The saga of medblogger Flea was chronicled here, as well as just about everywhere else in the blawgosphere.  A story in today’s Boston Globe, followed only second later by Eric Turkewitz at NY Personal Injury Blog, reveals that Flea’s live-blogging of his medical malpractice trial, from prep to jury selection (only to suddenly disappear after Eric pointed out that he may well have cut his own throat by disclosing privileged communications) was the deciding factor.  In addition, the “real” Flea’s identity (and photo) and Ivy League credentials were outed in the story. 

The “real” Dr. Flea
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While understandable, it was a great misfortune for those of us voyeurs.  Never before had someone so erudite described the naked emotion surrounding such a trial in such a public way.  The Flea’s writing was raw and emotional.  It was, to say the least fascinating.  I was very sorry to see it shut down.

“Some believe that stricter laws are needed to keep guns out of our nation’s drive-through lanes altogether.  Others say that if guns are outlawed, only outlaws will have condiments, and argue that a better solution is to arm all Wendy’s workers.”

Hat tip to Loweringthebar  Pass the Glock.

The Washington Post brings us The Attack Ads Will Come to Order by Ruth Marcus (you will need free registration), chronicling democracy at work in judicial elections in foreign places, like Alabama.  Judicial Reports, much to my chagrin, has been presenting the Chicken Little scenario for judicial elections in New York for quite some time now.  Up to now, I’ve held the view that they are nuts.

Who is going to contribute millions of dollars to the campaign of some Supreme?  Let’s face it, there’s just not enough chance of a payback to make it worthwhile.  The very notion of million dollar judicial races sounds ludicrous.  Doesn’t it?

But apparently, there are some who think otherwise.  In fact, there has to be a bunch of people who think otherwise, and are ready to dig, and dig deep, into those acetate-lined pockets to fund these campaigns.  And if they can generate enough contributions in Alabama to fuel negative campaign ads, imagine what they will be able to come up with in New York. 

Up to now, judicial campaigning has been largely limited to the sublime.  Meaningless posters without party affiliation or any potential reason to vote, but effectively creating name (and occasionally face) recognition so that the candidates will enjoy ascribed credibility, whether or not they deserve it.  It may not be much, but it’s a proven winner.

But these attack ads make me shudder.  One announced that he sings in the church choir!  I wonder why that’s in the add?

 
The other candidate let a rapist out, one who raped within 12 hours of release.  What could that possibly mean?  Are we doomed to suffer this in New York?  Are the “powers” that administer the Code of Judicial Conduct addressing this coming nightmare?  Have they even thought about it?



It hasn’t yet happened here, and I am indeed thankful.  But my days of telling Center for Judicial Studies Czar Dirk Olin that he’s out of his mind, that this can never happen here, are over.  Methinks Dirk may be on to something.  And if it does, want to bet that a battle in New York is going to make the attack in Alabama look like a lovefest?  And the biggest irony is that Clarence Norman thought he knew what a judgeship was worth.  Man, he’s beginning to look like Piker. 

While taking a walk around the blawgosphere this morning, I stumbled on this piece by Miami criminal defense lawyer Brian Tannenbaum.  It’s cute, but true.

The Wrong Things Potential Clients Say To Criminal Defense Lawyers And Why

You may remember Larry Birkhead from the Anna Nicole Smith paternity case.  You remember, right?  That was the case that involved absolutely nothing of consequence to society, yet displaced less important news such as war in Iraq for weeks.

screwed yet again, this time his lawyer, Debra Opri.  Opri, who inexplicably withdrew as attorney during the messy proceedings that gave us such wonderful moments as the weepy Florida judge, is now suing Birkhead for her legal fees and expenses.  That’s right, even the lawyers on TV have to eat.

Before anybody feels too badly for Debra, consider this.  Her website (link above) promotes her far more as a media celeb than as a lawyer.  In fact, she has a link specifically for her publicity photos!  But don’t you try to download them.  No, no, no.  They are only for “the press and authorized media outlets.”  When I did my website, it took me quite a while to even find a pic of myself, and a crappy one at that.  Needless to say, I don’t have publicity photos on my website.  Do you?

This is a cautionary tale.  How many of you out there would have given your left arm to be the lawyer for one of these litigants in a case that grabbed the nation by the throat and damn near strangled the life out of each and every thinking human being.  Ah, to be famous.  To be on TV.  To be…unpaid. 

Would you have told your newest client, Mr. Birkhead, “Gee, Larry, I would love to represent you, but you will need to give me a $100 grand retainer before I could possibly take your case.”  There are some of us who have been there before, and who realize that there is no greater big black hole to suck up shocking amounts of time and expenses than a case like this.  But the allure can be overwhelming.  While Debra Opri may have done a fine job representing Birkhead, it all seems rather pointless now that the media circus has died and she finds herself out of pocket a ton of money for her cross-country and international travel, plus the fact that nobody remembers her name. 

Andrew Lavoott Bluestone at New York Attorney Malpractice Blog brings us this mind-boggling story of a man left in jail for 17 years after his conviction was reversed.  While Andrew’s take is from the legal malpractice side, as in why this guy’s lawyer never bothered to get his client released after he won the appeal, it is just too bizarre for words as to every aspect of the system.

Granted, one would expect the appellant’s attorney to take the lead in making sure his client got out.  But how does the state not know that the conviction has been vacated?  They sure know when a defendant is convicted.  Another one way street, apparently.

But the real kicker is that this poor guy was denied parole after the completion of his minimum sentence 3 times.  That’s right. THREE TIMES!  And they want us to trust them with the death penalty?

In Los Angeles v. Rettele, the United States Supreme Court (without bothering to hold oral argument) reversed a 9th Circuit decision that would have permitted a Caucasian couple to sue for a civil rights violation when police, executing a search warrant forced them to get out of bed, naked, and stand before the assembled police officers.  What makes this case special is that the targets of the warrant were black, not white.

Trained to be keen observers, after a few minutes, the police realized that they had the wrong people.  It seems that the house had been recently purchased by the new couple (can you say “stale” info in the warrant?) and the old residents (whose skin color apparently differed) had since vacated the premises.  Attuned to such nuances, it only took the cops a few pointed guns for a few minutes to realize the mistake. 

And so the Supreme Court held that the cops were protected by qualified immunity, harping on the word “reasonable”, as the cops had “no way of knowing whether the African-American suspects were elsewhere in the house.”  I have always enjoyed the rationale that the less cops know, the greater their authority to intrude. 

And for those keeping score, Justice Souter dissented.  Justices Stevens and Ginsburg concurred in outcome only.  Justice Thomas said nothing.

As I suspected, the cop posts would not end with a trilogy.  Bob Herbert of the Times brings us more details, following up on his column of last Sunday.  Most striking about this column is how mundane these interactions between police and minority youths can be.  He describes it as knee-jerk, the assumption that all black and Hispanic kids are presumed criminals, and treated as such without a second thought.

The description that gets me is when a cop questions a high school student who is trying to get into the subway, and asks her what the square root of 12 is.  When she can’t answer (as if the cop could), he proceeds to ridicule her as stupid.  Gratuitous denigration.  Why?  Why would anyone take pleasure from gratuitously ridiculing another person, no less a kid.  What sort of sadism drives the need to hurt others?

Herbert suggests that this problem could be swiftly resolved if only politicians had the guts to acknowledge it, confront it and demand that it end.  I believe that he is naive.  While directives from on high may impact the wanton discharge of weapons, a happenstance that all cops know will draw unwanted attention, it will not affect “death by a thousand knives.”  These are the daily indignities visited on minority kids in the ordinary course of the day.  Even Herbert can’t chronicle every one of these, and they will fade from our reality second after inflicted, though not from the memory of this children.

This is cop culture.  Cop culture is terribly misunderstood, even by many of us who function in the realm of criminal law.  There is an “us against them” mentality that is so deeply embedded in the cop mindset that it is not susceptible to political oversight.  It serves to create a bond between cops that is necessary for their safety, on the one hand, but isolates them from the people they are supposed to serve. 

Ironically, this does not mean that cops are inherently good or bad because of this cultural wall.  The same cop who abused this teenager might well be the cop who saves her from a burning building, putting his own life at risk.  Cops like to be heroes, and that’s a good thing.  So how do we square this good cop/bad cop thing?  While there is a tendency to see the problem as black and white (no pun intended), it is hardly the case and distract us from finding a real solution.

Until cops as a reference group stop seeing the non-cop world as being made up of skels and mutts, and start thinking of every person as being a real, living human being, nothing will change.  How can we inject this idealism into our police?  How can we drive this cynicism out of our police?  I don’t know.

From Lowering the Bar, Supreme Court Justice Clarence Thomas did not ask a single question from the bench during the last term of the Supreme Court of the United States.  In fact, during 68 hours of oral argument, Justice Thomas did not utter a single word.  Not one.

In contrast, Justice Breyer has spoken almost 35,000 words since January.  Speculation is that their internal rules only permit so many words to be spoken during oral argument, so as not to use them all up and deprive the advocates of a choice assortment of good words, whether anglo or Latin derived, and Justice Breyer is a bit of a “word hog” on the bench. 

Supporters of Justice Thomas contend that he feels no compulsion to emit sound from his lips “just to hear his own voice.”  This, of course, is a worthy, even admirable, position.  On the other hand, there is an element of curiosity that one would look for in a Supreme Court justice.  While Justice Thomas has said (thus proving conclusively that he has the capacity to speak) that he will ask a question if someone else has not already asked it, there appears to be very few instances in which his curiosity is peaked.  In fact, he has uttered a total o 281 words since records (identifying the justice speaking) have been kept in 2004. 

All of this, of course, begs the really important question.  Who has so little to do in their life that they choose to keep track of this?  Personally, I really want to know how many times the phrase, “with all due respect,” has been used.

Despite my apparent cynicism, Memorial Day has always meant something to me.  Having grown up in the house of a WWII combat veteran, Purple Heart and Bronze Star, I was reared on the stories of pain, sacrifice and honor in the name of our country.  A bit jingoistic, perhaps, but when honor comes at the price of a human life, it is something worthy of our remembrance.

The catch phrase today is that freedom is not free.  But what is this freedom that is worthy fighting, and dying, for?  To show our respect for those who gave their lives for freedom, those of us who remain should be willing to stand up for that freedom and defend it.  We don’t fight for a particular President.  We don’t fight for a political party.  We don’t fight for some transitory policy.  We fight for enduring freedom.  Don’t give up the fight.  Take a moment today to think about it.  Others have given their lives for it.  It’s not much to do.