As has been widely reported, the Lori Drew/Myspace trial is over and the verdict is in.  Guilty of three misdemeanors of intentionally accessing a computer in violation of the terms of service.  Not guilty of one felony count of intentionally accessing a computer for the purpose of committing a criminal or tortious act, in this case intentional infliction of emotional distress.  Orin Kerr at VC provides a short oversight of the verdict.

By definition, a misdemeanor carries a maximum sentence of one year incarceration.  By guidelines and practice, this is likely to mean that Lori Drew will receive a sentence of probation, a split sentence at absolute worst.  For those who hoped that this prosecution would serve as a substitute for a murder charge, this will be terribly unsatisfying, bordering on reducing this prosecution to a cynical joke.

While I’ve spent a fairly good amount of time following this case, I deliberately ignored the trial itself.  For me, this was never about what Lori Drew did or did not do, but about what the government was doing to prosecute her.  Distancing oneself from the particulars of any specific case provides a different perspective.  That was the perspective that concerned me, rather than the outcome for Drew herself.  As Dean Steward showed during the trial, she wasn’t as evil as she had been painted, which is reflected in the acquittal on the felony count,  On the other hand, what she did to a 13 year old girl was still outrageous.  She gets no sympathy from me.

Now that Judge George Wu has gotten his verdict, one that has left him with a mess on his hands of his own creation, the ball is back in his court.  There were motions to dismiss the indictment, and then more briefs at his request, all of which produced nothing up to now.  It bothersome when a judge demands that you drop everything to produce a brief in a few days, then fails to reach a timely decision.  What was the need for such immediacy if he’s not going to return the favor by deciding?

The obvious retort is that a jury verdict of acquittal removes the burden from the judge’s shoulders of deciding hard issues.  Hey, she’s not guilty, so there’s no need to decide with section 1030 of the Computer Fraud and Abuse Act should apply.  It’s moot.  It’s also an abdication of responsibility.  We don’t pay judges to dodge hard questions, or ask a jury to do his dirty work.

So Judge Wu reserved decision.  They jury only partially bailed him out, but by delivering the verdict it did, has provided a far cleaner and clearer palette for Judge Wu.  The issue is now squarely before him, and it’s the issue that I, and those who have similarly questioned the government’s attempt to manipulate this case to fall within a law never even remotely intended for this set of circumstances,   But it’s no longer about the government’s actions; It’s now about what the judge will do.

Gideon argued the other day, in response to Dan Solove’s question as to why Judge Wu fell down on the job, that the problem was intestinal fortitude.  An apologist would argue that it’s judicial modesty, that it’s proper (and common) for a judge to avoid making rulings that may prove to be unnecessary.  It is neither proper nor common, though it does happen with unfortunate frequency.  The role of judge is to make rulings of law when issues are ripe for adjudication and presented for determination. 

H. Dean Steward moved to dismiss.  Issue was joined and fully briefed.  Judge Wu sat on it, pushing the case to trial instead of doing his job.  That subjected a defendant to a trial that could have been avoided in its entirety by a decision on a dispositive motion.  This is an improper distribution of the relative burdens.

No person should be put on trial if the accusation against her fails to constitute a crime under the law.  Trial is a nightmarish experience for any defendant, and that’s why a defendant moves to dismiss an indictment before trial, to avoid this experience if the allegations, even if proven, do not constitute a crime.  It is a threshold issue, and it requires a threshold determination.

Judge Wu has now tried judicial roulette, to see if the jury would remove the heavy burden of deciding the reserved motions so he wouldn’t have to.  He lost.  I agree with Gideon that it’s past time for the judge to do his job.  And having dropped the ball once, I hope he won’t do so again. 

With so many people watching the case, and already way too many embarrassing moments for the legal system, it’s time for Judge Wu to earn his keep.  Whether Lori Drew does probation makes little difference to most of us.  Whether Judge Wu does his job is critical.

While I’m reasonably certain that this happens to everyone, not just lawyers, my familiarity with my own kind and enlightened self-interest compels me to make this point with lawyers in mind.  In my office, whoever is closest to a ringing telephone at any given moment picks it up.  Often, that’s me.

So when a call came in from a company called Cyberlink Technologies, I had little expectation that it was going to be of great interest to me.  Nonetheless, I answered the phone. 

Caller:  Attorney Greenfield?

Now I realize that in some parts of the country, lawyers like to be addressed as “Attorney” so and so.  Not in New York.  Not me.  When someone asks for “Attorney Greenfield,” no good can come of it.

Me:  Who is this?

Caller:  This is Timmy (I don’t recall the name he gave me, so I made this up). Is this Attorney Greenfield?

Me;  What is this in reference to?

Caller:  Scott, is that you?

Scott?  Now we’re best friends?  And no, I didn’t forget that Timmy has yet to tell me why he’s calling.

Me:  What is this in reference to?

Ironically, Cyberlink Technologies is a website developer and SEO optimizer.  Whatever made them target me, of all people, I can’t explain.  I am definitely not a likely candidate for their services.

Caller:  I want to give Attorney Greenfield a referral list of lawyers who. . .

The rest of what the caller said doesn’t matter.  At this point, it’s painfully clear that this telephone call is not something that I’m interested in pursuing, and so I interrupt and say, “I’m not interested.  Good bye.”  Up to this point, there’s absolutely nothing unusual about this exchange, and no doubt every reader who’s made it this far will say to himself, “big deal, this happens every day.”  Quite true, but what happened next doesn’t.

After hanging up the telephone, another call came in within seconds, this time from an anonymous telephone number.  Having already been disrupted from my work, I let it go to voicemail.  When I later checked the message, this is  This entry was posted in Uncategorized on November 26, 2008 by SHG.

Of all the lawyers who could find themselves in this position, Ben Kuehne is probably the one you would least expect.  Under indictment for having been retained by Roy Black to vet the source of legal fees from Fabio Ochoa, the government is now under scrutiny for it’s prosecution.

Via Miami criminal defense lawyer Brian Tannenbaum, Southern District of Florida Judge Marcia Cooke held a hearing on the defense motion to dismiss the charge under 18 USC §1957, which makes it unlawful to engage in a monetary transaction in property derived from unlawful sources. 

Consider the implications of this for private criminal defense lawyers.  We represent people accused of crimes.  Sometimes, our clients are guilty.  They pay a legal fee to us for our representation.  Sometimes, the fee is derived from the crime that forms the reason for their needing us.  I know, but it can happen.

Based upon most of 18 USC §1957, it would seem that the government will need to build a great big prison just to hold all us criminal defense lawyers.  After all, accepting legal fees derived from unlawful sources is an occupational hazard.

But Congress, in its wisdom (a painful thing to write), recognized that the basic crime to be addressed in §1957 could have some slightly deleterious impact on the representation of criminal defendants, and so included subdivision (f)(1).

the term “monetary transaction” means the deposit, withdrawal, transfer, or exchange, in or affecting interstate or foreign commerce, of funds or a monetary instrument (as defined in section 1956 (c)(5) of this title) by, through, or to a financial institution (as defined in section 1956 of this title), including any transaction that would be a financial transaction under section 1956 (c)(4)( of this title, but such term does not include any transaction necessary to preserve a person’s right to representation as guaranteed by the sixth amendment to the Constitution;

Congress specifically excepted any transaction necessary to preserve a person’s right to representation.  So Ben tips is hat, thanks the judge for her time and goes out for a cocktail with Roy to celebrate reason prevailing?  Not so fast.

With a hat tip to David Markus on behalf of the NACDL, which provided amicus support, and running description of the hearing at Southern District of Florida Blog, we learn that one branch of our government is trying to convince another branch of our government that a third branch of our government should be ignored.

Judge Cooke started the hearing by asking the prosecutor to present his argument on the defense motion to dismiss because she wanted to know if he was really taking the position that 1957(f) was meaningless. The prosecutor answered YES! The prosecutor took the position that as a matter of law the motion should be denied because 1957(f) does not afford any protection to lawyers. He then argued that as a matter of fact, Kuehne’s actions were not “necessary” to represent Ochoa and therefore not covered by the statute. And finally, he argued that if the judge disagreed with 1 & 2, she should at least present the question to a jury because 1956(f) is an affirmative defense.

Well that doesn’t sound good at all, so let’s put it under the microscope and see how it bears out.

Proposition 1:  §1957(f)(1) is meaningless. 

It’s hard to stifle a chuckle on that one.  But silly as the proposition is, the defense took the position that  it provides absolute protection to lawyers for taking a legal fee under 1957, which presents a problem as well, that being the very problem that Roy Black found himself in when he hired Ben to vet his legal fee.  What, one wonders, if the lawyer was fully aware that he was receiving tainted funds and used the escape clause of subdivision (f)(1) to actually launder money? 

Kuehne’s lawyer, John Nields, offered the only reasonable response to this dilemma: The lawyer could be held criminally liable for his wrongdoing under any number of the overlapping criminal laws of our nation, just not 1957.  Nields wins.

Proposition 2:  Kuehne’s actions were not “necessary” to Ochoa’s representation, and therefore don’t deserve 1957(f)(1) protection.  

This is a more nuanced argument then would appear on its surface.  Bear in mind that Ben Kuehne was retained by Roy Black, not Fabio Ochoa, to vet the legal fee that Ochoa, reputed head of the Medellin cartel, sought to pay Black.  Ben received almost $200,000 to count the bills, which should give you a decent idea of how Black was doing on the case.  But his job was not to defend Fabio Ochoa, but to protect the fee that Black was to receive from Ochoa from potential forfeiture.  In other words, Black didn’t want to get stuck on the case without getting paid, which I consider to be a perfectly reasonable position.

But what does this mean for Kuehne’s protection under 1957(f)(1)?  Is he entitled to protection for preserving a defendant’s right to representation under the 6th Amendment, or was he serving some other purpose?  While there are arguments that could go either way, it strikes me that Ben Kuehne’s involvement bore a direct causal connection to Fabio Ochoa’s exercise of his 6th Amendment right to counsel.  Without assurance that the fee paid would not be subject to subsequent forfeiture, Roy Black, Ochoa’s counsel of choice, would not have accepted the retainer and Ochoa would have been denied counsel. 

That Black used another attorney, Ben Kuehne, to perform the function of ascertaining the source of the fee, is irrelevant, and Ben is clothed in the same protection provided Black, as he was performing a critical function in the fulfillment of Ochoa’s exercise of his right to counsel.  Defense wins.

Proposition 3:  Whether Ben Kuehne should be protected under §1957(f)(1) is a question for a jury, as it is an affirmative defense.

Let’s give this one a thought for a second.  A criminal defense lawyer gets paid a fee to defend the accused.  The government indicts and prosecutes, and there’s nothing to be done about it until the case goes to trial, whereat the lawyer can assert the defendant’s constitutional right to counsel as an affirmative defense.  What’s wrong with this picture?

This is just sheer silliness, and would place every criminal defense lawyer on trial in essentially every case, awaiting their chance to proffer the affirmative defense that they are lawyers.  This would be the end of the existence of criminal defense lawyers, which might be applauded by some but would make for terrible backlogs in criminal courts everywhere.  This one doesn’t deserve much analysis.  Defense wins.

So there you have it, my fair and balanced analysis of the defendant’s motion to dismiss and the government’s opposition.  If any lawyer is deserving of the “fullest” consideration of the court, it’s Ben Kuehne.  Let’s see what Judge Cooke has to say about it.

Now that I’m free from the chains of having to please my masters, something I obviously didn’t do very well, I can address the continuing onslaught in the battle between reason and the almighty dollar.  As Colin Samuels at Infamy or Praise twittered yesterday, are new solo practitioners to be taught that their “gap” is in skills or marketing?  The answer turns on who’s doing the answering.

A paper circulated yesterday that high levels of intestacy (that’s people who die without wills for those of you who slept through trusts and estates in law school) are due to inadequate lawyer marketing.  This paper couldn’t have come at a more propitious time, as it makes a very clear point on the lawyer marketing front.

Seizing the opportunity, Mark Merenda embraces this paper to show that marketing is not merely good for the pocketbooks of those who sell marketing services to lawyers, but in fact a public benefit.

In light of the recent brouhaha between me and another blogger, I thought this article in the Elder Law Journal was interesting (tip of the hat to Jeremy Richey). It says, in effect, lawyers aren’t doing enough marketing of wills, and that is a disservice to the public:

From the abstract :

Disappointing rates of intestacy may be as much a business problem as a legal one. In this interdisciplinary law and business article, the authors investigate whether widespread intestacy may be attributable in part to the failure of the legal industry to market wills effectively. Although attorneys can market within the boundaries of the Model Rules of Professional Conduct, the majority do not take full advantage of the range of permissible marketing strategies. This Article suggests that attorneys learn the basics of marketing strategy and rely on guidance from marketing experts in order to structure effective programs to educate the public on will drafting services. By integrating both law and business, estate planning lawyers can better serve current and future clients.

Lest there be any confusion, I of course am “another blogger.”  The paper relied upon, written by Michael McCunny of CEPHEI Consulting, LLC and Alyssa DiRusso of Cumberland Law School at Samford University, begins with the assertion that too many people are dying without wills, which I will assume to be valid and agree is problematic.  While not dying at all might be a better solution, if one has to die, testate is better than not.

The paper, according to the abstract, contends that ending widespread intestacy could be helped by using marketing to better educate the public.  Here’s where we get into trouble. 

The underlying assumption is that lawyers are and will market, without regard to anything else.  How do we know this?  From the clause, “the majority do not take full advantage of the range of permissible marketing strategies.”  The paper thus pursues the issue by arguing that if lawyers are going to market anyway, at least do so in a way that does something useful, like educate the public.  How do we know this?  From the clause, “[t]his Article suggests that attorneys learn the basics of marketing strategy . . . in order to structure effective programs to educate the public on will drafting services.”

This is the difference between reality and marketing.  A vulnerable lawyer, hungry for business, would glance at this post and be seduced by the idea that he can justify a marketing campaign because he’s really providing a public service.  That’s not what the paper says, nor the reasoning the suggested.  Indeed, even the mere non-critical repetition of this paper is dubious.  Just because someone writes something doesn’t make it true, unless one is so deeply inclined to embrace it because it comports with one’s financial interest.

So why would a marketer give this paper such unquestioned love?  Because of the highlighted portion of this sentence:

This Article suggests that attorneys learn the basics of marketing strategy and rely on guidance from marketing experts in order to structure effective programs to educate the public on will drafting services.

Naturally, lawyers (not being marketers) need the help of marketing pros to devise effective programs.  It always seems to come back to the same thing.  As Michael McCunny is a business consultant, it’s hard to fault him for pushing his own agenda, particularly when he makes a good point:  If you are going to market, at least do something useful for the public.  But this point doesn’t have anything to do with the preliminary question of whether lawyers should engage in advertising campaigns in the first place, and what impact such campaigns have on the dignity and professionalism of lawyers. 

There is one glaring omission in the papers point.  There is absolutely nothing to suggest that lawyers cannot educate the public without engaging in an overt marketing campaign.  I stand 100% behind the idea that lawyers should educate the public, which happens to be an ethical responsibility as well.  There is no requirement that this be done by television commercial, however.  And even if television commercials were the most effective way to do so, why not have the Trusts and Estate Bar Association put out a public service announcement about wills to fight widespread intestacy?  Would it be because there are already so many lawyers already hocking their wares?

This marketing effort to market marketing might be sufficient to seduce the hungry lawyer alone, but marketers apparently tend to travel in packs for protection.  A comment to this post by Ben Glass, who just happens to have his own blog called Great Legal Marketing for Personal Injury Attorneys, readily agrees that lawyer marketing is really for the benefit of the public.

Mark: you are right and this is something that other guy who was ranting about marketing will never get. Most of the ethical rules around the country start with a preamble about a lawyer’s duty to educate the public and make the news about the availability of legal services known. Its a duty to market effectively.

Now it’s your duty as a lawyer to market.  He’s right.  I don’t get it (yes, I’m “that other guy who was ranting”).  I must be particularly bone-headed, because I am unaware of any ethical rules that start with the preamble that lawyers have a duty to market.  Of course, if a hungry lawyer, one who needed business but was conflicted by his desire to start up a practice but maintain a modicum of self-respect because he hoped one day to hold himself above late-night cable TV advertising, was to be fed this ethical duty, would he get it?

But Ben is gracious in his view, acquiescing to the notion that every lawyer may not favor being a top-notch marketer.

Hey, some will disagree with you and me and some will never get it.. that’s OK too, the world is big…everyone’s entitled to their opinion even if they show the shallowness of their thought by speaking in such disrespectful tones.

While the connection between shallowness and my refusal to continue to tolerate the multiple attempts to use my blawg to push the marketing agenda may be suspect, I appreciate that Ben concedes that I’m allowed to differ with his view.  And I certainly appreciate yet another opportunity to demonstrate the insipid rationalizations and logical twists that shift money from the pockets of hungry lawyers to the pockets of seductive marketers.  I hope I’ve done so this time with sufficiently respectful tones to meet Ben’s approval.

Update:  I took for granted that the basic premise, that intestacy problem, were a product of lack of public education.  Carolyn Elefant, on the other hand, didn’t.  In her Legal Blog Watch post, Carolyn suggests that this whole “marketing to serve the public” claim is a red herring.

As for me, I disagree with the underlying premise that the high level of intestacy is attributable to lack of education. In this day and age, most people realize that it’s a good idea to have a will, just like it’s a good idea for women over the age of 40 to have an annual mammogram or for men to undergo checks for prostate cancer. Yet often, even the best-educated don’t take these actions, either because they flat out don’t have the money, or figure that they don’t have enough at stake (i.e., a large enough estate or family history of cancer) to justify the time and cost associated with preventative measures. Lawyers can educate the public about wills all they want, but until they can actually prepare wills inexpensively and conveniently, many people will continue to forego them.

So maybe marketing isn’t a panacea?

Had it not been for Marc Randazza, I wouldn’t have even known this tidbit, but apparently the 2008 Weblog Awards for Best Law Blog has already opened and closed nominations.  Who knew?

Apparently, nominations closed last Friday, November 23, after having been extended from an initial ending date of November 19th.  They opened, judging from the first post, on November 3rd. 

While there are some fine blawgs nominated, the pickings are rather sparse this year.  This might be because the number of people aware that nominations were open was equally sparse?  In any event, many of my favorites blogs were not nominated, ranging from Anne Reed’s Deliberations to Mark Bennett’s Defending People to Eric Turketwitz’s New York Personal Injury Blog, and a bunch more along the way.  I mean, seriously, without A Public Defender, how can this be taken seriously?

I tend to support some of the smaller niche law blogs, the sort that are not ordinarily on the bigger radar and seen by the millions of readers that some of the more prominent blogs enjoy.  It’s not that they win the Best Blog Award, but that it puts them on the radar of people who could learn a lot from them, come to appreciate their humor and insight, and perhaps find something that is worth their time.  I would like to nominate them.  Unfortunately, I can’t.  I missed the window of opportunity.   Game over.

It strikes me that the Weblog Awards, to merit much credibility, really need to announce the fact that nominations are open in a more effective way.  Obviously some people knew to nominate blogs, but I read a bunch and never saw anything about it.  Maybe the rest of you were well aware and I’m just out of touch.  In any event, it would have been nice to know and be in a position to participate.

So Weblog Award people, if you happen to stumble upon this post, I would appreciate it if you can add in a few more law blogs.  No, it won’t make this year’s award more credible, but it will definitely make me happier.  And besides, I think they deserve it.

And next year, can you let somebody know before you close the nomination?

I was the first “professor” of Solo Practice University  announced.  Now I’m the first former professor.  I am, if nothing else, full of firsts.

Following Mark Merenda’s resurgence to hype lawyer marketing, and my response, I realized that I had a problem.  You see, Merenda, though not a lawyer, was also a “professor” at Susan Cartier Leibel’s Solo Practice University.  In light of my feelings on the subject, it struck me that this might not be a good fit.  I was not comfortable being in the middle of marketers, telling new solos to put on red lipstick and sell themselves, as if this was the sine qua non of being a solo practitioner.

I decided to contact Susan and tell her that I thought it best that I withdraw from SPU.

Upon receiving my email, Susan urged me to speak with her first.  She implored me not to make a hasty decision, and to sleep on this for a while.  I felt very badly about putting Susan in the position of losing someone in her newborn venture, not because I was indispensable but because it created controversy where there should be none.  So I agreed to wait.

Apparently, a good night’s sleep can work wonders, as Susan emailed me the next day to tell me that she had received emails from the marketing “professors” at SPU, who feared that I might “tarnish their reputations” by a “vicious attack,” as I did Merenda.  Because of this, Susan was pressured to toss me out on me ear.  And so she did.  Susan noted that it was not merely because they were pressuring her, but because my attack on Merenda was so vicious and personal.  From Susan’s email:

But the fact is, I don’t agree with the personal and vicious attack (and it was vicious) even though it was your own blog and even if I didn’t know Mark.  If you had no readership and the comments died on the vine, maybe it could have disappeared as something unfortunate.  But the very fact you have the readership you do it’s only gotten bigger and taken on a life of its own, spawning new blogs posts about it, then getting retweeted to a wider audience creating further commentary (none of which support the ‘personal attack’ and it’s OK because it’s my blog) Pandora’s Box can’t be closed.

I don’t begrudge Susan’s view that my response to Merenda was wrong, notwithstanding her overnight change of heart.  But I never asked for anyone’s approval of what I write here, and have no intention of subjecting my comments to Susan’s approval for the benefit of SPU.  That was never the deal.

The dichotomy between practicing lawyers and marketers has grown immensely over the past few years, particularly in the blawgosphere and internet generally.  I understand that some lawyers feel the need to market themselves, and that they will justify and defend their decision because without marketing they sit alone in their office with no one to talk to.  It can get very lonely when you can’t attract a client based on the quality of your representation.

Was I so vicious to Merenda, who embodies one of the worst forces destroying the profession?  Maybe, but I can live with that.  I never became a lawyer to please others, and didn’t start this blawg for self-promotion.  As I told Susan during our conversation, I believe that the legal marketing trend is one of the most destructive forces to the legal profession there is, and I am against it, will rail against it and will, in the course of my teaching at SPU, explain that lawyers do not need to demean themselves to make a living.  They need to know how to be great lawyers.

What is unfortunate is that the concept that Susan is introducing at SPU is a great one, filling a huge void in legal and practical education.  But there remains a question of what that gap is.  Is “going solo” all about shrugging off one’s dignity and doing whatever you have to do to get a client?  Is it about learning the substance of specific practice areas, the unique issues that arise and how to deal with them, as well as how to establish oneself as a top quality lawyer?  Then, clients come to you instead of you having to walk the streets wearing a sandwich board.  Will this really be Solo Practice University, or Solo Marketing University?

An interesting aside, which is worth noting only because of what it shows about the various approaches, is that my way of addressing a conflict with the marketers was not to demand that Susan get rid of Merenda, but to withdraw myself.  The marketers, on the other hand, whined that Susan had to get rid of me, because I might viciously attack them.  As one would expect, they pushed Susan to save them from the evil Greenfield who might tarnish their reputation by telling the truth, the thing marketers fear most.  Make what you will of this detail.

So, for those who were interested in starting a solo criminal practice, you will have to find instruction from someone else.  I won’t be there to help you figure out how to do it, or to decide what type of lawyer you really want to be.  There may not be anyone in my “professor” seat willing to take the chance of contradicting the many sweet voices telling you that it’s okay to put on the lipstick and offer yourself for sale. 

Still, I can offer this one word of caution.  It’s a lie.  Everybody doesn’t do it.  Marketers make their living off you believing that it’s okay, that the law isn’t a profession but a business, and everybody in business sells, sells, sells.   Other lawyers who do it want you to do it too, so they won’t feel as dirty and ashamed about themselves.  But great lawyers don’t walk the streets in search of clients. Envision where you want to be ten years after you’ve gone solo, then consider whether the best way to get there is to take the high road or the low road.   Chose wisely. 

With all the happy marketers on board at SPU, I’m sure they will instruct you well on how to package a lawyer with a pretty red ribbon.  What they cannot teach you is how to make sure there is something inside the box.  That’s not what they do.

So, today I relinquish my SPU faculty badge and wish Susan and Solo Practice University the best in helping lawyers to strike out on their own.  And to those who might otherwise have been my “students”, never forget that you are members of a profession.  You can maintain dignity and professionalism, and still thrive as solo practitioners.

As anticipated, the Willacy County, Texas, indictments of Vice President Dick Cheney and former Attorney General Alberto Gonzalez are not going the way things usually do.  And District Attorney Juan Angel Guerra, whose term of office is about to expire, is not happy about it.  From USA today :

A county prosecutor who brought indictments against Vice President Dick Cheney, former Attorney General Alberto Gonzales and others pounded his fist and shouted at the judge Friday about special treatment for high-profile defendants as a routine motions hearing descended into chaos.

Willacy County District Attorney Juan Angel Guerra, who is accusing the public officials of culpability in the alleged abuse of prisoners in a federal detention center, asked Presiding Judge Manuel Banales to recuse himself. Guerra has complained about Banales’ handling of the case.

Special treatment for Cheney and Gonzalez?  Who would have thought?  Regardless of the validity of the accusations handed up by the grand jury, which I’m informed by those far more familiar with the laws of the Republic of Texas may have greater merit than many would expect, the simple fact that they are defendants in a criminal proceeding in a Texas courts strikes me as a pretty good reason for these two, particularly since they are public officials, to show the court a little respect.

So what did Cheney and Gonzalez have to say about all this?  Who knows.  They didn’t bother to appear.  According to the story, they were required to be physically present in the courtroom to be arraigned on the indictment, but these are not the little people, like your or I, who must show respect, not to mention, adherence to the mandate of a court.  These are important people, for whom a personal appearance in Willacy County means nothing. 

I make no prediction about the merit or outcome of this prosecution.  I do, however, find this to be a glaring example of the differences between life at the top of the pecking order and life for the rest of us.  Had the defendants not been prominent, and had the defendants neglected to appear, the first words out of a judge’s mouth would have been “warrant ordered.”  Judges are not inclined to allow defendants to decide for themselves whether they feel like appearing to answer criminal charges.  Usually.

DA Guerra’s reaction is described in a way that makes him seem, well, fairly unhinged.  He may well be, given the problems he had when he was under indictment, and his comment to Judge Banales suggests that his motives may be less than pure.

“Now all of a sudden there is urgency,” Guerra shouted [at Judge Banales]. “Eighteen months you kept me indicted through the election.” The charges against Guerra were dropped last year. Guerra lost re-election in the March Democratic primary.

Then again, even people who are paranoid have enemies.  There is no doubt that the Vice President and former Attorney General are being treated differently then other defendants, given benefits, courtesies and latitude that no ordinary defendant would enjoy.  It’s good to be important, isn’t it?

For most people, the notion that some sparsely populated backwater county in Texas can haul some of nation’s most important public officials into court is a joke.  These people will agree that defendants Cheney and Gonzalez need not bow to the will of the Willacy County grand jury, or district attorney.  They are above this sort of nonsense.

For others, the idea that this is a nation of laws, not men, will change the equation.  From the mightiest to the weakest, we are all subject to the law and the mandate of the court.  Far too mean unimportant people know what it means to be indicted, and now they will know that it means something entirely different when it happens to the high and mighty.

This is the lesson being taught in a courtroom in Willacy County by Vice President Dick Cheney, former Attorney General Alberto Gonzalez and Willacy County Judge Manuel Banales.  Some pigs are definitely more equal than others.

Jurors are instructed by the judge not to discuss the case with anyone until after a verdict is returned.   It doesn’t seem to a terribly unclear instruction, but given the wealth of opportunity to “interact” with others, known and unknown these days, perhaps the word “discuss” no longer covers it.  At least it didn’t for a juror in Burnley Crown Court in Lancastershire, England, according to this post at The Social on CNet, linking to that stalwart of fine British journalism, The Sun.

A British woman has reportedly been kicked off a jury for posting a “note” on Facebook asking her friends what they thought of the trial.

She was given the boot after the court received a tip about the posting.

What was she thinking?  Likely what so many jurors before her were thinking, that it’s hard to sit in judgment of another person.  Sure, it’s very easy to have the answer when you have no responsibility for the consequences of your actions.  We’re all brilliant when our opinions don’t matter, but it’s an entirely different ballgame when your vote, guilty or not, actually matters.

But that fails to explain the juror’s choice of where to turn for help.  A poll on Facebook?  Well, that’s something Oliver Cromwell never considered.  From the allfacebook blog :

The woman was torn regarding the court case involving child abduction and sexual assault. The note published on Facebook was set as public, meaning any Facebook member could see her poll. Though I can’t imagine that even a private note would have been the ethical thing to do. Had the note been private, however, perhaps the woman wouldn’t have gotten caught and subsequently kicked off the jury.

We’ve now turned the corner from how to get off a jury, the typical question for those who dread being compelled to do their civic duty, to the new question, how to post a poll on Facebook and not get caught. 

There are no doubt going to be new, unanticipated problems with the advent of “social media,” the gentle sounding name for creating a fictional life online with an unlimited number of people you’ve never met.  Our fear in the past was that a juror, despite being instructed not to discuss a case, did so with their spouse, friend or next door neighbor.  Now it’s essentially the rest of the online world. 

Thankfully, this one opened her poll to the public, and was thus exposed.  How many thought better of making it public, and polled only her closest online buddies we will never know.  By creating this international controversy, it puts the problem on the radar of all judges and lawyers   It’s clearly time to change the instructions to cover this, and means that we have yet another responsibility to check the internet each night during trial to see what our jurors are saying and doing.  Like we had too much free time during trial before.

On the plus side, at least it was on Facebook and not Twitter.  That would have been really controversial.

Yesterday saw an influx of comments by people who have never contributed an iota of substance to Simple Justice before, but suddenly appeared to offer their thoughts on the subject of lawyer marketing.  Without repeating the details of my position, I am strongly antagonistic to active marketing by lawyers. 

Not surprisingly, two groups rallied against me, lawyers who market and those whose incomes depend on lawyers who market.  They were offended by the vehemence of my attack on a person who posted a comment attacking lawyers who do not believe that blatant self-promotion maintains level of the dignity and professionalism that lawyers should reflect, calling such lawyers “elitists” who still think of lawyers as some “medieval guild.”  Idea like this are, in my view, not merely fundamentally wrong, but the root of many of the problems that have undermined the legal profession.

Obviously, others disagree with me.  That’s fine, but that’s not the end of the problem.

The reason Simple Justice exists is so that I have a forum to express my thoughts on whatever issue catches my interest.  In other words, it is my home.  Others do not have a “right” to come to my home and express their ideas on equal footing.  They can say what they want on their blogs.  They can say what they want on a blog where the owner allows them.  They have no right to do so here.

What compels me to state the obvious is that some commenters devolved from the silly, the arguments in favor of lawyer marketing, to the ridiculous, asserting not merely a right to express themselves but a proprietary right in their comments, including the right to link to themselves in order to drive traffic to their own websites.  This comes from people who do not seek to contribute to the substantive issues on Simple Justice, but rather to defend their own financial interest. 

In the past, Simple Justice had but one overarching rule.  While this remains the case, it appears prudent to emphasize one aspect of this rule.  No one gains a right or proprietary interest in what appears here by commenting.  Not in the name a commenter selects, nor the url a commenter includes, nor in the content of the comment.  You have no right to have your comment published, nor published as written. 

I don’t ordinarily make changes to comments.  Sure, I delete some of the most ridiculous and offensive, and I have long refused to allow spam comments to be posted.  I also do not generally permit commenters to include links to other blogs or websites, as I reserve the decision of which blogs and websites get links from Simple Justice for myself.  This is because it is my blog, not yours.  I do not delete comments because they disagree with me. 

The comments to my posts are not available for others to use as a marketing tool to their blog.  If you post a comment using your blog name with a link to your url, except in certain instances where you are someone on my blogroll or otherwise a regular source or  substantive contributor to Simple Justice, I will change or delete it.  If you find this disagreeable, then don’t post a comment here.

To be blunt, I have been pushed beyond the breaking point on the subject of lawyer marketing.  The many who disagree with me, I truly don’t care.  This is my belief, and this is my blog.  To those who say that if I won’t let you play the game your way, you won’t come here anymore, I can only say goodbye.

Unlike those who blog for self-promotion, I blog to write.  Read Simple Justice if you want.  If not, don’t.  The number of readers I have on any given day has absolutely nothing to do with whether I post or what I post. 

Someone told me yesterday that I don’t understand, that Simple Justice has taken on a life beyond just this old, grumpy lawyer posting his thoughts on the internet.  I was told that people pay attention to what I write, and that I therefore have an obligation to this audience.  While I appreciate that anyone reads Simple Justice at all, no less returns to read it another day, and while I enjoy the thoughtful discussion that happens here regularly, I reject the notion that because Simple Justice has developed a following I somehow owe it to others to provide them with an opportunity to post their thoughts here as well.  I do not.

I noted with approval that the ABA Journal had decided to ban a commenter who had, in essence, tried to hijack control of its comments.  No matter what other readers thought of the commenter’s posts, it was the ABA Journal’s home, and they maintained the right to decide who to let inside, and when a guests conduct crossed the line.   I retain that authority here, and I will exercise it as I see fit.

For those of you who think I’m overbearing, or just plain wrong about this, no one forces you to come here.  This is not fodder for debate or discussion, at least not here, so please do not tell me what you think.  This is how I intend to run my home, so your choices are limited to accepting it or going elsewhere.  So that there is no further issue, Simple Justice will be a “no marketing” zone, and that’s that.

Update:  I’d been told that my response to legal marketing guru Mark Merenda had caused outrage in the marketing blogosphere, but hadn’t seen anything to that effect until now.  At yet another blog dedicated to teaching lawyers how to package themselves, Legal Ghostblogger (“Improve your business with quality blogging”), I’ve become the poster boy for “childlike behavior” in the blawgosphere.

As a professional writing a blog, whether you like it or not, people are coming to you for education and guidance. Your visitors are making themselves vulnerable by admitting that they may have something to learn from you, a gap in their own knowledge. To throw that back in their faces with vitriolic rants and name-calling is worse than immature and disrespectful, it’s pernicious.

Apparently, in the eyes of the marketers, I have failed in my duty to please and appease anyone who shows up here and leaves a comment.  Lawyers, and blawgers, abdicate control of their voice and blawg to satisfy the demands of all comers.  Though Merenda certainly didn’t expose his vulnerability by hyping marketing, reducing this quote to an abstraction, let’s pretend that this marketer’s thoughts were bogged down by facile resort to fantasy and deal with them as if they had substance.

If people are coming to me for “education and guidance,” then here’s my message.  Do not let the marketers seize control of you and turn you into a commodity.  That marketers don’t like my message, or the collateral point that they do not have a “right” to spew at Simple Justice, is too bad.  To that, I say, “tough nuggies” (because I’m so immature).

To the marketer, lawyers are a commodity to be packaged and sold like “new and improved” dish soap.  If that’s your perspective, then her comments are on target, since no one sells dish soap by telling buyers (even if it’s not actually a buyer, but someone trying to sell a dish soap additive while standing inside your store that you’ve made clear you have no interest in selling) to go away.

The hallmark of a good marketer is the ability to make nothing sound like something.  The hallmark of a good lawyer is the ability to recognize an insipid argument when you see one.  So if you want to be sell a lot of dish soap, this is sound advice.  If you want to be a lawyer, this will turn you into dish soap. 

French political philosopher, Alexis de Tocqueville said that in a democracy, we get the government we deserve.  Jonathon Turley proves the point with this post, aptly entitled Elected Officials Score Lower on Civics Tests Than Average Citizens (Who Score Lower than Basic Condiments).  Condiments are considering organizing a new political party but are squabbling over the name.

American elected officials showed a shocking lack of knowledge about government, history, and basic constitutional principles in a national survey. They scored a failing grade of just 44 percent on a basic test of knowledge of our nation in a quiz by the Intercollegiate Studies Institute (ISI). Average citizens scored 49 percent. Note: many of these people scored less than a random or blind selection of answers — quite an achievement.

These are the people who get to vote on laws.  How does that grab you? 

The test, which can be found here, isn’t easy, and some of the questions are ambiguous and a little confusing.  But then, these are men and women who hold themselves out as qualified to make decisions about running a rather large nation.  Is it too much to expect that they have an adequate working knowledge of civics?

From the AFP story :

“It is disturbing enough that the general public failed ISI’s civic literacy test, but when you consider the even more dismal scores of elected officials, you have to be concerned,” said Josiah Bunting, chairman of the National Civic Literacy Board at ISI.

“How can political leaders make informed decisions if they don’t understand the American experience?” he added.

One the most common refrains during the election just completed was that Americans wanted elected officials who were “like them,” which I took to mean could understand their thoughts and concerns.  Perhaps that desire comes hand in hand with elected officials who have no greater knowledge or understanding of how America works then they do?  Is this really what the American people look for in their elected officials.

I took the test and got a 30 out of 33.  Less than great, but better than most condiments.  Two of my wrong answers were a product of sloppy reading, and one was pure unadulterated error.  Take it and see whether you are qualified to become a very important government official.  If you get higher than 44%, the answer is apparently no, you’re overqualified and the other folks in Congress will resent you for your intellectual snobbery.