Some observations from this morning driving my daughter to her drivers ed class:

Why is it that people don’t think the lines on the road apply to them?  There’s nothing I like better than coming around a curve to find an SUV straddling the double yellow lines because the driver just can’t manage to stay in between them.

Why is it that traffic laws don’t apply to construction workers and tradespeople?  No parking?  Not for them.  Block a thousand other people because you need to back that truck into someone’s driveway (rather than wait until after until the other cars have passed)?  Nope.  Put some dopey kid in the road who thinks he’s Diana Ross doing “Stop in the Name of Love” and he now has the authority to make the rest of the world do what he says?  I don’t think so.

Why is it that when someone actually drives the speed limit, the other cars are tailgating so close that you can see their fillings?  And then the horn beating, or illegal passing.  Was that car following the law interfering with your god-given right to break it?

School Bus Drivers.  No, you are not all by yourself cruising in your Ferrari.  You have bus full of other people’s children.  I’m sure you’re in a rush to get them to wherever they’re going, but I’m equally sure that their parents would like them to arrive alive.  Remember, one major crash resulting in the deaths of many children and people will start saying mean things about you.

The fact that you’re late for work (or your manicure appointment, as the case may be) does not mean that you are no longer responsible for the vehicular homicide of anyone in your way.  I still expect to make it home alive, even if it means that you will have to survive with last week’s nail polish.

Cell phone users.  It is not possible that you have that much to say, or can’t wait until you are not driving to say it.  You are the new drunk drivers.

Overheard, as per Arbitrary & Capricious,

“You know the problem with lawyers? It’s the 99 percent of them that give the rest a bad name.”

So would the rest of you guys cool it, please.

From the New England Journal of Medicine, When Doctors Become Terrorists.  A fascinating article by Simon Wessely, M.D. about both the history and motivations that drive doctors to be terrorists.  Definitely worth a read, as it’s not the sort of thing that would come onto a lawyer’s radar in the normal course of things, but important to break out of our assumptions about phsicians and terrorists.

And no disgusting pics of internal body parts with circles and arrows.

Yet another gem from Anne Reed at Deliberations, Is the Jury System Dying?  This comes from a speech by Judge William G. Young, Chief Judge of the District of Massachusetts, who expresses his belief that is jury trials, not Congressionally imposed guidelines, that provide the clearest protection of our freedoms.

Taking this issue from the lawyers’ perspective, it raises a serious issue that has disturbed me for some time.  Every lawyer I talk to, from prosecutor to defense, claims that they either just finished a trial or are about to start one.  The empty courtrooms, however belie these claims.  There just aren’t a lot of cases being tried, and that’s particularly true in federal courts.  So if cases aren’t being tried, why are lawyers constantly claiming to be on trial?

A few years back, I had an evidentiary hearing before Judge Kimba Wood in the Southern District of Ne York.  It related back to a New Jersey case, where the defendant had taken a plea to some relatively inconsequential felony offense and was given probation.  The problem was that he was on life parole in federal court at the time, and the Jersey lawyer neglected to mention that he was going to get banged by the feds despite his probation in New Jersey when he advised him, STRONGLY, to take the plea.

The Government put the Jersey lawyer on the stand.  He spoke eloquently of his many years of experience as a criminal defense lawyer, and his determination to advise his client, now my client, to take the deal.  On cross, I asked the lawyer to tell us how many felony cases he had tried to verdict before a jury in long and illustrious career as a criminal defense lawyer.  He was silent for a while.  He looked up at the ceiling, deep in thought.  He looked down at his fingers, toes and some other part of his anatomy that was concealed by the rail.  A few minutes went by in silence.

Finally, I asked him again, please tell us how many.  He looked at me with venom.  Very softly, he answered:  “None.” 

Criminal defense lawyers, like all trial lawyers, perceive themselves as the gladiators of the profession.  We are the ones who fight the real fight.  We don’t quibble in depositions.  We don’t prove our manhood in motions.  We stand before juries, armed only with our wit and knowledge, and stare down the most powerful government the earth has ever known.  At least that’s what we say we do.  But is it true?

My suspicion is that lawyers tell their friends that they are on trial, even when they are not and haven’t been for…well, perhaps forever, because they are embarrassed.  They want to be on trial.  They want to be the person they perceive themselves to be, but it’s just not that easy.  Who wants to admit that they strut around as a trial lawyer, but have never actually tried anything?  Even if they have, who wants to say that they haven’t tried a case in years?  The image and the reality don’t match, and the lawyer doesn’t want to feel like the only one in town who can’t remember what picking a jury is like.

For me, it seems like it’s almost impossible to get a trial started.  My last trial was in December, 2006.  My next trial was supposed to start last May.  It didn’t, since the people weren’t ready.  June; not ready. Same with July and the case was adjourned to September.  Will it start in September?  Who knows, but it makes it pretty hard to prepare (yet again), pump myself up and walk in rarin’ to go.

Another criminal defense lawyer friend of mine, who has tried many cases in his career, hasn’t tried a case in more than 3 years now.  Until I asked him when his last trial was, he hadn’t thought about it.  His initial reaction was, I think it was last year.  But with some prodding, he realize that years had gone by and he hasn’t tried a case.  He found the answer painful.  He wanted to try a case.  He loves trying cases.  But there was no trial to be had.  Not his choice; just the way things worked out.

I agree with Judge Young that jury trials are dying.  But from my chair, the disease was a conservative shift in political sentiment, elevating the desire for personal security over the promise of individual freedom.  This let to draconian sentencing policies stemming from simple legislative solutions to bolster re-election campaigns.  That led to snitches becoming the predominant form of proof, which resulted in a widespread belief that defendants’ chances of winning at trial were so small as to compel defendants, even innocent defendants, to plead guilty rather than roll the dice.

Where does that leave criminal defense lawyers?  In a position where they are no longer skilled at trying case, or so out of practice that they fear a real trial, or making up stories about trials that never were so that their brethren don’t look down their noses at them.  This is a dangerous situation, since criminal defense lawyers, like the New Jersey lawyer I crossed before Judge Wood, may someday realize that the threat of putting the Government to its proof is simply illusory.  They may pound their chests about trial, but they don’t have a trial in them.  And as soon as the Government smells fear of trial, there is nothing left to stop them imprisoning people at will. 

If it were up to me, we should be trying 75% of all criminal cases.  Judges wouldn’t penalize defendant’s for exercising their constitutional right to trial by whacking them on the backend with an enhanced sentence, and all those wonderful rights that the judge mentions during the course of the plea allocution (the ones that make it sound like nobody could ever be convicted after trial because of the enormous burden placed on the prosecution) would regularly see the light of day.  If we let these live in word only, then the jury trial will most assuredly die.  And criminal defense lawyers will be complicit in the murder.

That wise old sage, Bennett, takes young Shawn Matlock to task for being a conservative Republican criminal defense lawyer.  Matlock is okay with mandatory minimums, sentencing guidelines, the death penalty, and any other sacred cow that his hero, Ronnie Reagan, loved.  How can this be?

It’s not entirely surprising, or novel, to me.  Whenever the politics of law is discussed, the conservatives and the Republicans (two separate groups, mind you) come out from behind their defense lawyer facade to reveal that defense lawyer is more of a job than a belief.  They can perform the tasks, and some quite well, without believing that their arguments are necessarily valid.  As Bennett suggests, that’s not only rife with hypocrisy, but creates a strain on the credibility of the advocate.  Nonetheless, I’ve seen it done and done well.

My wife is far more liberal than I am.  I have a knee-jerk reaction to knee-jerk reactions.  Each issue is worthy of its own deliberation, and sometimes I fall on one side of the fence and sometimes the other.  I tend to be fiscally conservative, but socially liberal.  And yet even those pigeonholes don’t necessarily fit quite right.

Still, one has to wonder how anyone who defends people can support such simplistic and flawed concepts as one-size-fits-all justice, such as mandatory minimums and sentencing guidelines.  These aren’t conservative ideals, though they are certainly Republican.  These are just magic bullets meant to delude the populace that the Government is there to protect them.  Regardless of your politics, thinking people have a natural inclination to reject simple answers that fail to resolve real problems.

Am I calling Matlock simple?  No, my purpose is not to diss young Matlock, but rather to help him recognize that it’s fine to be conservative in outlook provided that you’ve reached your conclusions honestly.  Just because the Republican Party says so doesn’t mean he has to join in lock step. 

One of the primary misunderstandings of criminal defense lawyers is that we support crime and criminals.  Nothing could be further from the truth.  We are lawyers, not criminals.  We defend people accused of crimes; we do not defend crimes.  We believe in the Constitution, a document that President George Bush is sworn to uphold.  I guess that kinda makes us Bush-like, right?

When I read decisions by Justice Antonin Scalia, I often find myself in agreement.  Worse yet, I’m frequently impressed by his analysis and his intellectual integrity.  There are some horrific exceptions, but I cannot disdain Justice Scalia because his politics differ from mine.

One of the greatest moments in my life was when I was invited to be in the audience and green room at Firing Line with William F. Buckley.  His guest that day was John Kenneth Galbraith.  I was allowed to be near two intellectual giants, men whose brilliance and grace placed them high above mere mortals in my eyes.  Of course, these two individuals were diametrically opposed to one another on almost every issue under the sun.  It was exhilarating.

It gave me pause to appreciate the difference between varying points of view based upon reason, passion and sheer, unadulterated intellect.   The wit of their repartee was awe-inspiring.  I doubt I will ever hear two people lunge, parry and riposte like that again.  I wish I could play a video of this match here, but alas, it doesn’t exist as far as I know.  It would make the point so much better than I ever could.

So Mark and Shawn, you are absolutely allowed to be a criminal defense lawyer and hold whatever political beliefs suit you, with one proviso.  Shawn, you are not allowed to believe in something because Ronnie Reagan told you to.  You are not allowed to be Republican because your mommy and daddy were.  You are allowed to be whatever you want because you, yourself, believe in it and, after hearing both sides and giving each due consideration, you have reached your own conclusion. 

But once you do, and assuming that conservative beliefs prevail, you may want to consider whether representing someone who will go to jail for an extended stay under some misguided and rationally unsound theory, is consistent with your own intellectual integrity.  To do otherwise would deeply disappoint Antonin Scalia.  As for Ronnie Reagan, not to worry.  He was only an actor.

Chuck Norton, of Riding the Third Wave, says faxes should go the way of the dinosaur (via Law.com).  Having watched the growth of technology in the practice of law since an IBM Selectric III was the hottest thing going, and come to have a love/hate relationship with it all, I’m constrained to disagree.

Chuck’s argument is twofold.  First, fax machines are costly and mechanical, meaning that they take some work and money to keep going.  Second, with the advent and pervasiveness of email, there’s just no need to send a fax anymore.  In his mind, anyone who still sends faxes is just an old fart, stuck in his ways and demonstrating his inflexibility.

When the fax machine first surfaced as a necessary tool of business, I hated it.  It used to take a few days to mail a piece of paper to someone (recognizing that no one waste the money on overnight unless it was really necessary).  This meant that the few days you would have between sending and receiving a document gave everyone a breather.  You put it in the mail and were guaranteed not to hear anything further about it for at least 2 days.  That died with the fax.

Suddenly, someone faxed you something and you were expected to respond within seconds.  I had one jerk who used to fax me papers that included his demand that I respond with the hour.  Bite me.  I’ll respond whenever I’m damn good and ready.  But he was persistent, and an hour later, I would get another fax, and another.  The fax meant empowerment to pipsqueaks without enough to do.  My point is that I’m no fan of faxes.

But email has some inherent flaws of its own that, in my opinion, prevent it from ever replacing either a fax or a hard copy.  For one thing, when you send a letter by fax, it’s still a letter.  It has your letterhead on top, and a regularly structured body below.  We know how to address it, what the salutation looks like and how to cobble together a body with the formality, or lack thereof, that we intend.  Emails have nothing comparable.

Most emails begin “Hi Joe” and then rush into the message.  When you write “Dear Mr. Smith” in an email, it just looks silly.  The medium is too informal for that.  Same with the “very truly yours” at the bottom.  It’s just wrong. But I have no plans of sending Assistant United States Attorneys the same type of emails that I send my friends.  The feeling is all wrong, and that sends the wrong message.

Then there’s the signature.  What signature?  That’s the point.  It’s the “electronic” signature of typing out your name.  Well, that’s no signature.  It’s not a signature if you typed your name but didn’t actually sign it on a letter, and it’s no better in an email. 

There is always the pdf attachment, making the email merely the means of conveying the pdf of the letter.  One way of doing this is saving your letter as a pdf, though it will still lack a signature.  The other is scanning the letter to make a pdf out of it after it’s been signed.  But that means that I’ve now doubled my work, having prepared, printed and signed the letter, which now has to be scanned back into the computer, and attached to an email.  Why would I want to go through all these steps rather than just stick the letter in the fax?

Plus, there are a bunch of things we send that we are just passing along and didn’t create ourselves.  These things would all have to go through the prolonged scanning process, email process, etc., when they could just be faxed directly without any greater effort than dialing a telephone number.

So while I may be a technology troglodyte for eschewing the email as savior, I see some merit in the fax when compared to the alternative.  But I want to add my support for sending papers through the mail.  Remember when law firms used heavy weight Crane’s bond for their engraved letterhead?  Now it’s just computer generated images on copy paper.  And lawyer bond was used for motions.  Now copy paper again.  There’s no style to it anymore.  There’s no sense of pride in the handling of a fine piece of paper.  And don’t even talk about spellcheck.

So I vote to toss the crackberrys in the ocean, lose all the tech that has created immediacy when we need some breathing room, and stolen what little was left of the finer sensibilities of our profession.  But I’ll keep the email, just so I can pass along the really funny jokes to a few good friends.  I didn’t say it was a total waste.

The Wall Street Journal Blog, in a piece about Judge Lewis Kaplan’s dismissal of charges against 13 former KPMG executives, goes on to list the “going rate” for white collar federal defense:

So you didn’t believe me.  You didn’t believe Bennett.   How about Ken Lammers of CrimLaw, former good guy who has now turned to the dark side.  In his ode to the first corollary to Bennett’s Chainsaw, Ken tells of how the prosecution won because the defense lost.  Gave it away.  Seized defeat from the jaws of victory.

How many times must we keep writing about this?  Eliminate as many pointless conflicts as possible.  Give up nit-picky points that bother the client to keep him focused on the big picture.  The fewer factual disputes, prolix explanations, zebras (for the doctors who read this), the greater the likelihood that jury will understand and appreciate the fundamental factual dispute and resolve it in your favor.

It’s not that Ken wants to start losing trials and putting criminals back out on the streets.  He’s giving you a heads up.  Pay attention.  When I noted the difference between theory and reality, this is another example of what I was talking about. 

So just like some rookie prosecutor, unable to figure out a way around a solid objection giving up on the most important direct evidence he’s got, provides the defense with an undeserved shot at acquittal, going to trial with a strategy that misses the forest through the trees gives the prosecution a big W that they haven’t earned.  Don’t let that happen. 

Another misguided effort to control people is looming.  This time, the health police want to legislate chain restaurants by requiring calorie counts for their meals.  Ah, the slippery slope, as my foie gras will soon be marked by footnotes advising me of its health impact, not to mention cruelty to ducks.

Courtesy of Althouse, my favorite liberal with a mortgage, comes this story of good intentions gone awry.  Giving examples that fly in the face of common wisdom (proving yet again that while it may be common, it is hardly wisdom), we learn that the chicken caesar salad at Chili’s is worse than the sirloin steak.  So who goes to Chili’s for either?  Okay, that’s not the point.  The point is that we wouldn’t know this but for the fact that Chili’s tells us about the calorie and fat content.  So now we can make a more educated choice.  And isn’t that good?

As Ann Althouse concludes, there’s nothing wrong with restaurants telling us, the consumers, whatever we want to know because it’s a good marketing move on the part of these chains.  But to compel them to do so by law is a major shift of gears.  The message then is pure paternalism.  We are no longer responsible for our choices.  We cannot be trusted to make our own choices.  We require Government to tell us what to eat.

Last night, I watched a particularly insipid television show called Shaq’s Big Challenge (or something to that effect).  The idea was that Shaq, big time basketball star, would take a bunch of morbidly obese kids and help them to lose weight.  The subplot was that Shaq would then push his plan into their school to help other children to lead healthier lives, using his morbidly obese kids as proof that it can be done.

Wait a minute!  Schools don’t require gym anymore?  School lunches are less healthy than Chili’s?  Schools are out of the child health business?  But Government doesn’t see schools as a place to regulate, and would rather beat up on chain restaurants.  What’s wrong with this picture.

The most striking part of Shaq’s fat farm was the parents of these kids.  It’s not that they didn’t have a clue that a Big Mac 5 times a day would have an adverse impact on their children.  It’s not that they didn’t notice that 12 year old junior was tipping the scales at 227.  It’s that they couldn’t manage to be a parent and deal with the horrendous situation that gave rise to their morbidly obese child.  The parents sucked.  But nobody had the guts to say so.  Not even big man Shaq; while he and his co-stars were happy to beat up on the kids for living a disastrously unhealthy lifestyle, the parents (whose commentary proved that they should be doing commercials for condoms) went untouched.

If the health police, the ones who wake up every morning with absolute certainty that they know better than anyone else how we should live our lives and want to ram it down our throats, need some object of their control, go to the source.  But leave the rest of us out of your control-freak grasp.

Please understand, I am not antagonistic to good health.  Not at all.  I am against the use of law to control every facet of human behavior.  One of the great pleasures of being alive is to make the occasional poor choice because…well, just because.  I don’t need to have a good reason.  I don’t need to be able to explain it to anyone’s satisfaction.  I take responsibility for my life, and in case Shaq (Hi Shaq!) is reading this, for the lives of my children.  I do some things wrong.  But it’s my life and those are my choices.  I will take the weight.

Shifting responsibility away from those who should bear it is a disincentive for individual responsibility, and hence individual freedom.  Parents are no longer responsible for their obese children; Chili’s is.  As we continue to travel down the path of passing laws to control poor choices, we will ultimate find ourselves living in a world without color, beauty or passion.  Sure, we may be healthier (though I have some serious doubts that the law of unintended consequences won’t put the cabash on that), but I’ll be damned if I have to eat tuna fish with a piece of bibb lettuce for every meal for the rest of my life.  And pass the foie gras before my Chateau D’yquem evaporates.

Summertime, and the living is easy.  Anne Read at Deliberations not only made the effort to pick out our summer reading, but read it for us and tells us what we need to know.  This can’t be said enough, if you don’t read every piece Anne writes, then you don’t deserve an acquittal.

Parsing Anne’s light summer reading (notably missing is Vanity Fair and GC, however), she brings us “Statistics in the Jury Box: How Jurors Respond to Mitochondial DNA Probabilities,” David H. Kaye , Valerie P. Hans , B. Michael Dann , Erin Farley and Stephanie Albertson, from the Journal of Empirical Legal Studies.  I know, next to Playboy, what kid didn’t drool over this.

I had long believed that the dangers of DNA evidence were overwhelming.  As defense counsel, how could we overcome the DNA expert who would tell the jury that our client was guilty with 99.99982% probability?  Sure, we would attack collection and contamination, but that percentage was so strong that it was all the jury would hear, right?  Wrong!

Although some jurors showed susceptibility to classic fallacies in interpreting conditional probabilities, the jurors as a whole were not overwhelmed by a 99.98% exclusion probability that the prosecution presented. Cognitive errors favoring the defense were more prevalent than ones favoring the prosecution.

That jurors were susceptible to “classic fallacies in interpreting conditional probabilities,” which of course is how the authors try to curry favor with me by acknowledging that the jurors, being clueless, just accept the conclusion by default, comes as no surprise.  Some jurors, the compliant, will invariably find the idea of thinking too taxing.  They will blindly accept whatever an “expert” tells them.  When there are two experts, either they shut down or their heads explode.  This can get very messy.

But on the other hand, there’s the good news.  “Cognitive errors” are more likely to favor the defense than the prosecution.  Hooray!  For those of you who view this as an unrewarding benefit, get over it.  Remember the old adage, if you can’t dazzle them with brilliance, baffle them with bullshit.  Take your good points where you find them.

It reminds me of my old partner, Howard Meyer, who won trials where he didn’t have a chance in the world.  I would watch him close, and listen to him spout some of the most ridiculous stuff I’d ever heard.  But I was wrong, not him.  He understood what jurors, people who didn’t live in the well of a criminal court, thought and, more importantly, didn’t think.  When he was confused, he knew they were confused.  He played on that confusion.  He used it to generate ever greater confusion.  And then he turned that confusion into doubt.  He exploited the limitations of a trial to educate jurors, and then exploited any misunderstanding.  It was really something marvelous to watch.

We often complain that jurors just don’t get it.  This, apparently, is true of DNA as well.  So rather than fear it, use it.  The prosecution’s witness will love to talk about the science of DNA, and given enough rope will either bore or confuse the jury.  That’s the hole you seek.  The peril of becoming too smart about DNA is to separate ourselves from our jurors, and lose our ability to appreciate how this science conflicts with everyday misunderstandings.  By the way, this is another “common sense” opportunity, to turn the prosecution’s appeal on its head and smack them with their own effort to fudge the evidence.

To learn more, read the entire journal article.  I plan to, just as soon as I finish GQ and Vanity Fair.