A comment on the Lori Drew case the other day expressed a point of view that many non-lawyers hold, and gave pause to consider whether it reflects a valid point.

I make no pretense to being educated in the law. Yet I know a conspiracy to do great harm, which was accomplished, when I see it. Logically this is an event that needs to be addressed in society’s criminal-justice system.

But, if the costly and ponderous legal institutions we have created (law makers, attorneys, Judges–perhaps even you through your blog–who consume endless time and money “stewing & getting nowhere”) find it impossible to bring common sense and correct legal standing to the disposition of this matter: as you wrote “adults conspiring to inflict harm on a child,” we ought to dismiss all of these incompetent “Purveyors of Sub-Prime-Justice,” in the manner that their incompetent analogues on Wall Street (having also been failures in the service of the society) are being dismissed: declaring them unserviceable/Bankrupt/a hazard to the society and replacing them.

If we were to boil this down, he’s got a point.  The law is ponderous.  The law is costly.  We consume “endless time and money” and still fail to satisfy most people that the law serves them well.  Law makes, lawyers and judges obsess over details (well, at least lawyers and judges do) case by case, person by person, and far too often fail to provide anything remotely resembling justice.  For all our laws, rules, regulations, explanations and rationales, do we accomplish our goals?

The ideologues amongst us will respond that each law, rule, etc., serves a purpose, refined over years and years, experiences and experiences, to create as perfect a justice as flawed humans can achieve.  While this sounds good, is it true?  Few of us engaged in the law are particularly happy with how it works.  Some, the zealots, believe in the platitudes with all the hearts.  Most concede that it’s a constant struggle to figure out how to navigate between the multitude of principles imposed on the system, each for good reason and yet too often producing an end result that makes us shake our heads in wonderment.

So what if we were to chuck it all, stop tweaking rules and regulations to deal with the issue du jour, and elected instead to reduce all our years of experience to the most basic of precepts, such as the Golden Rule.  Would we then rise above being “purveyors of Sub-Prime-Justice?”

Not a chance.  Everyone has a clear vision of things that they see as wrong.  The problem is that everyone’s clear vision is different from everyone else’s.  Sometimes the difference is huge.  Other times nuanced.  Frequently, right and wrong are merely a policy choice, such as the decision to drive our cars on the right side of the road rather than the left.

The more difficult issue, and the one giving rise to the above comment, is the fact that the law does not cure all evils.  It’s not that law makers don’t want to solve every problem that voters have, but that people have an incredible ability to keep coming up with harmful things to do that no one ever anticipated, and so there is no law forbidding it.  When someone commits a wrong, people expect there to be a way to stop it, prevent it and punish it.  Most of the time there is.  Sometimes, there isn’t.

It’s quaint to believe that we could function as a society with something so clear, so easily understood by all, as the Golden Rule, that would cover every circumstances that happens and leave no gap for the evil-doer to escape justice.  It’s also Menckian in the havoc it would wreak on society. 

Yes, the law is ponderous and unsatisfying, often resulting in injustice and certainly replete with gaps that make the “prevent defense” look like good coaching.  I will not indulge in reliance on silly platitudes that it may not be perfect, but it’s the best man has invented.  I don’t know that it’s the best, and I frequently have severe doubts that we could do a whole lot better.

But the alternative, the “common sense” approach that non-lawyers seem to believe will do better, is pipe dream.  Maybe someone will come up with a better approach to dealing with the myriad conduct that causes harm to others, but this isn’t it.  Until this happens, we’re stuck with the law, for better or worse.

The New York Times printed a major editorial presenting a guideline for Barack Obama to “restore our good name” in the world community, starting with the closing of the Gitmo prison.  Clearly, the good name at issue is that of America, and the restoration is in the eyes everyone, Americans as well as the rest of the world.

Americans have watched in horror as President Bush has trampled on the Bill of Rights and the balance of power. The list of abuses that President-elect Barack Obama must address is long: once again require the government to get warrants to eavesdrop on Americans; undo scores of executive orders and bill-signing statements that have undermined the powers of Congress; strip out the unnecessary invasions of privacy embedded in the Patriot Act; block new F.B.I. investigative guidelines straight out of J. Edgar Hoover’s playbook.

Even with all those demands, there is one thing Mr. Obama must do quickly to begin to repair this nation’s image and restore its self-respect: announce a plan for closing Mr. Bush’s outlaw prison at Guantánamo Bay.

The focus creates an odd juxtaposition with a post by Radley Balko the other day following Judge Richard Leon’s release of the Boumediene Five upon finding insufficient evidence to hold them for prosecution.  Judge Leon found the evidence “sufficient to hold them for intelligence purposes,” but nothing more.  No one apparently noticed that they had been held for 7 years before Judge Leon ordered their release.

Radley focused on a National Review piece by Andrew McCarthy, SDNY prosecutor turned conservative pundit.   Like the Times, Andrew was disgusted with the handling of these Algerians, particularly the Justice Department’s abandonment of position that these “enemy combatants” were planning to blow up the American Embassy in Sarajevo, as the President how loudly announced so long ago.  

It seems pretty clear that the Bush administration did not help matters here.  Nearly seven years ago, the President publicly claimed the Algerians were planning a bomb attack on the U.S. embassy in Sarajevo.  Last month, however, the Justice Department suddenly informed the Court that it was no longer relying on that information.  We’ve seen this sort of thing happen too many times over the last seven years, and the effect can only be to reduce the confidence of the court and the public that the government is in command of the relevant facts and can be trusted to make thoughtful decisions.

And therein lies the difference between the two concerns.  McCarthy’s criticism of the Bush administration stems from how it undermines public confidence in the government, particularly the Executive.  This, Andrew opines, leaves the public to think that the government “can’t be trusted” because the government can’t be trusted.  Ironically, Andrew’s problem isn’t with the reality of the situation, but that people will perceive the reality accurately. 

What would be wrong with this?  From McCarthy’s point of view, a loss of confidence in the trustworthiness of the government would impair the government’s ability to do whatever it likes, law be damned.  This is what happens to people when they place their bets with the government rather than the people.  They see the government as being superior to the Constitution, the law, the United States, and grow angry when the government gets caught behaving poorly, or stupidly as here, because it diminishes the government in the eyes of the world.  Sometimes the government deserves to be seen as untrustworthy, because it has been untrustworthy. 

The idea is to correct what went very wrong, rather than to conceal it to protect the image of government as always right. 

While both the Times and the National Review critically address the same scenario, they could not reach more different conclusions.  McCarthy’s answer is protecting the image of government in the face of engaging in a terrible wrong, The Times’ answer is to stop engaging in a terrible wrong.  Wouldn’t it be better to be worthy of trust, Andrew?

Trying desperately to be the criminal law alter ego of Above the Law (without resort to the infantile sexual innuendo and pictures of hotties that so enthrall young associates), I’m announcing the bonuses to be given in criminal defense for 2008 will be the same as those in 2007.  Zero.

Sure, there are a few law firms of some magnitude that cover the practice area of criminal defense, or at least pretend they do, who have traditionally handed out bonus checks, but they don’t count because they either don’t really do criminal defense, or their concept of criminal defense is to walk the well-worn path to the United States Attorneys office to sip coffee and flip their client.  Perhaps we need to come up with a different name for this type of representation, but it isn’t criminal defense as the rest of us know it.

Dan Hull, the toast of the continent and Jiminy Cricket of corporate apologists at What About Clients? bemoans the “entitlement theory” of associate bonuses reflected by the comments to ATLs announcement that Biglaw bonuses might be insufficient to cover the downpayment on the Ferrari.

“Just being-there” bonuses tells the whole world–not just your clients–that your law firm values “talent retention”, crowd control and morale in the associate ranks over common sense economics and the kind of things clients think about: reward, punishment, incentive, efficiency, penny-pinching in good times and bad.

The associates, in response, say very mean things.  They want their bonus.  They deserve their bonus.  Because they breath.  The best argument they can muster is if they don’t get a bonus, it just means the partners get more money, and to that they say (anonymously, of course), “screw the partners.”

Criminal defense lawyers, at least the ones I know, don’t go through end-of-year bonus angst.  We don’t get them.  We’ve never gotten them,  There’s no one to give them to us.  Instead, we work hard for our clients who, we can only hope, will have some modicum of appreciation for our efforts and pay any outstanding balance on our fees.  This is our equivalent to the bonus. 

Year after year, criminal defense lawyers are constrained to earn a living by practicing law.  If we do it well, we get the opportunity to represent another client.  If we do it poorly, we join a law firm.  Each client we represent is a bonus.  Do a lousy job and you get no bonus.  Do a decent job and you get to practice law for one more day.

Hull believes that clients shouldn’t care at all whether associates get bonuses, large or small, provided that they are given for the right reason, which is not the fact that an associate has managed to show up in the office again today.

Yearly bonuses, given no-matter-what, should make anyone sane nuts, crazy, twisted, Flip City, in short order. Give the firms time to get properly and routinely tight with money, which they should have done all along.

While he left off “kooby-shooby”, showing his lack of proper education, Hull is right on target.  A bonus is not a right, but a reward.  It’s a way of saying, you did better than the others, and for that you get more than the others.  Without incentives, we are dull knives in the drawer.  Sane economics demands that law firms not reward the dead wood as well as the top performers, and despite what their mommy’s tell them, not every Biglaw associate is God’s gift to the law.  Very few, in fact, pan out very well, though their paychecks wouldn’t show this.

This has been the way of criminal law for as long as I’ve been practicing.  Earn the right to defend the next client, and you get the bonus of the next fee.  No private criminal defense lawyer can stay alive by just showing up.  If you want to thrive, work harder, smarter and better than anyone else.  Then you get your bonus.

Gideon at A Public Defender pointed out a “letter war” between a public defender named Miriam at a Accident Prone and her commenter, Tony Colleluori from That Lawyer Dude.  The exchange was ungracious, but reflects long-standing tension between public defenders and private criminal defense lawyers, younger lawyers and older lawyers, better lawyers and worse lawyers.  Gideon and I decided that we both post about it today, reflecting our respective backgrounds since Gid is a public defenders and I’m private.

Miriam, a Minneapolis PD, apparently was the recipient of the all-too-frequent smack that public defenders receive from those they try so desperately help, the defendant.   But the defendant’s hand was guided by someone who would have been her brother at arms, someone who would know better than to make a buck at her expense, by demeaning her competency to suggest to the defendant that his private skills are so much better that they are worth a fee.  To this lawyer, she writes:

Dear Private Attorney,

I know you think you know more than I do. Hell, maybe you do. I know that you think dispensing legal advice without, oh I don’t know, “reading the file” or “knowing about what the evidence is” is a good idea.

In the future, if you’re not going to do either of those things, please do not tell my already deluded client that he “should be able to get” a misdemeanor disposition from a felony. Or else, take the damn case and get what he “should be able to get” for him. Oh wait, what? You can’t/won’t/don’t have a valid legal license to do so? Then shut the f&*$ up!

Warmest Regards,
Mariam

As the later shows, Miriam is not happy. 

Tony, on the other hand, is a private criminal defense lawyer on Long Island.  He’s been around a long time and makes his living by being retained to represent criminal defendants, many of whom must make a choice between sticking with their public defender or scraping together the funds to retain him.  Tony markets himself through the internet, and just the other day stopped by here to defend lawyer marketing.  Tony responded to Miriam:

Dear Public Defender,

I am sorry that I can get a better deal for your client than you can. Maybe it is because I have been practicing law for about as long as you have been breathing. False confessions, eye-witness allegations and testilying cops don’t frighten me. I plea bargain, but I do so from a position of power, even when I am the “underdog”. I give your client a feeling of protection and ability.

Chances are I know, taught, mentored or helped elect the judge or prosecutor you are dealing with and s/he will take a chance on a client I represent because I bring a sense of reliability that you don’t enjoy. That is likely because your investment in our legal community is limited to telling your fellow lawyers what rubes we all are or rolling your eyes as we invite you to belong to our bar associations.

Oh don’t forget that while you are guaranteed a salary,I am not. Hence, you don’t work on every holiday or go in on weekends or even return calls… I do.

I give my clients my private cell number and my e-mail address. I am available to him or her 24/7. I am still in my office at 11pm on a pretty regular basis.

I did my time in Legal Aid. I appreciate the work that you do and I enjoyed it when I was doing it, but let’s face it, if I didn’t describe you, I described many PDs who get a lot of credit for dedication, but aren’t always as dedicated as they think. That is why their client is in my office begging me to take his case, and why I can’t. You can take it though, and you could win his undying loyalty and respect, but it’s not free, you have to earn it.

Warmly
Private Lawyer

There are truths in both letters, some smaller and some larger.  Both letters include some generalizations about the other that are, in particular instances, utterly false as well.  Not all PDs are young wild-eyed radicals, and not all private defense lawyers are competent, no less selfless, in their practice.  Not all PDs treat their clients like cattle, and not all private lawyers treat their clients like gold.  Some PDs knew the judges when they wore knickers, and some private lawyers have 20 years of experience practicing really badly. 

The essence of the problem here is that Miriam’s attack on the private criminal defense implicates what some private lawyers will do or say to make a buck.  In order to snare a client represented by a PD, some private lawyers feel compelled to belittle them, their quality, service and dedication.  The “why” is obvious; why buy the cow when you can get the milk for free.  To the small mind, the easiest method of marketing is to improve ones own worth at the expense of someone else. 

Tony’s response is particularly interesting, as it combines both his rejoinder to Miriam’s complaint as well as its own marketing opportunity.  Tony is obviously not shy about selling himself, and will take his audience wherever he can find it.

What is unfortunate is that Tony’s response perpetuates that mistaken belief that the private bar and public defenders are in competition with one another for clients, and that the fiscal vitality of the private criminal defense bar comes at the expense of the PDs. 

We are not competitors, nor must we be competitors.  We are the opposite sides of the same coin, both serving the same goal, and our existence does not depend on belittling the purpose and goal of the other.

I chalk these harsh feelings up to the business needs of the private defense bar, that ugly little thing that has pervaded our professional lives in the effort to get clients and make a living.  Times are tough for lawyers (not to mention everyone else in the world except police officers and Democratic elected officials), and lawyers feel that marketing, the overt self-aggrandizing stuff that has replaced substantive thought across the internet and elsewhere, is their key to survival.  When a PD like Miriam gets up a head of steam on a subject that could turn a few criminal defendants’ heads away from retaining a private lawyer, a private lawyer like Tony feels compelled to jump in, grab them by the scruff of the neck and pull those potentially paying clients back.

This is one of the reasons I hate lawyer marketing (or as a commenter at Bennett’s Defending People wrote, I’m “too extreme,” when I fear that I’m not nearly extreme enough).  For the sake of a buck, it pushes lawyers to say harsh things about their brothers and sisters in the trenches when all they really want to say is, “Hire me! Hire ME!”  And some will argue to me that this isn’t undignified but necessary, as if dignity and necessity were opposites.

Miriam’s complaint is not only valid, but well known to be one of the grave improprieties perpetrated by some in the private criminal defense bar.  They make pseudo-promises to potential clients of great results without basis,either factual or legal, in order to get their business.  They lie.  They deceive.  They sell.  And we are all painfully aware that it happens,

Tony’s reaction is surprising, as he needn’t be so sensitive to Miriam’s complaint lest it strike too close to home.  But since Tony doesn’t troll the courthouse hallways in the hopes of snagging indigent defendants aware from Legal Aid, I assume the best of intentions in his defense of the private bar.  Still, his worth as a private criminal defense lawyers does not come by head to head comparison with some generalized image of the kid public defender.   His worth comes from his own experience, skill and dedication, without resort to demeaning any other lawyer in the process.

If lawyers weren’t working so darn hard to sell themselves, and orthogonally (h/t J-dog) blunting any critical assertions against their own breed, there would be no need to squabble over such things.  Those in the private criminal defense bar either bring something to the table that makes them worth retaining to represent defendants, or they should find another area of practice.  Our experience, skills and dedication are what we offer.  Either they are worthy in themselves, or not.  They don’t become more worthy by beating up on public defenders to make themselves look better and brighter and nicer and worth many thousands of dollars. 

And if we could go back to the days before lawyers embraced the very notion of hyping ourselves to the public to make a buck, none of this in-fighting would be necessary.  This implicates two of my perpetual themes here at SJ, that the United States produces far too many lawyers than it needs, creating open competition for scarce resources, and that the day when the idea of active self-promotion became acceptable for this profession was the day our dignity died.

For the purpose of invoking rights under the Fourth Amendment, the definition of “seizure” is critical.  Since Florida v. Bostick, 501 U.S. 429 (1991), seizure occurs when “a reasonable person would feel free” to leave, to disregard police, to turn their back and walk away.  This, of course, is one of those ridiculous legal fictions that only a court could indulge.

Orin Kerr notes the decision by 10th Circuit Judge Michael McConnell in United States v. Thompson, wherein Judge McConnell let’s the cat out of the appellate bag by admitting that the test, repeated in every decision of its sort, is essentially meaningless.

According to formal legal doctrine, an encounter between an individual and the police is consensual when “a reasonable person would feel free ‘to disregard the police and go about his business.’” Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting California v. Hodari D., 499 U.S. 621, 628 (1991). In addressing this question, however, we must be guided by the Court’s decisions in similar cases rather than our own experience regarding how reasonable people actually respond to police investigations.[Fn1]

[FN1: It might bring greater clarity to this area of the law if the test were framed in terms of whether the officer’s behavior is coercive rather than whether, under the circumstances, the reasonable person would feel “free to disregard the police,” which we suspect is unrealistic.]

That this test continues to frame the discussion is a product of the slavish adherence to precedent, particularly when the Supreme Court comes up with a test it really likes regardless of whether it has any real-life validity. 

Why is this test nonsense?  Let’s turn to the two basic players in the scenario, the person stopped and the person doing the stopping.  No one, but no one, thinks that a police officer’s utterance of the word “halt” is a friendly request.  No one, innocent of any wrongdoing or not, can possibly know whether disregard of that word will result in a chase, a bullet in the back or nothing.  Human experience suggests that an outcome of “nothing” rarely happens, if for no other reason then the fact that police officers really hate being ignored.

So does any reasonable person, even an innocent person, believe that he is free to ignore a police officer’s question, command, admonition, whatever?  Never. 

Let’s turn to the other half of the equation, the police officer.  Perhaps you want to stop someone walking quietly down the street to ask where they got those really cool looking Nike sneakers, and say the word “Hey!” as they pass.  They disregard your “hey” and keep on trucking.  What happens next?  The alarm goes off in your head that something is awry or the person would have stopped, turned, smiled and inquired, “Hello, officer.  Can I help you?”  Anything else suggests that you’ve stumbled onto something, and thus compels you to make further, more intrusive, inquiry.  And I’m being kind by saying it this way.

Yet the law persists in testing whether a reasonable person is “seized” by virtue of this utterly ridiculous test, leaving both citizens and criminal defense lawyers in the awkward position of addressing street reality in the face of legal pseudo-reality.  It might be helpful to consider that a person is seized when the gun is drawn and pointed, or when the police have a person firmly in their grasp and control, but even that doesn’t quite fit with the caselaw since Terry stops enjoy a degree of malleability that surpasses any ability to be limited by consistent doctrine. 

Consider the cop who receives the radio call of a black man in jeans and a hoodie with a gun.  He’s going to stop everyone fitting the description, which could well be 70% of the people on the street in a given neighborhood, by physical force and with gun drawn.  Yet none are seized, under the law, since the seizure is somehow forgiven by the officer’s need to protect himself, which simply doesn’t fit in with the rest of the test.  When that happens, we just pretend the test doesn’t exist and override it with police necessity.  He isn’t seizing anyone, just safely inquiring.

This is where Judge McConnell’s footnote comes into play.  Rather than pretend that there is any meaningful use of the reasonable person test, or that any court actually applies it, an objective test based upon the officer’s actions would seem a far better way to determine whether a seizure has occurred.  It would still be far from perfect, since every command by a police officer is inherently coercive, and truth be told, most people feel that they must submit to the shield if they want to avoid a plethora of unpleasant risks. 

My test wouldn’t work, of course, because it would require the application of 4th Amendment protections to almost all police/citizen encounters, and that would create an unwieldy situation for police who want to do their job without any constitutional-thingy interfering.  It’s unfathomable that any court would apply the 4th Amendment so routinely; convicting people would become a nightmare.

Orin’s view is that the courts, as a matter of practice, spout the language of Hodari D., but engage in a more pragmatic approach by determining seizure via analogy to previously decided cases.

The Supreme Court has tried to address this problem a bit by clarifying that the standard is of a reasonable innocent person, apparently on the theory that a reasonable innocent person has no reason to fear the police. But again, that’s unrealistic: most people don’t feel free to walk away even if they feel they’re totally innocent. I end up advising my students along the lines of what Judge McConnell suggests: Apply the test based on analogy to decided cases applying it rather than by relying on the natural meaning of its words.

It’s unclear whether Orin thinks this is a good idea or just the way it works.  I don’t think it’s a good idea at all.  Initially, any rule dependent on analogy to other cases is subject to the facile descriptions of conduct by appellate courts.  If they want to suppress, they describe the conduct in terms designed to make it appear clearly over the line of seizure.  if not, they trivialize it.  The problem is that it can be the exact same conduct, subject only to the rhetorical skills of the author relative to the desired outcome.  We end up with a result-oriented jurisprudence that offers no guidance whatsoever.  Just a lot of words that tell us nothing useful.

Further, the limitations of the written word, its ability to capture the feelings, sensations, timing and atmosphere of an interaction between police and citizens, make law by analogy inadequate.  When you consider that our right to be left alone, to be free from search and compelled questioning, depends on how expressive, detailed or sympathetic a judge, the integrity of our constitutional protections hangs on a very thin thread. 

So why are there so many issues surrounding a concept that most normal people would find easily answered?   Why is it so difficult for such smart people as Supreme Court justices to come up with a test to determine when a person is seized that can be readily and realistically applied?  Because doing so would mean that we would have to apply the full panoply of 4th Amendment rights to almost every interaction between citizens and police.

And wouldn’t that be horrible.

The Supreme Court of Canada has refused to hear a challenge to regulations requiring airlines to provide two seats to passengers who are obese or travel with an attendant, according to this CBC story via Overlawyered.  Well, this is a problem, both for the airline and the rest of us.

The plaintiffs, and intervenor, presented as people suffering from a disability that resulted in obesity, rather than people who really like Big Macs.  Smart move.  Meet them:

The case has wound its way through various agencies and courts for years. It was originally brought forward in 2002 by three parties:

• Victoria resident Joanne Neubauer, who has rheumatoid arthritis and requires a personal attendant, wheelchair and crutches.
  
• Eric Norman, a man from Gander, N.L., who had a rare disease that impaired his motor skills. He has since died.
  
• The Council of Canadians with Disabilities.

Calgary law Prof. Linda McKay-Panos, who was later granted intervener status, has been arguing for the rights of obese travelers since she was charged for 1½ seats on a 1997 Air Canada flight.

McKay-Panos argued anyone who is clinically obese has a disability and should not have to pay for more than one seat. She has polycystic ovary syndrome, an incurable condition that can lead to obesity.

One might well see some validity to the argument, up until the extension in the last quoted sentence, “anyone whi is clinically obese has a disability and should not have to pay for more than one seat.”  That conceptual leap, from obesity caused by an incurable medical condition to obesity caused by an incurable desire to eat food that make you fat, is where the argument fails. 

The trend toward including obesity in the list of classifications against whom discrimination is intolerable really presents a “conceptual ledge” on the slippery slope.  And it’s not just Canada, though it’s certainly easier to bootstrap a worldwide movement by starting in the land of “ay” and working your way south.

Many people harbor a significant bias toward fat people, as if they are less worthy human beings than others.  That’s just foolish.  But the same can be said for the ugly, awkward and smelly.  What about people with no fashion sense?  Bad hair perhaps?  Am I being facetious and offensive by comparing?  Let’s see.

The problem an obese person has with an airline seat is physics.  Two bodies can’t occupy the same space.  This law trumps anything the Canadian Supreme Court can do, rendering its remedy clear.  If an airline has to provide every obese flyer, however obese is to be determined, with an extra seat in order to accommodate their size, it thus precludes the person who would otherwise occupy that space from having a seat.  It not only penalizes the airline, but the passenger who isn’t obese who would otherwise be able to reach a destination.

The airline sells a certain quantum of space for the purpose of transporting a person from one location to another.  When I travel by air, and an obese person plops down next to me, I find it to be a problem.  Without indulging in detailed explanation, it happens that portions of their body end up in my space.  Why is my space, that quantum that I’ve licenses for the trip, subject to their use?  They can’t help it, I’m told.  I’m sympathetic, but fail to see how that becomes my problem for the next 8 hours. 

This is where the buck stops.  As I age, I find the height of my jumps to be even lower than when I was a young man because of muscular degeneration, a sad fact beyond my control.  Am I not entiteld then to enjoy a multiple of my jumping height when I compete in the Olympics to fairly compare me to some high-jumping kid, who does not suffer the ailments of age?  Ridiculous? Sure. 

The distinguishing aspect of this argument is that it is not merely a fact of physics, proponents of this cause contend, but a disability, and no one should be punished for being disabled.  Amen.  I’m with you.  But we are all disabled.  It’s what makes us human, being able to do one thing better than someone else, and others worse.  Some are tall and some are short.  Some are good at math and some are good at lifting heavy cans.  Some graceful and others awkward.  It’s what distinguishes one person from another.

We should not penalize people for being who they are, yet we do all the time.  People suffering from traumatic brain injury are held to abide the law when they lack the ability to control their intellects and actions to the extent necessary to avoid jail.  These are people who suffer from a very real disability, and yet no one seems to care that they are prosecuted because of conduct beyond their control.  Ask a person suffering from undiagnosed bipolar disorder, during one of their more lucid moments, how well they are tolerated?  The prisons are full of disabled people.  Where is the outcry?

There are obese people who indeed suffer from a physical disease that gives rise to their issue.  There are also obese people who have chosen a lifestyle that makes them morbidly fat.  It’s their life and their choice.  But to sweep them all together under the guise of a disability cheapens the word and concept.  No one suggests that obese people be prosecuted for being so fat, or spilling over into the next person’s airline seat. 

On the other hand, there is no rational basis to place the burden on society to make accommodations for the obese.  Are you prepared to be bumped from your flight because an obese person showed up at the airport with a ticket?  Given this new regulation, this seems likely to be the outcome, another passenger losing a seat because an obese passenger requires two.  How did it become the other passenger’s burden?  The weight has to be on someone’s shoulders, and the only question is who’s?

My politically incorrect position will no doubt draw the ire of those who suffer for their size and weight.  I hold you no ill will, and do indeed appreciate your position.  It is never pleasant to find that some personal characteristic presents an obstacle to doing what you want, particularly when you feel that you can’t control it.  For this reason, I will be the first to defend your right not to be persecuted for your physical condition.  It is not a crime to be fat. 

But your right to be obese ends at my airline seat fold-down arm, or my ability to take my seat on my confirmed flight.  Being obese doesn’t confer additional rights on you that trump mine. 

Once we change the duty to not discriminate from the suspect classifications to matters that defy the laws of physics, we have fallen off the conceptual ledge that prevents our slide into an untenable state of affairs.  The many activities of a normal life implicate different people’s strengths and weaknesses, physical gifts and deficits.  Accommodating race, sex, religion, natural origin is wholly different.  Accommodating heft goes too far.  For those who truly are obese because of a disability rather than lifestyle, welcome to the club of humanity. 

The New York Times editorial board has belatedly chosen to chime in on the conundrum confronting the head-on collision between Gideon v. Wainwright and the recession.  This is important, since we wouldn’t have a clue without their comforting thoughts.

After expressing all the warm, fuzzy and painfully obvious things, such as “[p]ublic defenders’ offices always have been underfinanced and overburdened,” the Times offers a solution.

With states struggling to come up with financing for schools and hospitals, we fear politicians are unlikely to argue for significantly more money for public defenders’ offices. To solve the immediate crisis, new sources of support would have to be found — quickly.

One approach would be for states to increase the registration fees charged to lawyers. The private bar also must significantly expand pro bono representation. Such efforts alone cannot fill the gap. Ultimately, government must take responsibility. All defendants, rich or poor, have the right to competent legal counsel.

There ya go!  The “government must take responsibility,” so that means “registration fees charged to lawyers” should be increased and the private bar should expand pro bono representation.  Where does the part about the government taking responsibility come in?  It sounds like they want to shift the burden of indigent defense from the state to the backs of lawyers.  Does it sound that way to you too?

Hold on.  Wait a sec.  I think I got it.  The answer to fulfilling society’s problems should fall on the next closest occupation/profession.  Physicians should treat all poor patients for free because health insurers charge too much (and get to enjoy really cool spa vacations).  Stock brokers will naturally have to pay their customers to make trades, given that they’ve got nothing left in their 401(k)s.  Banks will be paying the mortgages on behalf of homeowners with negative equity.  And the New York Times will be distributing its paper for free above 89th Street.

What?  That’s not what the Times had in mind?  Lawyers should carry society’s responsibility because . . . they’re lawyers?  Why not cops tithe 10% of their salary toward indigent defense.  Maybe prosecutors and judges too?  No?

Listen, Punch.  Most criminal defense lawyers have been giving until it bleeds for most of their career.  It’s the nature of what we do.  Most civil lawyers couldn’t defend an accused if their life depended on it, so even if it was their responsibility to do so, it wouldn’t help.  But most importantly, this is not a lawyer responsibility.  This is a societal responsibility.  So don’t dump society’s burden on our shoulders, as if we’re the only ones who should pay to enjoy life in a constitutional democracy.

Bite me.

Have you ever wondered what happens when a lawyer’s personal commitment to another lawyer to keep a secret denies his client a fair trial?  We now have an answer, courtesy of Judge Victoria Graffeo and the Court of Appeals:  Nothing.

As reported in the New York Law Journal,

A drug dealer was not denied effective assistance of counsel because his lawyer did not seek to tell him, the judge or the jury prior to a verdict that his brother, a co-defendant, had acknowledged solely committing one of the crimes of which both were accused, the Court of Appeals decided yesterday.

It’s always bad news when a story beings with the words, “a drug dealer.”  The news just got worse from there.

“The People’s failure to turn over Aaron’s statement would be material if there is a ‘reasonable possibility’ that the non-disclosure contributed to the verdict,” Judge Victoria A. Graffeo wrote in People v. Ennis, 168. “That standard is not met because, had the statement been turned over, there would have been no avenue for defense counsel to admit it into evidence, either in the joint trial of the Ennis brothers or in a separate trial of defendant had severance been granted.”

The prosecution?  What about his own lawyer, who knew all about the brother’s statement but kept it to himself as a matter of personal honor.  After all, why should he be concerned about his client’s 43 1/3 to 60 years in prison when he promised to keep a secret.  After all, a promise is a promise, right?

The Ennis case embodies so many bad things that it’s a struggle to figure out where to start.

During the trial, Mr. Cooper was told about exculpatory statements Aaron made to prosecutors during a proffer session with the district attorney’s office. Aaron said he shot Mr. Moody and that Sheldon was not present. The prosecution never turned over the statement as Brady material.

Isn’t that a problem?

The Court noted that Sheldon had two bases for his ineffective assistance argument: that Mr. Cooper’s representation was compromised by a conflict of interest when he was told about Aaron’s statements and that Mr. Cooper’s failure to act appropriately on that information contributed to Sheldon’s conviction.

Isn’t that a problem too?

The Court of Appeals rejected both lines of reasoning.

It held that the “personal dilemma” Mr. Cooper described facing was “markedly different” from more traditional conflicts of interest, where, for instance, a counsel becomes a witness against a defendant or where defense counsel had a previous or concurrent representation of a client whose interests conflicted with those of the defendant on trial.

Here, the purported conflict “does not arise from objective facts or circumstances external to defense counsel,” the Court said. Rather, it suggested that Mr. Cooper was “torn” between keeping a promise not to disclose the information and acting in his client’s best interests.

It’s not often that a single decision gets to emasculate the Constitution and legal ethics at the same time.  The Brady aspect seems less disconcerting, since no experienced lawyer has any real expectation of legitimate Brady disclosure, it being the goofiest and most toothless of constitutional concepts.  Had the Supremes been serious in Brady v. Maryland, they would have included a procedure for ascertaining Brady material and turning it over at a time when it might be useful, and remedy for failure to do so.  This glaring omission makes Brady one of best lawyer jokes around.

But to question whether there is a conflict, because it doesn’t fall into the “more traditional” conflicts, is just utterly absurd.  Keeping information from your client, the judge, the jury, that you know that another person has openly admitted that he, and not your client, committed the crime, isn’t a conflict?  On what planet?  Well, planet New York, apparently.

Cooper, the trial attorney whose “personal dilemma” prevented him from fulfilling his ethical and legal responsibilities during the trial, felt badly afterward and tried to make it up by submitting an affirmation acknowledging his bad decision.  That, of course, implicated yet another problem, that being that he knew the problem during the trial, failed to raise the Brady objection, and thus waived it.  Amazing how each additional act of ineffective assistance undoes the import of prior and subsequent acts.  And they say two wrongs don’t make a right.

Worst of all is the assumption that had Cooper’s conflict not happened, it would have made no difference to the conviction of a man for a crime he didn’t commit.  With all due respect to the judges of the Court of Appeals, this is a leap they are not qualified to make.  That they cannot see an easy path to introduce evidence of innocence does not mean that it could not be effectively used, some way, somehow.  Rather, this is a circular argument, since there was no attempt to use proof of innocence at trial, it could not have been used at trial.  I bet that any good, conflict-free lawyer would have found a way to get this before a jury, whether by convincing the client’s brother to save his own flesh and blood from wrongful conviction to moving to be relieved as counsel so that the attorney could take the stand as a witness to the confession, to moving to recuse the prosecutor as a witness to the proffer.  And that’s just off the top of my head.

Somehow, innocence has to come in.  Somehow, innocence has to matter.  Even when the defendant happens to also be a drug dealer.

At least that seemed to be the case before this decision.

Wilmington, North Carolina, is not the locus of our best and brightest.  Don’t ask me how I know this, but I just do.  But that doesn’t mean that the local police don’t have the occasional brainstorm.  This one is a doozy.

Via Turley and J-dog comes this tale of excellent police work from the AP.

Gladwyn Taft Russ III was serving as a pallbearer at the Saturday service and was loading his father’s casket into a hearse when the undercover deputies approached him.

Relatives said two deputies dressed in coats and ties grabbed Russ and kneed him in his back before using a Taser on him. One deputy’s gun fell out of its holster.

“Everybody was so scared. We thought it was a drug deal gone bad,” said Ronnie Simmons, another pallbearer and Russ’ brother-in-law. “We almost dropped the casket.”

As suggested by brother-in-law Ronnie, this was not a family that was wholly unfamiliar with criminal conduct.  After all, most people wouldn’t immediately jump to the conclusion that this was a drug deal gone bad.  It tells you a little something about this crew.

But even with sketchy families, a funeral is a situation where one should exercise just a bit of discretion.  Nobody is very happy when protesters appear at funerals, whether they have a right to do so or not, so why should it be different when the funeral is disrupted by the cops?

But perhaps this was a fugitive who, through guile and evil genius, had managed to evade arrest after committing heinous wrongs?  Would it then be improper for police to take extreme measures to use their singular opportunity to capture this man?

Russ, 42, had failed to surrender after being charged with threatening his ex-wife, who lives in another state. After his father died on Nov. 11, Russ agreed to surrender to authorities after the funeral.

When deputies approached Russ, he “went wild” and spat on the officers, Chief Deputy Ed McMahon said.

Russ was charged with assault on a government official, resisting an officer, disorderly conduct and felony malicious conduct by a prisoner.

So he had, in advance of the funeral, agreed to surrender to authorities?  It would seem reasonable to assume that the authority with whom he spoke had found that acceptable, lest they would have used their vast persuasive powers to urge him to come in first and they would let him go to the funeral peaceably afterward (whether true or not).  And then, having acquiesced in the ritual burial of his father, they decided instead to storm the funeral?  And he “went wild?” 

Who would have thought?

According to Star News Online, police say that Russ had failed to keep an earlier promise to turn himself in, which was why they felt constrained to arrest him at the funeral.  Omitted from this point is that he was going to turn himself in after his father had surgery, but apparently his father’s death resulted in a change in plans.  Still, Russ called police to explain the circumstances and say he would turn himself in after the funeral.  But the cops didn’t trust him anymore and felt they needed to take matters into their own hands.

Hence, the plan to nab the fugitive from justice while carrying his father’s coffin was born.  Hah!  It’s not like he can run then!  We got him!

The officers who came up with this plan will be disciplined, according to the report.  No doubt they will be chastised with very firm, if small, words.

Sheriff’s Office Chief Deputy Ed McMahon chalked it up to bad timing.

McMahon agreed [that this should not have happened] and said he would address the situation in the sheriff’s office so “we don’t make that mistake again.”

Problem solved, by Wilmington standards at least.

Early this week, I received a call from a Columbia Journalism School student asking if I would be willing to do an interview.  Unlike other interviews, I am always happy to help J-School students with their education, and I’ve done numerous interviews with Columbia students in the past as part of their class assignments, as well as their hope to get a story published “for real.”

With working journalists, it’s neither my place nor pleasure to teach them how to do their job.  It would be presumptuous of me to think that I know more about their story or methods then they do, and if I elect to do an interview, then I play it straight.  Like a good witness, I answer the questions asked.

But there’s something different about doing an interview with students.  They are students, which by definition means they are learning their craft.  I consider it a duty, even a mitzvah, to help them.  And have a little fun in the process.

There were three students conducting the interview, each asking a question in turn.  Their concern was a New York case about which I had blogged, and they were trying to write a story making sense of this particularly bizarre scenario.  Right out of the box came this beauty:

                Does this happen often?

Oh absolutely.  That’s the funny thing about truly bizarre and unusual cases.  They happen all the time, in almost every criminal case.  Then silence, as it dawned on the questioner that anomalies, by definition, don’t happen often.

After a discussion about the nature of conflicting factual allegations, this question was posed:

                How does the judge know who’s telling the truth?

There’s a special chair on side of the judge’s bench, and they put the witness into the chair and ask questions.  Above the chair is a very bright red light, and if the red light goes off while the witness is speaking, then the witness is lying.  Again, silence. Then nervous laughter.

“You’re not serious, right?”  No.  No, I’m not serious.  I then launch into a compare and contrast explanation of the witness who’s a junkie, twitchy and nervous, with a horrible criminal record, scowling demeanor and nasty disposition, who is telling the truth, versus an 18 year veteran police officer in his clean but well-worn uniform, with a chest full of medals and a calm, forthright appearance, who is lying through his teeth.  “Who would you believe?” I ask.  “What makes you think the judge has magical powers that you don’t?”

                So what happens if the judge gets it all wrong?

This is one of my favorite questions from students, and every single time I’m interviewed by a J-School student, it’s asked.  I tell them, “then the wrong person goes to jail and everyone else goes home and has dinner.”

My response invariably evokes a reaction that I make the system sound terribly unreliable, terribly cynical.  Then I know I’ve done my job.  If these are our journalists of the future, they need to do two very important things:  First, they need to figure out that you only get the right answers by asking the right questions.  Ask stupid questions and you get stupid answers.

Second, they need to realize that we live in an imperfect world, and that they, our journalists of the future, play a crucial role in digging beneath the obvious, the superficial, the official, to act as a guardian of skepticism.  While I hate to spoil their childhood belief that there is fairness and justice in the world, somebody has to burst their bubble if they are ever going to be good journalists.