHG — Tue, 21 May 2013 12:47:00 GMT

Ah, the ego validation that blawgers so crave. The email just arrived, informing me that SJ has been selected as one of the Top 30 Law Blogs of 2013! Woo hoo!!! I want to thank the Academy...oh, wait. It's not from the Academy. Not the Pulitzers. Not even the ABA Journal.

It's from Best Degree Programs dot org, that deeply meaningful website that sends out the weekly inane infographics because they love us blawgers so very much and want to help us. Just please, please, include the backlink. But the infographic scam can only work so many times before the flawgers figure out that it's really not a matter of deep appreciation, but just your basic backlink scam.

And so, every once in a while, they put together a "Best of" list. It's brilliant, as it plays on the foremost issue in the minds of so many in the blawgosphere: Do they love me? Plus, they give you a really cool badge.

Impressive, right? And you have to work really hard to eliminate the code that installs the backlink no matter how often you delete it, because there is nothing more important to being the best than good backlink code.

Then comes the real question, how many blawgers will bite on this scam and post their deep appreciation for the important recognition on their blawgs? Ego much? Validation? Patsy?

Besides Lat at ATL (who fell for it once but was inexplicably left off the list this time) and lawprofs, who are honored by an award given by Busy Bee Nursery School, who will bite? I have some suspicions, and will check tomorrow to see which "winners" are humbled by the great honor.

But since making fun of such a transparent ego play isn't enough to fill me up, it's time for dessert.

While In San Francisco to speak at the monthly San Francisco LMA luncheon on Website trends (with Barbara Abulafia, Keker & Van Nest, Jeff Yerkey, Right Hat and Per Casey, Tenrec), my colleague Keith Wewe, another couple and I were hosted by Elizabeth Lampert for dinner at Twenty-Five Lusk.

[I have no clue who all these LMA attendee types are, but they must be impressive in the legal marketing world since the post's writer, Deborah McMurray, felt them worthy of some butt-kissing mention.]

Twenty-Five Lusk features a dessert called "Textures and Chaos" that lists only four ingredients on the menu, but clearly had several more (as you can see by the photo below). This photo can't begin to communicate the plated disaster that was proudly delivered to our table.

Perhaps, in a desire to elevate the participation among his team (and create a sense of inclusion), the chef tried crowd-sourcing to create this dessert - where each member of the kitchen staff added a favorite ingredient - and, voila! - Textures and Chaos was born. The result was so poorly conceived and executed that I was inspired to write about it. It's not only seriously ugly, but the tastes were as cacophonous as 5 p.m. rush hour in New York.

Why do I ask you to endure this nonsense? Stay with me. There's a payoff. I promise.

What can lawyers learn from this?

Not to order dessert at Lusk?

Firm strategy should start back in the kitchen-equivalent (not at the dinner table) and be a thoughtful consideration of audiences, markets, geographic reach, competition, threats and opportunities that are just cresting over the horizon. This positioning stake in the ground informs what practice and industry teams could do, and what individual lawyers on those teams can do. When well-intentioned, but overly independent lawyers go off and create their own Internet presence with no regard for their law firm, they miss the most important advantage available to them - leveraging the investments (strategy, time, reputation and money) made by the mother ship.

When many lawyers in a firm do their own thing without regard for the firm and practice group strategies, the result won't be far away from "Textures and Chaos."

True 'nuff. So instead of a result like "Textures and Chaos," you can shoot for the focused, cohesive if untasty result achieved by Best Degree Programs.

Bon appétit!

© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.

A Lot of Misjudgment of Suspicion

SHG — Tue, 21 May 2013 10:39:00 GMT

Without a doubt, Judge Shira Scheindlin has a way with understatement. During closing arguments in Floyd v. New York, the stop and frisk trial finishing up in the Southern District, the court said the obvious aloud.

Observing that only about 12 percent of police stops resulted in an arrest or summons, Judge Scheindlin, who is hearing the case without a jury, focused her remarks on Monday on the other 88 percent of stops, in which the police did not find evidence of criminality after a stop. She characterized that as “a high error rate” and remarked to a lawyer representing the city, “You reasonably suspect something and you’re wrong 90 percent of the time.”

“That is a lot of misjudgment of suspicion,” Judge Scheindlin said, suggesting officers were wrongly interpreting innocent behavior as suspicious.

Yes. Yes it is. To the untrained eye, this might have been a foregone conclusion, Mayor Bloomberg and Police Commissioner's adoration of the tactic notwithstanding. And yet, the City remains adamant that the massive failure of a 90% error rate in what they contend to be reasonable suspicion is protected under the ancient legal doctrine of stercus accidit.

The problem is that despite the fact that the individuals stopped were almost invariably black or Hispanic, there has been no evidence introduced of racial slurs during the course of the stops, which the City argues reflects the absence of profiling or racial animus. Judge Scheindlin wasn't entirely persuaded.

In the absence of overt racial slurs, Judge Scheindlin repeatedly asked a city lawyer, would it be appropriate to infer that a police encounter was racially motivated if an officer stopped a black man with no apparent basis? “If the court were to conclude there was no fair basis for the stop, but the stop was made, there has to be a reason,” Judge Scheindlin said, suggesting it might be a fair inference to find that it was a race-based stop.

No, no, no, the City responded. Never, because that would be wrong.

Much of the statistical testimony revolved around a single, stark fact: black and Hispanic people represent an overwhelming majority of people stopped, more than 85 percent most years. The city has long argued that this reflects crime patterns. City lawyers claim that the percentage of stops involving black individuals either mirrors, or is lower than, the percentage of violent crimes committed by black suspects.

After all, is it the fault of New York Police Officers that blacks are more "criminally"? Except, of course, for the fact that 90% of the time the black and Hispanic young men stopped aren't "criminally" at all. Most people would think that's a problem, but not New York City:

Heidi Grossman, the city’s lead lawyer, cautioned Judge Scheindlin, “You’re speculating what the reason is.” She noted that an improper stop could have been a mistake or based on an officer’s misunderstanding of the law, rather than a racial motivation.

Though it apparently wasn't said, the foundation for the argument is Hanlon's Razor, never attribute to malice what can be adequately explained by stupidity. In other words, New York's Finest are too clueless and incompetent to be expected to recognize when reasonable suspicion doesn't exist or that the law precludes their unconstitutional conduct, and they should therefore be forgiven their millions of trespasses.

While it's called "Hanlon's Razor," the concept is also attributed to Robert A. Heinlein, whose 1941 short story "Logic of Empire" includes the quote, "You have attributed conditions to villainy that simply result from stupidity." This, of course, leads inexorably to another of Heinlein's quotes from his 1966 opus, The Moon is a Harsh Mistress: TANSTAAFL.

It's time for the New York City Police Department to pay the lunch bill. Check please.

"Taser Joe" Martinez Meets The Line

SHG — Tue, 21 May 2013 10:17:00 GMT

When the caption of a 5th Circuit opinion by Judge Emilio Garza includes a police officer's nickname, and that nickname happens to be "Taser Joe," you have to find out why. After all, plenty of deputies use Tasers, so it's not easy to stand out.

In Ramirez v. "Taser Joe" Martinez, Jim Wells County Deputy Taser Joe went to Reynaldo Ramirez's landscaping business to arrest Ramirez's sister-in-law on a warrant. It being Ramirez's business and sister-in-law, he questioned what Taser Joe was up to. Taser Joe was not pleased.

Ramirez claims the officers had their guns drawn and were pointing the guns at his employees, who were kneeling down. Ramirez approached Deputy Michael Teodecki, another Jim Wells County sheriff’s deputy, and asked him to explain what was happening. Teodecki said Martinez was in charge of the operation and did not disclose any other information.

Ramirez located Deputy Martinez and asked Martinez what was happening and why the officers were there. The two exchanged profanities. Martinez yelled, “You shut your mouth or I will take you to jail!” Ramirez simultaneously yelled, “This is my business, ok?” twice. Martinez yelled, “Turn around and put your hands behind your back!” Ramirez did not comply. Martinez grabbed Ramirez’s hand and told him to turn around, but Ramirez pulled his arm away. Martinez immediately tased Ramirez in the chest.

Notably, Ramirez's "crime" was not shutting his mouth upon command, notwithstanding the fact that the deputies were at his business, pointing guns at his employees, who were kneeling down. There's no mention of whether the deputies forced the employees who had nothing to do with the arrest to kneel in their presence, but it seems reasonable to assume that wasn't their preferred position.

Aside from asserting that the deputies had intruded on his business and demanding to know what they were doing, Ramirez did nothing to give rise to suggest a crime. Significant detail? Not even close.

Judge Garza held that Ramirez's act of "pulling his arm away" when Martinez sought to grab it was all the probable cause he needed, relying on Texas Penal Code §38.03 which provides:

The offense of Resisting Arrest is defined in relevant part as follows:

(a) A person commits an offense if he intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer’s presence and at his direction from effecting an arrest, search, or transportation of the actor or another by using force against the peace officer or another.

(b) It is no defense to prosecution under this section that the arrest or search was unlawful.

While caselaw holds that pulling away is resisting, the kicker is in subsection (b), that it is no defense to resisting that there was no basis for the arrest in the first place. This flies in the face of the commonly understood belief that if a person has committed no crime, the police have no authority to arrest or use force to effectuate that arrest. Silly people, thinking that there has to be lawful justification at the outset or what follows can't be lawful.

What continually stymies people's understanding of how criminal statutes work is their expectation that it will somehow comport with a logical progression. As most any judge will tell you, the law demands you submit first and complain later. Was Ramirez's annoying Taser Joe with his insipid questions about why deputies were at his business pointing guns at his kneeling employees a crime? Well, no. Not a crime at all, but the fact that he pissed off the deputy was more than sufficient to set in motion the chain of events that placed the burden on Ramirez to submit to arrest. And his failure to do so, by pulling his arm away from Taser Joe, was a crime in itself, even though no crime occurred upon which the arrest could be justified.

There are no shortage of folks, myself included, who think this view of the relative authority of police to arrest for contempt of cop is not merely wrong, but more than sufficient cause for a citizen to defend his constitutional right to be left alone. But neither the legislators who enacted this law, providing police with authority that bears no connection to reason and subjugates citizens to the craziest whims of police, nor the courts agree. The notion is that protecting cops is the first priority. Protecting citizens from cops, not so much.

As if that isn't bad enough, after Ramirez pulled his arm away, Taser Joe did what he does, he tased him. Based upon the law that pulling away from a police officer attempting to effectuate an arrest, even if there was no basis for the arrest in the first place, is a crime, Taser Joe contended that he was entitled to one free tase. Taser Joe, meet the line.

Therefore, accepting Ramirez’s version of the facts as true, the first Graham [v. Conner, 490 U.S. 386, 396 (1989)] factor weighs slightly against Martinez. Second, a reasonable officer could not have concluded Ramirez posed an immediate threat to the safety of the officers by questioning their presence at his place of business or laying on the ground in handcuffs. Pulling his arm out of Martinez’s grasp, without more, is insufficient to find an immediate threat to the safety of the officers. Third, as in the first Graham factor, according to Ramirez the only resistance he offered was pulling his arm out of Martinez’s grasp; he alleges several officers then forced him to the ground without resistance on his part. Viewing the facts of this record in the light most favorable to Ramirez, any reasonable officer in Martinez’s place would have recognized Martinez’s conduct was objectively unreasonable under the Graham factors.

While pulling an arm away may be sufficient to give rise to a crime, it isn't sufficient to pose an "immediate threat to the safety of the officers" such that they can use force against him. This is a curiosity, given that the act of Ramirez pulling his arm away is deemed sufficient "resistance" for arrest, a not-inconsequential intrusion into a person's life and liberty, but insufficient to justify the use of a Taser. Sweet.

And it thus goes without saying that the second tasing of Ramirez, when he was on the ground, handcuffed and not resisting anything, was unreasonable and a flagrant violation of established law. But then, why do you think they call him Taser Joe?

H/T FritzMuffKnuckle and Courthouse News

Will Money End Recidivism?

SHG — Mon, 20 May 2013 11:11:00 GMT

"John Arnold" isn't a household name, even though he's made a ton of money as "a wunderkind natural-gas trader at Enron who later founded his own hedge fund." Enron? Well, even Enron made some real money in its day, and Arnold was their killer trader. With more than he could ever spend, John and Laura Arnold have moved on to doing something worthwhile with their money.

From the Wall Street Journal:

Most billionaires tend to write checks to good causes they're part of, hospitals where they were treated or universities they attended. These are the so-called "grateful-recipient" donors. Or there are donors who make sizable gifts to meet an obvious need in a community, such as hunger or education. But at a time when charitable giving in the U.S. is still down from its peak in 2007, the Arnolds want to try something new and somewhat grander. John says the goal is to make "transformational" changes to society.
The Arnolds want to see if they can use their money to solve some of the country's biggest problems through data analysis and science, with an unsentimental focus on results and an aversion to feel-good projects—the success of which can't be quantified.

What the idea lacks in immediate gratification it makes up for in scope and breadth. Intransigent systemic problems tend to be ignored because the cost/benefit ratio sucks. Even if a fortune is dedicated to fixing such a problem, there is no assurance that any benefit will ever be derived. Sometimes, intransigent problems are just, well, intransigent. But then, if you never try, you never know.

This is where the Arnold's effort gets curious.

Along with obesity, the Arnolds plan to dig into criminal justice and pension reform, among others. Anne Milgram, the former New Jersey attorney general hired to tackle the criminal-justice issue, has a name for all this: She calls it the "Moneyball" approach to giving, a reference to the book and movie about how the Oakland A's used smart statistical analysis to upend some of baseball's conventional wisdom. And the Arnolds are in no hurry for answers. Indeed, they believe patience is a key resource behind their giving.

If the goal is to "tackle the criminal-justice issue," what message comes from the choice of former New Jersey attorney general Anne Milgram to lead the effort? Her relatively brief career in the law has ranged from New York prosecutor to New Jersey prosecutor.

Then again, this only matters relative to the gist of the criminal justice reform. If the question is how can we convict more people and send them to prison longer, it's one issue. If the question is how can we prevent the conviction of the innocent it's another. The issue under scrutiny here is a bit different:

The Arnolds hired Milgram to analyze criminal justice, with the mandate to "take resources off the table for a while"—in other words, don't worry about what the research will cost. She zeroed in on how, despite New York City's success with the CompStat crime-reduction system, the influence of empirical data has barely trickled down to the local level. "It's hard to think of an area that is less data-driven and analytical than local government," Milgram says.

Huh?

 In particular, she and Laura became fixated on how the country spends $9 billion to keep nonviolent, pretrial defendants behind bars, even though there is little data on the risks those accused pose to society. As Milgram points out, most baseball teams know more about their backup shortstops than judges know about pretrial defendants before locking them up at great cost to society and the accused.  

Oooh. Didn't see that coming. As for the "Moneyball" analogy to shortstops, well, it's pretty darned poor. There are a whole lot more criminal defendants than major league quality shortstops, and not every defendant has a relevant statistical record to rely on. "So what team did you commit burglaries for in college, Joe?"

"It struck us as a uniquely bad mechanism to decide who should stay in jail," says Laura, who also sits on the board of The Innocence Project, which uses DNA testing to clear prisoners on death row.  Using data from more than 1.5 million cases, Milgram and her team created a risk-assessment tool for judges that will be tested in three jurisdictions later this year. The Manhattan district attorney's office is planning to try a similar tool designed for prosecutors.

[Edit: This was omitted from the original post this morning. Sorry.] Risk assessment in pretrial bail/detention is relatively easy at the low ends and relatively pointless at the upper ends of the crime spectrum. At the low end, where poor defendants can't make $500 bail, they sit until they plead to avoid spending the year awaiting trial. At the upper end, solid citizens who have no reason in the world to flee but for the seriousness of the charge, are held without bail lest the judge be impugned for letting some accused murderer out on the streets. It really doesn't require a billion dollar study to empirically demonstrate that non-violent defendants pose no risk of violence if released on or without bail.

But if this risk assessment makes any sense, it would seem to have far greater application to sentencing, a far larger systemic problem, than pretrial detention. After all, at arraignment, everyone is presumed guilty, even though bail determinations don't necessarily reflect it. After conviction, everyone is guilty. What then is the risk? What then is the sentence? That's where some empiricism could do us a world of good.

Sentencing, as discussed here numerous times, remains a black hole of empiricism, the last bastion of religion in the law. It can only be explained in broad, meaningless strokes, without any hint of justification for the length of time a defendant is taken from his family, or society is made to pay for his warehousing. It's voodoo.

And yet, one can't help but wonder what bases predicated the 1.5 million cases of data? On the one hand, Laura Arnold sits on the board of The Innocence Project, which suggests a concern for the wrongful conviction of the innocent, and in turn the use of weapons in the fight for convictions that lend themselves to the securing convictions at all costs.

On other hand, former New York County prosecutor Milgram has been chosen to take the lead. So Manhattan District Attorney Cy Vance is planning to try using a similar empirical tool? Is that offered to suggest that if it's good with prosecutors, it should be good with the rest of us? Are prosecutors the bellwether for a healthy criminal justice system?

The outcome of this project may well prove to be beneficial to everyone, providing an empirical basis and maybe sentencing that will end the imposition of meaningless numbers that leave people who pose no risk of recidivism or harm to society behind bars for years, for decades. But every effort at reform begins with a bias, and there is nothing in this article to suggest otherwise here.

If anything, it's particularly scary as it has the potential to offer what appears to be an empirical basis for what's not done with eyes closed which may prove to be impossible to argue against in the future (unless you have a few billion to do a study of your own), and yet infected with the same assumptions about the bad guys that have given rise to such brilliant solutions as mandatory minimums, three-strikes laws, zero tolerance and life without parole for children caught with their shirt tails out.

So will money end recidivism? I dunno, but I do know that whatever it comes up with, there's no one around willing to engage in a counter effort to dispute the results.

H/T Stephanie West Allen

The Death of Andrea Rebello: Excuses 2.0

SHG — Mon, 20 May 2013 09:57:00 GMT

When news first broke of the killing of Hofstra student Andrea Rebello, the first reports had two distinct features: the reports were fundamentally wrong and they began with a lie, that she was shot by the masked gunman, Dalton Smith. A bad smell permeated the news.

When the truth came out, that Rebello was shot in the head by a Nassau County police officer, the explanation was that the first two officers on the scene decided to enter the home, where the gunman, with Rebello in a headlock, pointed his gun at an officer. The unnamed officer fired eight shots, one of which struck Rebello in the head.

The next line of questions related to why a patrol officer would enter a house with a gunman and hostages. The proper course of action would have been to secure the scene and await supervisors and hostage negotiators. The one thing you don't do is play cowboy, enter the home and create an untenable situation. There was little chance it would end well.

Enter Excuses 2.0, via the New York Times:

Officers who arrived first on the scene believed that they were confronting an armed robber but knew nothing about the hostages, the police said. That gap in knowledge was critical, experts said, possibly leading to missteps that inflamed an already dangerous situation and ultimately led to tragedy.
Most critical, experts said, was the decision by the officer who ultimately opened fire to enter the home in the first place.

This raises three possible faults. Did the young woman who called in the 911 neglect to mention there were people in the house? Did the 911 dispatcher neglect to mention there were people in the house? Did the officers who entered the house either fail to pay attention to the radio run or decide on their own to enter the house anyway.

Only minutes elapsed from the time the police were summoned to the home on California Avenue about 2:30 a.m. Friday until the shots were fired. Hostage negotiators were summoned, but they did not reach the scene in time, said Deputy Inspector Kenneth Lack, of the Nassau County Police.
“The first time they knew there were hostages was when the officers were already in the house,” Inspector Lack said, citing details from a preliminary investigation.

Once inside the house, the officers had few options.

The officers did not have "few" options. They had none. Someone was going to be shot and the only question was who. But when crafting explanations for why it wasn't the cops' fault, or at least creating sufficient doubt that people will have moved on to the next tragedy before the answers become apparent, relying on something like the radio run, reflecting the pivot point of communications between 911 caller and police on the scene is a risky proposition.

Whether the Nassau County Police released the dispatcher's call to the media or it was picked up on a police scanner isn't clear, but in this early report, before anyone knew that Rebello died from an officer's bullet, enough of the radio run is included to provide an answer. (Note that I would include the video in the post for your convenience, except WPIX begins with an offensive autorun 30 second commercial. The portion of the report containing the radio run starts at 1:44.)

There are also news reports where the police note that there were hostages and calling for supervisors moments before the "shots fired" call came over the police radio.

They knew. They entered the house anyway. By doing so, they created the "worst case scenario."

A former firearms trainer for the New York Police Department, who asked for anonymity because he maintained close ties with active-duty officers, said a situation like this one — an armed gunman pointing a weapon in proximity to a victim — was “the worst-case nightmare for cops.”
He said such situations required a balance between protecting the victim and the officers themselves.

“I would hate to be in that situation myself,” the former trainer said, “but the bottom line is if a police officer believes that his death or the death of a civilian is imminent, he is absolutely justified in utilizing deadly force.”

Where exactly the balance between protecting the victim and the officers protecting themselves came into play here remains unclear. The answer seems to be in not creating the nightmare scenario rather than having to pick who dies today.

Make no mistake, the gunman, Dalton Smith, bears primary responsibility for the course he set in motion when he decided to rob the home at gunpoint. But it's the job of the police to come into a criminal situation and make things better, not worse. And having taken a bad situation and turned it into the "worst-case nightmare," the lies and excuses to deflect the mistake, the failure to take actions that would have given Andrea Rebello a chance at survival, can't be ignored.

The officer who fired the shot that killed Andrea Rebello hasn't been named. Indeed, it's likely that he will be scarred by what he did to this young woman for the rest of his life. His career with the police may be over, not because he will be fired for having acted improvidently, but because he can't shake off the guilt of being directly responsible for the death. The police will likely speak to the heartbreak of the police officer, the psychological trauma he will suffer for the rest of his life, to remind us that he too is a sympathetic player in this tragedy.

While this may be true, the suffering of the officer who killed Andrea Rebello won't be nearly as deserving of sympathy as the suffering of her twin sister or her parents. The difference is that the officer had a choice of whether to enter the house. He gave Andrea Rebello no choice. And the excuses to deflect blame from the police just make the suffering of the Rebello family worse. It's bad enough a cop killed Andrea Rebello. Don't make it worse by making up excuses.

My "Styles" Audition for the New York Times

SHG — Sun, 19 May 2013 13:17:00 GMT

Having already taken charge of the op-ed page of the Times, I needed a new challenge. What better for a cutting edge guy like me than the Style Section? Do I not know that the Louis Vuitton store is on 57th Street? Come on.

And so, I tackle the hard questions posed to Philip Galanes in today's paper, since he obviously isn't really cut out for this style stuff.

My husband and I are preparing our wills. We have two adult children: a daughter who is more successful than we are, and a son, who has been down on his luck for years. He also has three young children to educate. Everyone, including our lawyer and close friends, tells us that we should leave our money to them in equal shares to avoid hurt feelings. But that doesn’t seem right. Our son needs the money. Still, we don’t want to hurt our daughter. What would you do?

Anonymous, Chicago
Stop listening to everyone. It’s your money, and they’re your children. Who better to walk this perilous tightrope than you, especially if we set up cushiony nets beneath you (unlike Burt Lancaster in “Trapeze”)?

Burt Lancaster in "Trapeze"? Seriously. When I was a kid, that movie was so old it was on the 4 O'Clock Movie five days a week. Come on, Philip, strap on those sock garters and spats and get out once in a while. But I digress.

So is your irony detector going crazy like mine? The anon questioner, who hasn't bothered to make a will until her children were old and half-losers, has already raised their issue with the people who know them, know their financial sitch, maybe even knows their kids, and so they've decided to ignore people with knowledge in favor of a guy who writes for a newspaper and doesn't know them from Adam. Minus 1.

And what does the newspaper guy say? Stop listening to everyone. Oh, the irony alarm is deafening. Don't listen to them. Listen to me? Anybody home?

Naturally, what caught my eye about this question was that it stands at the crossroads of law and feelings. So the old folks who never thought to make a will before are now struggling with how to take care of their loser son. Does it dawn on them, or Philip, that leaving him more than a half share might not be a helpful way to deal with it at all. How about a good smack in the face, a la Moonstruck? Remember the old give a man a fish allegory?

So they feel guilty about having failed their baby boy. With good reason, apparently, and so their parting message to their daughter, who worked hard and accomplished something with her life, is we don't love you as much as your brother.

Bequests to children aren't rational, even if the daughter says she gets the reason. It's a matter of legacy. If you hate one of your kids and want to get in the final smack, screw him in the will. Just remember that there is no going back afterward, so you better really, really hate the kid because the kid is for sure going to hate you.

The point of advice isn't to confirm what the person asking wants to hear anyway. It's to help them despite whatever really dumb thing they want to do. When it comes to something like a will, there are a wealth of concerns that would never occur to a Style guy because he's never sat in a room with the children of dead parents, trying to figure out why they did what they did. Experience suggests that things nobody wants to believe will happen will happen. They get greedy and needy. They get angry. They get spiteful and hateful. They shouldn't, and the testator didn't think they would. But they do.

How do we know such things? Because this isn't the first person who ever made a will. Now the big question: Is she leaving behind any Louis Vuitton bags?

So when should I move my stuff into Philip's old desk?

Every Day is a Networking Event

SHG — Sun, 19 May 2013 10:43:00 GMT

For reasons that can best be described as a generosity of spirit combined with some internal pride, Fishtown Lawyer Jordan Rushie posted about the things he did in his extralegal week. He had a busy week.

Monday: Confer with FNA Board to discuss PTSSD grant, which involves a significant amount of money coming into the neighborhood for civic projects
Tuesday: 6:30pm – 9:00pm – Hosted an FNA Zoning community meeting to take a vote by the neighbors on a large scale residential development proposal.
Wednesday: 12:00pm – 5:30pm – Testified before the Zoning Board of Adjustment on behalf of FNA about proposed development along the Delaware Avenue Waterfront (the largest development ever proposed in Philadelphia), and its impact on the Fishtown neighborhood.
6:30pm – 9:00pm: Hosted a Fishtown Area Business Association meeting, which was attended by over 60 local business owners to discuss happenings in the neighborhood (and drink a few beers).
Thursday: Attend FNA General Membership Meeting to discuss happenings in the neighborhood with the community, including all of the things that happened earlier in the week.
Friday: Quizzo in my local watering hole, Luke’s Bar.
Saturday: 1:00pm – 3:00pm – Station table at the Trenton Ave Arts Festival for FNA.

Sure, it smells a bit like "look at how awesome I am," of the sort usually found on law professor blogs, but he knew that his contemporaries would react by slamming him for being self-promotional. Yet he posted it anyway, including at JD Underground, where his offering was met with anticipated hate from the Slackoisie.

Coincidentally, the other Fishtown Lawyer, Leo Mulvihill, posted at the Puddle about creating a "book of business," beginning with saying hi to people

Think about how many people you walk by on any given day without even looking up from your smartphone because you’re updating your Facebook status. Every one of those people is a potential future client, and you’re busy with cat pictures.

The handsome young couple down the corner, One-Eyed-Nick, Crazy Cat Lady, or even just your Friendly Neighborhood Postman — just say “Hello!” You’ll catch people off guard. You might even strike up a brief conversation. But more than that, these folks will begin to recognize you. While you might start off as “that weird guy who says ‘Hi’” every day”, over time you become “that criminal defense lawyer whose office is around the corner.”

This is in prelude to a post at a lame scamblog, Outside the Law School Scam, where a writer using the pseudonym "the adjunct law professor" schools the babies on "networking events."

A few years ago, I was encouraged to go to local business meetings, breakfasts, lunch groups, etc. And they all - yes, all! - had the following composition:

- Attorneys
- Real estate agents
- Insurance salespeople
- Mortgage brokers
- Random chick selling gift baskets

Nothing else. They were pathetic gatherings where people whose businesses relied upon sales handed out business cards to each other. Look at who your fellow bottom feeders are.

He (she?) is certainly right about what one finds at a "networking event," since the only people who have any reason to attend are people who need business. No one shows up at one of these nasty meetings because they have too much work or are looking for someone to give money.

But at the same time, this self-described adjunct law professor reaches the completely wrong conclusion.

If you're not a salesperson, you will not be a successful lawyer. If you're uncomfortable shaking hands and schmoozing and networking and spending half your life working the room in sleazy gatherings, you will not be a good lawyer. Law is not about law. Nothing that makes you a successful lawyer is learned in law school. You would be better off spending three years slutting around on a used car lot, because that's how you learn how to snare people into deals they don't need for prices they can't afford.

His math is all wrong. The desire to work the room in hotpants at a networking event has nothing to do with the practice of law, and everything to do with looking for the second easiest (and third worst) route to success. The events are sleazy? You bet. Worthless? Sure. This makes lawyers sluts? No.

Trying to put this into language the Slackoisie will understand, life is a "networking event." We meet people constantly. We chat with them, make friends (or enemies), hang out and share jokes and dirty looks. There is a world out there teeming with life.

You want a networking event? It's been going on since before you were born and will continue after you die, non-stop. It's up to you whether you want to be part of it, and while there will be the occasional "random chick selling gift baskets," there will also be the occasional person who will one day need your help.

See how that works? You aren't going to meet these people staring at the screen of your iPhone or Ultrabook, but participating in something I like to call "life."

Sure, there are some people who are more gregarious and outgoing, always able to make friends wherever they go and, somehow, get people to want to speak to them about their problems without coming off like a salesman. So you're not one of them? That's okay. That's where Jordan's and Leo's posts come into play.

Get Involved. Not only is it scary easy, but there is a committee or group for pretty much every activity man ever invented, and there are never enough warm bodies to fill the seats. Groups are constantly trying to get new blood in the door, and anyone who offers to help is usually embraced.

And so you know, if you aren't given a big welcome, it's nature's way of telling you that you are the problem, not the world. You may want to adjust your attitude appropriately or go back to your Gameboy and beat that next level.

The networking event is going on now, as I type. But it is not happening in your parents' basement. That's why you weren't aware of it until now. And you can thank the young lawyers who are out there engaged in it for letting you know instead of cursing them for making you feel inadequate.

© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.

How Do You Say "Reasonable Accommodation"?

SHG — Sun, 19 May 2013 10:05:00 GMT

An interesting post from Jonathan Turley:

There is an interesting lawsuit against an academic institution in Colorado. Spanish-speaking custodial workers at the Auraria Higher Education Center in Colorado are suing over the failure of the Center to give them instructions in Spanish — alleging that they have faced unsafe conditions over the use of English rather than Spanish. The case suggests that the use of Spanish can not only be legally required but that the use of English can constitute a type of unsafe workplace.

While it certainly seems more effective to communicate with employees in a language they understand, does the failure to do so give rise to an actionable claim for an unsafe workplace?

Blaine Nickeson, an AHEC vice president, said that the AHEC does offer some translations, but that it cannot be required to use native languages for all of its employees.

Note that the case is brought by Spanish speaking workers, ignoring for the moment that they happen to be custodial workers. We can't assume that all their workers who speak a language other than English are also Spanish speaking, so is the duty to communicate with every worker in their native language? Turley doesn't think so.

I cannot see how using English as the primary form of communication in the United States can be the basis for discrimination or an unsafe work environment. If schools are legally required to speak the language of custodians and other employees, can they refuse to hire non-English speaking employees or would that be a form of discrimination based on national origin?

In some of the comments to his post, the reaction was "if they want to hire Spanish speaking custodians, then they have to give them instructions in Spanish." Implicit in this rationale is that they could refuse to hire Spanish speaking custodians because they are Spanish speaking. Is that really the best outcome?

Similarly, many argue that this is America and they ought to speak English. Then there is always the "foreigners stole our jerbs" view, because so many Americans are clamoring for those custodian positions so they're not relegated to pushing lawn mowers.

It seems that there is no question but that hiring non-English speaking employees would compel an employer to make a reasonable effort to create effective means of communication for the benefit of everyone. It doesn't do the employer or employee any good to have an inherent breakdown in communication, and it certainly isn't in anyone's interest to have anyone get hurt.

“Too many things have happened to me there that I don’t even know how to explain it,” said Auraria custodian Bertha Ribota.
Ribota said she was injured at work because she couldn’t read a warning sign that was in English.

“If I could speak English I wouldn’t have the problems that exist,” said Ribota.

The same, of course, could be said of people who come to the United States to work, that it would be in their interest to learn English. Of course, that's easier said than done, and even if they do, they have to eat until they've achieved a sufficient level of mastery that they can read the sign that says "don't stick your head inside machine while blades are turning."

While Title VII of the Civil Rights Act of 1964 requires employers to provide "reasonable accommodations" in the cases of religion and disability, it does not require an employer to communicate with every employee in his or her native language. The question isn't whether it's a good idea to do so, but whether the law requires an employer to do so.

Like Turley, I don't see how it could work or be enforceable. If an employer has a staff that speaks 5 languages other than English (or make that 20, or 50), would the employer be required to have supervisors who speak those languages as well, signs for every language, perhaps translators working full time?

The alternative is that the law would have to allow employers to discriminate based on language, which implicates national origin, so that he could have staff speaking only one or two foreign languages, and then it would be relatively manageable to have supervisors or translators to manage the Babel.

But these are inherently burdensome on an employer and pretty ineffective means of dealing with the problem. What if your one Mandarin speaking custodian quit and was replaced by a Ukrainian? The problems are endless.

The obvious "solution" is for foreign language speaking employees to learn English (or for everyone to agree to speak Spanish) so that there is only one language in the workplace, but that's a fantasy solution, impractical as well. And yet who can blame employees for not wanting to get hurt?

The .05% Solution

SHG — Sat, 18 May 2013 10:21:00 GMT

It started at .10%. Then it was .08%. Now, the National Transportation Safety Board wants to reduce it to .05% blood alcohol content to create a per se crime of drunk driving. And it comes with a plethora of ideas, including steering wheels that can tell from perspiration whether the driver has been drinking, or interlock devices that won't allow a car to start until the driver has done some heavy breathing,

The New York Times says it's a good thing.

It is surprising how few drinks can impair a driver’s judgment. A report from the National Transportation Safety Board estimates that alcohol-impaired driving contributes to thousands of deaths and tens of thousands of serious injuries each year. It is right to urge states to reduce that toll by lowering the allowable blood-alcohol concentration for drivers from 0.08 percent to 0.05 percent.

The first sign of a problem is the wiggly word used to make the connection between alcohol and thousands of deaths. See how they snuck it in there, "contribute"? Not "cause," because there is no evidence that alcohol was the cause, and indeed there is a ton of evidence to the contrary. The statistics are played by including in the numbers any death where anyone anywhere near a car had any alcohol in them, including the victim, without regard to whether alcohol had anything to do with it.

The second sign is that Mothers Against Drunk Driving, the force behind the reduction from .10% to .08% and the public service announcements, the school groups like SADD, and pretty much every initiative relating to drunk driving, doesn't support this change.

This is shocking. No, worse than shocking. But MADD isn't just the mothers who have endured a tragedy anymore, but a sophisticated machine. In their zeal to wipe drunk driving from the face of the earth, they realize that this move goes too far. They have thrived on the support of middle America, using the "do it for the children" argument better than anyone else. But this move goes beyond the tipping point of acceptability, and that would spell the death of their power and their effort.

The use of a percentage of blood alcohol content as the definition of a crime is a strict liability offense. You don't have to drive dangerously. In fact, you can driver perfectly, but you're still a criminal. You may not put your own interests ahead of society, but just be a pretty normal, law-abiding, happy person, and still you're a criminal. You may support the death penalty, make cookies for the DAR bake sale, own an AK, but still you're a criminal.

If the BAC is reduced to .05%, it's going to change a lot of lives, and the people whose lives it changes aren't bad people and aren't going to like it.

The point has been made that if we want to eradicate drunk driving, then it can be done quite easily by making the legal BAC .00%. No drinking, period. Easy. But people aren't going to like that at all. The argument offered to make the .05% BAC more palatable is that it allows some drinking:

The new standard would not bar all alcohol, but would mean giving up a drink or two. A 180-pound man who might be able to drink four beers or glasses of wine in 90 minutes without reaching the 0.08 limit might have to cut back to three to meet the lower standard. A 130-pound woman who could have three drinks in 90 minutes and stay below the current standard might have two drinks instead.

The advocates want to make this change seem as innocuous as possible, rather than controlling the behaviors of others. Not being much of a drinker, it would likely have no impact on me. But for those who enjoy a bottle of wine with dinner, or live out in no-man's-land and whose only entertainment is a dozen beers at the highway honky-tonk, they will become criminals.

And that's the issue. This isn't about advocating for the right to drive drunk, but about the criminalization of things that are done today by the law-abiding. This isn't about people making a decision to engage in criminal conduct, but about people not knowing whether they're going to be a criminal or not.

There are many consequences of this change, together with the other ideas to prevent people from driving drunk, that aren't being discussed. What happens when the technology of the magic steering wheel fails and cars won't start? What about the person who shares a car with a convicted drunk driver but is constrained to use the interlock device? What about the person with an emergency who needs to get to the hospital but can't get the car to start? The list goes on for a long time. Use your imagination.

The Bubble Boy agenda, the Utopia where no one is ever harmed, won't happen because of this change. There will still be crashes, because people can't drive worth a damn, and there will still be children who die in crashes. There will be diseases that take the lives of people who don't deserve to die, even though the television informs us that they've cured restless leg syndrome. There will never be that perfect world where no mother has to bury her child.

Still, anyone who has had too much to drink should not get behind the wheel. You are selfish and foolish, and you have no right to put me or my children at risk because you wanted to have a good time. But you can do this because you're a human being, not because it's the new crime du jour. And police can, and should, arrest you if you drive recklessly, whether it's because you're drunk or you just drive like crap.

It's hard to argue against something that has become so socially unacceptable as drunk driving. Only a pariah, or a criminal defense lawyer, would be ~~crazy~~ bold enough to speak out against something that saves the lives of children. But when half of America finds itself branded as a convicted criminal, crying in a lawyer's office that they meant no harm, and caused no harm, it will make more sense.

© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.

The First Reaction: It Wasn't Our Fault (Sad Update)

SHG — Sat, 18 May 2013 10:10:00 GMT

The story isn't a particularly complicated one, when an armed intruder broke into an apartment of Hofstra University co-eds in search of money and, not finding enough to satisfy him, sent one to an ATM to get more. Even for someone stupid enough to invade a home, this was idiotic. If you want money, you don't pick an apartment of college women.

Instead of going to the ATM, Jessica Rebello called the Nassau County Police. Her twin sister, Andrea Rebello, remained inside with the intruder. The story turns particularly banal at this point. Cops swarm, gunfight ensues and two dead bodies are found. Two?

According the Huffington Post:

Andrea Rebello, 21, of New York, was shot dead by a masked gunman while her twin sister was in the house, cops told the New York Post. The gunman was also killed in a firefight with police.

The intruder broke into the home at about 2:20 a.m., where the sisters, one of their boyfriends and another woman were staying. The suspect held them hostage for a short time, but let the unidentified woman go to get cash from an ATM. She called police, NBC News reports.

Rebello and the gunman were killed during a firefight that erupted when police arrived. Police told the Post that the suspect killed Rebello, and cops killed him.

This didn't seem right. Not that it was impossible that the gunman shot and killed this lovely young Hofstra student, but why, in the midst of a gunfight with police would he kill her? To what end? The Daily News told a different story.

Police brass acknowledged that officers opened fire in the house, but couldn’t confirm who fired the bullets that killed the popular college student and the unidentified attacker.

There's the rub. Bullets have no mind, no conscience. They don't know who they strike, and they don't care. At this time, it's unclear whether the masked intruder ever fired his weapon.

Asked if the suspect fired his weapon, [Chief of Detectives Rick] Capece said authorities wouldn’t comment “until we get more info.”

Why is it always after the bodies are dead that the concern about getting more info strikes?

It may be that the police arrived and were fired upon by the robber, returning fire in turn. It may be that the robber, inexplicably, turned his gun on Andrea Rebello in the midst of a gun fight with police and killed her. There is no requirement that stupid or crazy people act in a rational way or do things that make sense under any line of reason.

But it may also be that the Nassau County Police, a force that doesn't get many shootouts, failed to exercise tactical judgment, knowing that there was a young woman in the house with an armed gunman. Was there a need for dozens of police cruisers to descend on the house in shock and awe fashion? Did anyone think it through, make an active decision that this was the best thing to do under the circumstances?

It's not a matter of sympathy for the masked gunman, but cold, hard analysis, that the primary goal at the outset was that Andrea Rebello, as well as the others inside the house, make it out alive. There would be time later to deal with the robber, and capturing or killing him didn't need to come first. First, make sure the innocents inside stayed alive.

That didn't happen. That is what makes this a disaster.

The smell of this scenario is all too usual, massive police presence descends on house. The sound of a gun shot and every cop there opens fire. Maybe it was the robber. Maybe it was a cop. Maybe it was an accident. Maybe it never happened, and one cop thought he heard something and it was his first shot that made the rest discharge their weapons.

But did anybody stop to think there were people in this house? Did anybody stop to think that firing into this house meant that bullets would strike whoever was in their path, without regard to whether it's a masked gunman or a young woman?

I hope it turns out that the gunman shot at police first. I hope the gunman shot this 21-year-old college student. Not because it makes this pointless, terrible death any better, but because it's better than the alternative that the police mindlessly fired into this home and killed her. As a father, that would be more than I could take.

But the smell of this tragedy is bad, and regardless of who killed whom, the goal of the police should have been to assure that the people inside emerged alive. That didn't happen, and there is nothing about the way in which the police dealt with this situation that gave it much of a chance. Their knee-jerk reaction prevailed when they responded to the call.

And when questioned about how Andrea Rebello died, the knee-jerk reaction was to blame the gunman, even though it may well prove to be the cops. Regardless of whose bullet struck her, this was not a good day for the Nassau County Police. This was a horrible day for the Rebello family. This was a bad day for everyone.

Update: The good news is that an answer as to who shot Andrea Rebello now exists, and Nassau Police Commissioner Thomas Dale released it as soon as possible. The bad news is that it's as suspected.

Andrea Rebello was shot once in the head Friday morning by an officer who opened fire after the masked intruder pointed a gun at the officer while holding the 21-year-old Hofstra University student in a headlock, Nassau County homicide squad Lt. John Azzata said.

In a tense confrontation with the officer, gunman Dalton Smith "menaces our police officer, points his gun at the police officer," Azzata said. The officer opened fire, killing Smith and his hostage.

They then lapse into the usual rationalizations:

Azzata said the Nassau County police officer fired eight shots at Smith, who police described as having an "extensive" criminal background. Smith was hit seven times and died. Rebello was shot once in the head.

"He kept saying, 'I'm going to kill her,' and then he pointed the gun at the police officer," Azzata said.

It appears that the story has changed markedly, now with two officers appearing in response to the call, and immediately entering the house, prompting the gunman to hold Andrea Rebello in a head lock. It appears that the gunman never fired a shot.

Condolences to the Rebello family.

Top 10 Ways To Waste An Hour Of Your Life

SHG — Sat, 18 May 2013 10:01:00 GMT

Because everybody loves a listicle:

10. Reading a law review article.
9. Twitting.
8. Waiting for your client to be brought down to the visiting room at a correctional center.
7. Asking your mother-in-law "how are you."
6. Driving on the Long Island Expressway.
5. Waiting for your case to be called for a quick adjournment.
4. Trying to find a new, worthwhile blawg.
3. Asking a parent "how are your children."
2. Discussing the law of contracts with a fellow named Rajesh in Bangalore.
1. On hold waiting for someone at Dell Customer Care to anwer the phone.

© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.

But For Video: Domestic Dispute Edition

SHG — Fri, 17 May 2013 10:30:00 GMT

One of the things that people, including lawyers, have a hard time with is that laws and rights aren't always in sync, and occasionally create a direct and irreconcilable conflict. Ultimately, a side has to be picked, and some will disagree with the choice. This video of the police responding to a domestic dispute in Cotati, California, via Turley, presents a good view of the problem:

Way back when, domestic disputes were treated by law enforcement as a family matter, something that they had no business being involved with and below the threshold of "real crime." Not that it had anything to do with the old joke, "what do you call the husbands of 156,000 abused women? Officer." No, the problem is that what they perceived as benign neglect ended up with the occasional dead spouse.

While this isn't a gender thing in the abstract, it is in real life. There are men who abuse women and do them grave harm. Yes, it happens the other way around too, but the frequency and level of abuse isn't often the same. No carping on who gets beaten more or worse permitted.

A seismic shift in policy happen, and police in most departments across the country were not only required to fully investigate claims of domestic abuse, but to not take no for an answer. No community or police department wanted a dead spouse after the police left a home. This isn't a bad goal.

As for what happened in the video, consider the pragmatics of the situation. The couple refused to come out, as is their right, and refused to let the cops in, as is also their right. If the cops walked away and the wife ended up dead, there would be hell to pay, but if they forcibly entered and found a beaten wife, there would be no downside. The remedy for an unlawful entry is suppression of evidence, and the only evidence would be the victim. You can't suppress a victim.

On the other side, if they break in without a warrant and there is no evidence of a crime, the couple can try to find a lawyer to handle their civil rights claim for a broken door. Not too likely, and chances are fair that they would never make it past summary judgment, even though they should. That's the nature of §1983, whether you like it or not.

But does that make the entry lawful? Not by a long shot. The domestic dispute call might give rise to a reasonable suspicion, but not probable cause. The cops had authority to investigation, but what they found at the home was a couple who asserted their constitutional rights. The issue, of course, is that abused women frequently deny abuse to the police, for fear of retribution afterward, so the wife's (and we're assuming that the police here figured it was the wife who would be getting the worst of the dispute) assertion that she was fine may have been completely accurate. Or not.

But the absence of any evidence, response or observation that supports the allegation that someone was being harmed doesn't create an exigency that permits the police to enter a home without a warrant. Lack of knowledge is neither cause nor exigency, even though one can argue that lack of knowledge doesn't prove that everything is fine.

So the solution was for the police to remain at the window and continue to observe while calling in for a search warrant issued by a neutral magistrate. If they saw someone being beaten in the interim, then they break down the door and enter to help. Otherwise, they cool their jets. And if the judge refused a warrant based on their allegations, then they turn around and walk away.

Might this put someone at risk of harm, even death? Yes, it might, but the Constitution isn't an inconvenience to ignore when hypothetical concerns present themselves. Absent a warrant or exigent circumstances, the police cannot lawfully enter a home. That there is no meaningful remedy for their doing so is a fault in the way we address constitutional violations, not a free pass to ignore the Fourth Amendment.

As for the tasing upon entry, well, there was absolutely no explanation or justification for that use of force, and the woman's screams reminds us that Tasers aren't the easy fix to any situation, but painful and potentially deadly weapons only to be used then force is needed and permitted.

For those still unhappy about how the concerns for abused women interact with constitutional rights, consider that the only pain inflicted her upon the woman came at the hands of the police. How does that fly with your belief system?

© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.

The Kitchen Sink Theory of Reform

SHG — Fri, 17 May 2013 09:35:00 GMT

Jacob Gershman at the WSJ Law Blog opens his post with a question:

When it comes to regulating the legal profession, why is it that only lawyers call the shots?

It's not asked merely as a rhetorical question, but a prelude to the latest bit of academic intrusion into things they don't firmly grasp and serve to distract from the alternative reality where academics clean up their own nasty mess.

There are good, sound, thoughtful arguments to be made on such overarching questions. Unfortunately, the author of a new law review article, Washington and Lee Law School prof James Moliterno, doesn't appear to be aware of them.

“The legal profession is ponderous, backward looking, and self-preserving,” Mr. Moliterno writes. “I recommend a more forward-looking approach that welcomes the views, and even control, of nonlawyers and innovators in business and other enterprises.”

Are we ponderous, backward looking and self-preserving? Hell, yeah. Oh wait, Moliterno didn't mean that in a good way. There is a reason why the legal profession makes glaciers look speedy. It's not necessarily a good thing, but that doesn't make the alternative, flinging ourselves mindless into the future, throw every facile idea against a wall and see what sticks, a good thing either.

One of the foundational problems that neither academics nor non-lawyers seem prepared to grasp is that we holds people's lives and fortunes in our hands. We cannot, for the sake of innovation, risk a person's life. Our own lives? Maybe. Someone else's. No way. There is no post-mortem where we get to say "sorry about that life sentence, but I really wanted to try something new and cool, and it just didn't pan out nearly as well I hoped. Bummer, right?"

To steer a better course, he suggests giving non-lawyers a turn at the wheel. This means, he says, letting them serve in leadership and policy positions at the American Bar Association, which sets the standards and codes of the profession. He thinks state bar associations should also open their doors.

It's not that Moliterno argues that non-lawyers should be involved in the process. To hear what people outside the legal profession think and experience would be enormously useful to lawyers. Any information that adds to our base of knowledge and understanding is useful. But that's not what he's saying. Not by a long shot.

Writes Mr. Moliterno:

Turning to creative nonlawyers presents the most advantageous way for the legal profession to grow and change on its own terms. Creative nonlawyers can predict and manage change that is likely to result from competitive forces. In the United States, changes made by the profession itself are highly likely to dampen pressure for change dictated by government. In the absence of self-reform, change will be effected either by government or the forces of competition.

It's not clear who "creative nonlawyers" are, or whether they have their own department at Walmart, but I've got my doubts that such a group has the magical power of predicting change any more than police have the magical power of knowing who is guilty before they collect evidence. The rationale for embracing creative nonlawyers is that the profession will otherwise be dictated by government or the forces of competition. It's unclear what role government will have, but if the forces of competition were at work, half of American law schools would be closed and lawprofs like Moliterno would have to work for a living.

And what are some of the deeper, more concrete reforms he promotes?

“Lawyers still function on the state-by-state licensure system. A lawyer cannot walk across the line from Ohio to Pennsylvania and engage in law practice,” Mr. Moliterno tells Law Blog, as an example. “We would either move to a national law license or a very relaxed form of admission-on-motion system, allowing lawyers to much more freely cross borders.”

This may come as a surprise, but you can walk across the border in upstate New York to Canada. And down in Texas, to Mexico. Geographical proximity really doesn't have much of anything to do with the ability to move into a different political entity, with its own laws, and magically know what they are. It's not that Ohio and Pennsylvania are physically far apart, but that each is a separate state that gets to make its own laws and run its own court system. I know, crazy, right?

And that's without mention that we now have these machines that take human beings, including lawyers, into the air and in a few hours, transport them to other states, like Kansas, or even Iowa. You no longer have to walk. And these states too have their own laws and court systems. While physicians have the benefit of human bodies being relatively stable across state lines, the corpus juris tends to vary more widely. Yet Moliterno appears to be unaware of this.

“If there were some nonlawyer ownership of law firms, or more generally legal services delivery, the owners would find it in their business interests for the lawyers to have insurance and follow the ethics rules,” said Mr. Moliterno, who just wrote a book on a similar theme.

That's right, segues are for kids. So nonlawyer ownership of firms would encourage ethics rules? Because maximization of shareholder profit has worked so well in making corporations ethical? Oh, he's written a book. Never mind.

And finally, the last resort of scoundrels and those who have never practiced law:

The professor also predicts that non-lawyers would encourage the growth of legal services geared toward middle and low income people. “Entities like LegalZoom and Rocket Lawyer would flourish rather than be sued for unauthorized practice of law. Much more creative systems of service delivery would be pioneered without the resistance of the legal profession,” he said.

The snarky response is that cutting law school tuition by 80% would do a lot more to encourage legal services geared toward middle and low income people, but I don't see Professor Moliterno offering to give back his salary. But that's snarky, and I won't do it. Instead, I merely refer back to my earlier writings that note that fill-in-the-blank forms aren't really legal services, but rather a second-rate palliative for the poor that puts them at grave risk without their appreciation. Or, apparently, Moliterno's.

And in case you're wondering what James Moliterno, who has embraced the kitchen sink approach to reform, teaches, that would be legal ethics to law students. As for trench lawyers who see immediately the absurdity of these reforms, if we don't start playing a role in questioning the efficacy of such scholarship, expect that the downward ethical trajectory of the legal profession is just going to get worse. Or we can just leave it to the lawprofs, because they have such a firm grasp on the practice of law.

© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.

Odds Are 16 2/3% For A Perfect 10

SHG — Thu, 16 May 2013 11:05:00 GMT

When Tempe criminal defense lawyer Matt Brown decided to go on a walking tour of America for a few months, he probably wasn't sure what would greet him when he came home. He found out.

For one thing, Matt learned that he had now achieved a perfect 10 on Avvo. This comes as no surprise, given the strength of the latest award he deservedly won, though his relationship with Avvo hadn't always gone smoothly. But now that he looked as fine as Bo Derek, he returned to an office bustling with people who needed him.

At some point after climbing onto the Colorado Plateau, however, the volume of voice messages increased. Not a lot, but a noticeable amount. Many callers’ messages demanded prompt calls back, ignoring my voice mail greetings entirely. When I called, most of them tried to negotiate my non-negotiable initial consultation fee. They became angry when I suggested I might not be the right lawyer for them if they felt $100.00 was an unreasonable amount for an hour of my time. One guy fumed about how rude I was to not hike my ass back to the office and meet with him for free right away. Another guy sent [Matt's partner] Adrian an email saying I should be fired. Adrian says the complaint is still under review by the firm’s human resources department.

By the time I was done with my vacation, I had scheduled six initial consultations for last week, my first week back. One was with someone who’d called during the first four weeks, but the remaining five were with callers I’d spoken with after more calls started coming in.

What could have caused this sudden surge in popularity? Matt made six appointments for these "leads" and "prospects" to meet with perfection.

Last week, five people failed to show up for their appointments without so much as a call. When I called them afterwards, I got to hear the full gamut of reasons why people can’t be reached. “The Cricket customer you are calling is not accepting calls at this time.” “The number you are calling is no longer in service.” You name it, I heard it. The one no-show I did reach said he’d hired a “TV lawyer.” He didn’t think I might want to know that he wasn’t going to make the consultation we’d set. The one very pleasant gentleman who made his appointment and retained me was the first consultation I had scheduled. He was a referral from a former client.

That's one out of six. One who showed. One who retained him. A week ago, I spoke with a fellow who called me after finding me on Avvo. He had a real case. He had a case that interested me. I explained to him that I do not give free consultations, and he had no problem with it. I made an appointment to see him two days hence.

At the appointed time, I sat there awaiting this potential new client. Fifteen minutes later, playing spider solitaire unsuccessfully on my computer, I called to find out if there was a delay. It took him a moment to remember who I was, and then he apologized. He told me he retained another lawyer the day before. I told that was fine, but asked him why he didn't call me to tell me he would not make our appointment. His voice turned sheepish, and he responded that he thought that was just the way things worked for lawyers. Our call was over.

By my calculus, it takes 1000 calls from people who find you on the internet to get one person whose case I would take. The marketeers don't see this as a problem, and their promise isn't to get you clients, but "leads" and "prospects." What you do with them afterward is up to you, not them.

But the same people who use the internet to find a lawyer are the ones who are taught by companies like Avvo that lawyers' time has no value. They teach that lawyers answer questions for free. They teach that a person in need of a lawyer for his public urination case should contact 10, 20, 30 lawyers to find the right one for them. And while they include the caveat buried somewhere off to the side, below the grinning image of the lawyer who is paying to have his advertisement show up on your Avvo page, that the ratings shouldn't be the sole basis for hiring a lawyer.

But then, who wouldn't prefer to hire a lawyer with a perfect rating. Like Matt Brown. Like me.

By my calculations, I will now have to turn away another 999 "leads' before I hear from a client whose case interests me. But I can't afford to waste another hour of my practice on an appointment where the "prospect" doesn't show. I have work to do for clients who retain me based on referrals from other clients or lawyers, and the time lost to those who find me on the internet is stolen from me and never recovered.

If I feel like killing an hour of my time, maybe I'll use it to walk America like Matt. And when I come home, I'll listen to my messages and ponder how best to use my time.

Nothing To Salvage in Kern County

SHG — Thu, 16 May 2013 09:52:00 GMT

If anyone else had hogtied, beaten, dropped on the ground, beaten again until dead, a man named David Sal Silva, there would be a swift response, resulting in the release of video evidence to the media, a perp walk and a press conference about how brave the officers were to take down the perpetrators. Anyone but their own deputies responding to an call about an intoxicated man.

The beating was horrible.

A half-dozen Kern County sheriff’s deputies were across the street beating a man with clubs and kicking him, she said. So she whipped out her mobile phone and began to video the episode, announcing to the officers what she was doing.
For about eight minutes, Ms. Melendez said, the man screamed and cried for help. Then he went silent, she said, making only choking sounds.

Finally, having hogtied him, a number of witnesses said, two officers picked up the man and dropped him, twice. One deputy nudged the man with his foot. When he did not respond, they began CPR.

Two people reported to 911 what happened, and that they had recorded the beating. The cellphones containing the videos were seized by detectives before they had warrants. Then one of the videos disappeared. In the meantime, the officers present at the murder were returned to full duty.

After the horror of this murder and the "disappearance" of the video became the subject of national scrutiny, gears shifted and Kern County sheriff changed his story.

Sheriff Donny Youngblood also announced Tuesday that he asked the FBI to analyze two cellphones taken from witnesses who say they recorded the incident.

"I took the unprecedented step of asking the FBI to conduct a parallel investigation," Youngblood told The Times. "Our credibility is at stake here."

Youngblood said he has also placed the officers on paid administrative leave, a decision made in the last 48 hours, based on information they had received. He said he wanted to ensure the safety of the officers on the street.

The officers involved are Deputies Ryan Greer, Tanner Miller, Jeffrey Kelly, Luis Almanza, Brian Brock, David Stephens and Sgt. Douglas Sword.

Since, a surveillance video has emerged, but like most surveillance videos, it's not particularly satisfying. The woman who had the video asked that her identity be kept a secret for fear of the reprisal. The video on the seized cellphone that remains has not been released, but one might suspect that it's not nearly as damning as the video that has disappeared. And Sheriff Youngblood says "our credibility is at stake here."

The isn't a post about the horrific beating, murder, of David Sal Silva. This isn't about the warrantless seizure of cellphones with videos of the murder. This isn't about how the deputies were returned to duty rather than arrested, or how they are now on paid vacation while the investigation spins in circles. This is a post about salvaging credibility.

It appears that Sheriff Donny Youngblood, by calling in the FBI to figure out what happened with the disappeared video, thinks this is going to salvage credibility. After all, doesn't it show that he isn't concealing the evidence of his deputies having murdered a man? Hasn't he opened his doors to another law enforcement agency, a credible agency, and by doing do shown that he is not engaged in a coverup?

What invariably comes from discrete incidents of outrage such as the murder of David Sal Silver, the taking of the videos, the disappearance of the videos, the restoration of the cops to the street and the reaction when the cops finally come to grips with the fact that the nation is watching, is a crisis management strategy that seeks to test how badly people want to not confront the terrible things that can happen.

When Youngblood seeks to salvage credibility, he's not being forthright. What he's really saying is he wants to see what it will take bring the public back to his side, to calm down, close their eyes and believe once again that the police are their friends. It's not trust, but stopping the loss of credibility before trust is gone forever.

There is nothing the FBI can do now, even if we assume they can restore a deleted video, that will change the underlying culture of this Sheriff's department that made seven deputies think they were entitled to kill a man, made someone else think they could make the evidence disappear, and made a sheriff think he could put them back on the street and no one could stop him. Even now, with the witness statements and the surveillance video, the best Youngblood can come up with is trying to salvage his credibility by asking the FBI to conduct a parallel investigation.

It's not that David Sal Silva was the first man to end up needlessly dead on the street at the hands of law enforcement, or the first time officers roughly handled the citizens who had evidence of a crime, or the first time evidence of a murder by police mysteriously disappeared, or the first time the perpetrators of a crime were given their guns and shields back to protect and serve, or the first time they were later given paid vacations.

It's also not the first time people read, saw, heard of all these things and let their minds play whatever games it needed to play to find a way not to confront the inescapable reality of the situation, that they were seeing the end result of a malignancy that existed and spread deep within the Kern County Sheriff's Department.

Will the media or the public recognize that there was no credibility to be salvaged, but just another test of whether they are too fearful, too disconnected, too willing to pretend it isn't what it is so they won't have to confront how law enforcement got this out of control, this violent, this evil? If they fail the test, it won't be the first time.

College Speech Codes and the Neo-Puritans

SHG — Wed, 15 May 2013 10:47:00 GMT

While heads are turned toward the other scandals du jour, the Justice Department’s Civil Rights Division and the Department of Education’s Office for Civil Rights has been hard at work trying to ram its Utopian vision of speech down the throats of colleges and universities. If students didn't read Orwell in high school, they get to live it in college.

Via FIRE, the Foundation for Individual Rights in Education,

In a letter sent yesterday [May 9, 2013] to the University of Montana that explicitly states that it is intended as "a blueprint for colleges and universities throughout the country," the Departments of Justice and Education have mandated a breathtakingly broad definition of sexual harassment that makes virtually every student in the United States a harasser while ignoring the First Amendment. The mandate applies to every college receiving federal funding—virtually every American institution of higher education nationwide, public or private.

The letter states that "sexual harassment should be more broadly defined as 'any unwelcome conduct of a sexual nature'" including "verbal conduct" (that is, speech). It then explicitly states that allegedly harassing expression need not even be offensive to an "objectively reasonable person of the same gender in the same situation"—if the listener takes offense to sexually related speech for any reason, no matter how irrationally or unreasonably, the speaker may be punished.

Why? Are they all a bunch of Puritans in Washington? Not likely. Rather, this reflects a neo-feminist political perspective that seeks to protect women from any feelings of sexual harassment. In other words, it's the feminist version of the delicate teacup rule, that women are entitled to go through life without their fragile eyes or ears being forced to suffer anything that they prefer not to see or hear.

At Volokh Conspiracy, Eugene offers a much deeper discussion of what is involved in the newspeak, and why it reflects no acquaintance whatsoever with the First Amendment. But in reading into the inanity of these rules, and the underlying notion of "equality" they purport to promote, I couldn't help but to draw an immediate connection to the Cyber Civil Rights movement promoted by Lawprof Danielle Citron, with the backing of the head feminist lawprof, Ann Bartow.

Ever the evil genius, Ann Bartow of Feminist Law Profs, who I'm sure comes to this symposium with an open mind, makes a pre-emptive attack in her opening post:
Many participatory sectors of the Internet are dominated by aggressive bullies, nasty haters and monetizing opportunists. It's hard to tell whether they constitute a numeric majority, but the geography of the Internet allows a small number of people to scorch vast swaths of earth with surprisingly little effort. There is no currently such thing as the "safe spaces on the web where those with unpopular views can exchange ideas without fear of retribution" that Frank Pasquale calls for. Not even here. The folks running this symposium decided not to facilitate comments on CCR related posts here at Concurring Opinions, but they have no control over the conversations that take place other places, which may be intractably linked to this blog via hyperlinks and search engine results. I'm doubtful that the architecture of the Internet can be changed to provide the benefits of connectivity without simultaneously facilitating engagement or intervention by bad actors.

By the mere act of linking to the CCR posts, others (myself included) are "aggressive bullies, nasty haters and monetizing opportunists." Bartow's never been one to tolerate any opinions other than hers, and she is well rehearsed in the art of simultaneously painting herself the victim even as she lashes out.

The appeal of the rhetoric is self-evident. After all, who wants to be an aggressive bully or a nasty hater? Or for that matter, who wants to be a sexual harasser on a college campus because he asked a girl on a date and was not only rejected, but criminalized. The possibilities are endless.

As insane as the CCR movement seemed at the time, particularly in light of its frontal assault on otherwise well-established rights such as free speech, the imposition of campus speech codes is not only insidious in itself, but the precursor to clearing up the neo-feminist angst online.

After all, if they teach the males while in college that they are sexual harassers based upon the feelings of any potential hearer or seer of their male nastiness, chances are pretty good that they will conform their conduct to avoid being labeled an outcast or criminal, and carry that conduct over to their use of the internet. It may take time for the newspeak mindset to filter through male society, but the hope is it will happen.

And similarly, with the DOJ and DOE on board with the evisceration of free speech in the name of delicate feelings, it becomes a baby step to push this view of sensitivity into other areas of life. The workplace is already a lost cause. The internet is just down the road apiece.

Even though these campus speech codes may not seem to affect many of us directly, though it could very well affect our children, the failure to recognize where this is heading and how it may impact general perceptions of "propriety" when it comes to free speech now may well prove disastrous later. Ten years from now, merely writing this post could spell a ten year mandatory minimum for me, though I suspect it will be digitally burned before any delicate eyes might see it and suffer unpleasant feelings.

Corner Clearing, Rochester Style

SHG — Wed, 15 May 2013 10:18:00 GMT

Many of us have wondered whether the person with the handicapped parking permit is really handicapped or just enjoying the perks of using one of the usually empty spaces close to the door. This same thought seems to occur fairly regularly to police when they come across a person in a wheelchair. After all, it's so much cooler to roll around than walk.

In Rochester, New York, two cops were doing their important law enforcement duty of "clearing a corner," when they came across a less than compliant 52-year-old Benny Warr. Good name, right? Warr was in a wheelchair, which naturally raise suspicions immediately. According to the Democrat and Chronicle:

The incident occurred the evening of May 1 near Jefferson Avenue and Bartlett Street and involved 52-year-old Benny Warr. The video — taken by a bystander whose identity has not been confirmed — begins with Warr being physically taken to the ground from his motorized wheelchair but does not show what preceded the incident.

Police say the officers were clearing a corner, and that Warr was arrested for disorderly conduct and resisting arrest.

The word out of Rochester is that Warr was waiting for a bus when the officers ordered him to get lost. Warr was disinclined to do so, and let the officers know in appropriately unpleasant language. They did not react well.

Naturally, which is defined as there being a video so the Rochester Police Department can't deny this happened or explain that Warr made a furtive gesture compelling the police to engage in a dynamic response for officer safety, an internal investigation is being pursued, according to Sgt. Justin Collins, and the cops hope that Warr will be a willing and compliant witness. Because, well, his experience with the Rochester police has gone so well up to now.

But one thing is clear. Warr needed the wheelchair. And as for any thoughts about whether those people parking taking the really cool handicapped spots are fakers, remember that not all disabilities are visible, and even if they are trying to beat the system, it won't kill you to walk the extra 20 feet anyway. Don't be a hater.

H/T Don Thompson

The FBI Hates The "On" Button

SHG — Wed, 15 May 2013 09:43:00 GMT

Harvey Silverglate of Three Felonies A Day fame has an op-ed in the Boston Globe to remind us of why the FBI does not subscribe to the meme of without pics, it didn't happen. This will come as a shock to many, but the FBI has a policy, an actual written policy, forbidding agents from recording interrogations.

Sounds insane, right? After all, if they can record a confession, it doesn't get any better. Yet again, what seems so obvious and simple runs contrary to the government braintrust, but it's not without reason.

Harvey explains:

FBI agents always interview in pairs. One agent asks the questions, while the other writes up what is called a “form 302 report” based on his notes. The 302 report, which the interviewee does not normally see, becomes the official record of the exchange; any interviewee who contests its accuracy risks prosecution for lying to a federal official, a felony. And here is the key problem that throws the accuracy of all such statements and reports into doubt: FBI agents almost never electronically record their interrogations; to do so would be against written policy.
The memo in part attempts to defend the policy as logistically necessary, but given that virtually every cellphone today has sound recording capabilities, any “inconvenience” or “non-availability” excuse for not recording seems laughably weak. The more honest — and more terrifying — justification for non-recording given in the memo reads as follows: “. . . perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as proper means of obtaining information from defendants. Initial resistance may be interpreted as involuntariness and misleading a defendant as to the quality of the evidence against him may appear to be unfair deceit.” Translated from bureaucratese: When viewed in the light of day, recorded witness statements could appear to a reasonable jury of laypersons to have been coercively or misleadingly obtained.

The 2006 memo is an update to an earlier policy from the '90's, when electronic recording devices weren't as readily available as they are today. They were, of course, still more than sufficiently available, but the lie made enough sense to outsiders that they could pass it off as plausible.

Reality was that they didn't want a jury to see them make sausage of a defendant. While the courts don't mind agents lying or coercing to deceive and manipulate defendants into talking, even admitting to things that were sheer nonsense to stop the interrogation, jurors might not have enjoyed the confession nearly as much. They might have even thought the agents were, well, behaving poorly. Hoover would roll over in his ~~dress~~ grave at the thought.

But the FBI leaves out the even more potent criticism of its practice — that such interview tactics seem virtually geared toward establishing as fact what the FBI wanted to hear from the witness. Frightened and confused interviewees, who, if they deny they said what any 302 report claims they uttered, can then be indicted for making false statements. The FBI is thus able to put words into a witness or suspect’s mouth and coerce him to adopt the FBI’s version as his own. The FBI thus establishes the official version of what a witness said, and the pressure on the witness to adhere to the 302 version is enormous. Any deviation, after all, raises the question: “Were you lying during your FBI interview, or are you lying now?”

This is where an appreciation of what happens is a bit more difficult to appreciate. We can picture, for example, an old time steno sitting there, taking copious notes to precisely record what's being said, but that's not the case. There are two agents, one doing the talking and one doing the writing. The one doing the writing puts on paper the things he decides he wants to put on paper. It goes something like this:

Q: We found files on your computer showing that you went to a website with instructions on how to make a bomb, so we know you did it. When did you first go to the bomb website?

A: I surf the web constantly and go through, like, a million pages. I have no idea what pages I searched or when. How could I possibly know?

Notated in 302: D cannot recall when he first went to bomb website. Went "constantly."

See what he did there? Funny, right? Unless you happen to be the person being interrogated, in which case there's nothing funny about it. I have a permanent bruise just below the elbow where clients squeeze while whispering in my ear, "that's a lie, that's not what I said." Ah, reality versus truth. It may not be what really happened, but whatever is written on a 302 is truth in a United States Courthouse.

And if it's bad in more pedestrian cases, it's worse where the subject matter is sophisticated or industry jargon is involved. The substance flies over the agent's head, so that the only thing understood, and written in permanent ink, is "guilty, guilty, guilty!" There is no nuance on a 302.

A recording can be subject to dispute. A 302 is not. The defendant is placed in the untenable position of engaging in the proverbial "pissing match" with the agent over what words were spoken, and the spray stings. Whether it's a 1001 violation or obstruction of justice enhancement, there is a price to be paid for dispute. Sometimes it's worth the risk, but only because the option of letting it slide is so onerous that there is no choice.

As Harvey concludes, the FBI's choice of not recording interrogations shouldn't entitle them to a presumption of credibility. Indeed, it flies against everything that we know to be true, that they can easily record and thereby provide the court, defense and jury with an indisputable record of what was said.

And yet, they don't and it doesn't seem to bother much of anybody. Well, except the defendant. But then, it's not like he matters, since he's "guilty, guilty, guilty!" After all, the 302 says so.

H/T Radley Balko

Have A Nice Day?

SHG — Tue, 14 May 2013 11:56:00 GMT

Via Ed at Blawg Review (yes, the rumors of his demise have been greatly exaggerated).

An interesting perspective, if one doesn't mind doing a lot of squinting when looking through rose colored glasses. It brings to mind the adage, when you hear the sound of hoof beats, don't assume it's a zebra. On the other hand, if it gets you through the day, assume whatever works.

© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.

Fixing Leaks, AP Style

SHG — Tue, 14 May 2013 10:50:00 GMT

If I had to choose between government without newspapers or newspapers without government, I wouldn't hesitate to choose the latter.

--Thomas Jefferson

The government needed to know who leaked the CIA's in stopping a new "underpants bomber" by Al Qaeda to the Associated Press. To do that, they obtained two months of phone records from AP reporters and an editor.

The records obtained by the Justice Department listed outgoing calls for the work and personal phone numbers of individual reporters, for general AP office numbers in New York, Washington and Hartford, Conn., and for the main number for the AP in the House of Representatives press gallery, according to attorneys for the AP. It was not clear if the records also included incoming calls or the duration of the calls.

In all, the government seized the records for more than 20 separate telephone lines assigned to AP and its journalists in April and May of 2012. The exact number of journalists who used the phone lines during that period is unknown, but more than 100 journalists work in the offices where phone records were targeted, on a wide array of stories about government and other matters.

What distinguishes this story from the everyday accumulation of phone records, or otherwise private information that the government feels compelled to obtain, is that it happened to one of the most significant news organizations in the world, and that it happened to one of the most significant news organizations in the world. No, the repetition wasn't accidental. I'll explain.

Should the government have done this to you, or me, this would not be a headline. What happens to our lives, our privacy, our world, may matter a great deal to us, but not so much to others, and certainly nothing to the AP. But what happens to the AP constitutes a "massive and unprecedented intrusion," according to the AP. That's because it happened to them.

But then, the AP is, by every definition, the Press, with as capital a "P" as one can type. It is the fourth estate, an organization whose duty, at least in concept, is to disseminate news, information and ideas to the public. This function is so critical to the viability of a democracy that its freedom is enshrined in the First Amendment to the Constitution.

Among the tools in its arsenal is the ability to publish information provided by unnamed sources, who may be government officials, who reveal things that the government might prefer not be revealed. This could be the CIA's involvement in thwarting a terrorist plot, or torture perpetrated by the CIA, or corruption. It could be anything that the public needs to know to exercise our responsibilities as citizens in a working democracy. Without information, even if it's embarrassing or, as in this case, overly revealing, our form of government cannot work.

The question isn't whether AP's disclosure was inappropriate and harmed covert national security issues. It probably did. But then, what is the question?

According to Orin Kerr, the question is whether the government, using the tools and methods made available to it by law and regulation, are authorized to ferret out the source who improperly disclosed the CIA's involvement to a reporter. In other words, from the perspective of national security acting within its lawful parameters, there was a need to stop the leak and they did what they had to do. That it was done to the AP was unfortunate, but that's where they needed to investigate.

Orin challenges readers to explain where the government violated any of its own laws or regulations in doing so. The Department of Justice issued a statement explaining its purpose.

We take seriously our obligations to follow all applicable laws, federal regulations, and Department of Justice policies when issuing subpoenas for phone records of media organizations. Those regulations require us to make every reasonable effort to obtain information through alternative means before even considering a subpoena for the phone records of a member of the media. We must notify the media organization in advance unless doing so would pose a substantial threat to the integrity of the investigation. Because we value the freedom of the press, we are always careful and deliberative in seeking to strike the right balance between the public interest in the free flow of information and the public interest in the fair and effective administration of our criminal laws.

This is where things went awry. The government creates its own regulations to effectuate its performance of its responsibilities to us. Theoretically, we approve of its doing so, since we elect smiling/angry faces to be our voice in government, but since we make such electoral decisions based on overarching interests and at wide intervals, nobody really believes that this reflects a majority approval. It's just the unfortunate backside to republicanism. You vote the big picture and suffer the details.

In contrast to the regulations, with which in fairness most people would have no problem provided it happened to someone else, we have an interest of constitutional magnitude. The Attorney General has taken it upon himself to balance "the public interest in the free flow of information and the public interest in the fair and effective administration of our criminal laws."

See what he did there? It's not the freedom of the press versus finding his leaker, but the "fair and effective administration of our criminal laws," the whole megillah. The criminal law of which he speaks would be the one that prohibited someone from leaking to the press that this was a covert operation by the CIA, because they didn't want Al Qaeda to know the CIA was on to them. It's a worthy concern, but less than the "fair and effective administration" of justice. Nobody wants to sacrifice the fair and effective, well you know. But is catching their leaker worth seizing the AP's phone records?

The government says it is. The government says it complied with the rules it made up for itself. The government is sorry it came to this, but fair, effective, well, is important. The government says it's important enough to sacrifice some harm to the free press. And they've woken the AP out of their complacency, because nobody lost any sleep when it was me or you who the government might target.