Saving GM from itself in order to save America’s last remaining industrial base raises many questions, not the least of which is who should bear the burden, or at least a share of it.  Many eyes have turned to the United Auto Workers, the union that has been so successful over the decades in achieving good wages and benefits for its members, but now eyed for having done its job too well.

What does the UAW have to say?  From the Detroit Free Press :

When asked last week if she and other UAW members should sacrifice more now to save GM from bankruptcy, she has a simple answer: No.

“I think we’ve given enough,” said O’Neill, 39, of Goodrich, an assembler at GM’s Lake Orion plant, where she builds the Chevy Malibu and Pontiac G6. “Everybody wants to come down hard on the workers. Nobody knows what we do inside there but the people who work there. It’s hard. It is not an easy job.”

Well, that clears it up.  It’s not that auto workers are suffering.  In fact, they remains a remarkably well-paid group, to the extent that they still have jobs or will have them in the near future.  Newer autoworkers, of course, aren’t paid like those who’ve “paid their dues,” but it still beats flipping burgers.

The AP reports :

United Auto Workers President Ron Gettelfinger said Saturday that the problem is not the union’s contract with the automakers and that getting the automakers back on their feet means figuring out a way to turn around the slumping economy.

“The focus has to be on the economy as a whole as opposed to a UAW contract,” Gettelfinger told reporters on a conference call, noting the labor costs now make up 8 percent to 10 percent of the cost of a vehicle.

It’s certainly not in the best interest of UAW members for Gettlefinger to blink.  No one will appreciate it later, and any giveback now means a fight to recapture it when the feeling passes.  Bottom line is why should autoworkers suffer more than anyone else?  The answer, of course, is that they benefited more than the rest of us.  But does that matter?

Americans want the United Auto Workers to eat their contractual benefits because it reduces the burden on the rest of us, unless the Americans happen to be autoworkers.  This doesn’t make the UAW the villain, but the archetype.  This is what every interest group has to say today, loudly and clearly.

As government budget cutters are sharpening their knives, each group is busy lobbying to keep its piece of the pie intact.  Educators are screaming, “don’t balance the budget on the back of kindergarteners.”  Medical groups complain, “don’t abandon the sick and helpless.”  But teachers could always take a pay cut.  Insurance companies could always blow off their executive bonuses and a spa vacation or two.  Neither will. 

This is America, the land of me.

We are 100% in favor of belt tightening, provided it’s not our belt.

Any reasonably articulate person can mount a valid rhetorical defense against any particular interest group taking the weight of the financial crisis.  Some are more valid than others, of course, but that doesn’t mean that the argument doesn’t sound awfully good and “resonate” with politicians or the public.

The upshot, of course, is that no one wants to see their income cut, their pet project junked or their favorite cause neglected.  That’s America.

And the first reasonable person who, in the spirit of doing what’s best for all of us, is willing to voluntarily tighten his belt is going to get royally screwed when no one else follows his lead.  That’s America.

I don’t blame the UAW for American automakers’ inability to produce cars people want to buy at competitive prices.  That’s not the UAW’s job, even though it remains in its interest to keep the automakers alive so that its members have a place to go every morning.  But as long as a federal bailout is in the works, why should they agree to anything? 

For many years, one of the most effective arguments used to sell American cars has been “Buy American.”  This appeal to patriotism, to keep our cash at home, to support our brothers and sisters in Michigan and elsewhere, struck a cord with working people. 

Where’s the patriotism now that we’re all heading for the bunkers?  Kinda makes idealists look like a bunch of fools, doesn’t it?

Update:  This from ScrappleFace :

With bailout talk swirling around GM and Ford, House Speaker Nancy Pelosi today offered some much-needed help to the U.S. auto industry during a news conference on Capitol Hill.

“Here’s my proposal to rescue U.S. automakers,” said Rep. Pelosi.
“Memo to Detroit: Make better cars.”

As if. 

H/T Todd Zywicki at VC.

Following the New York Times front page story about public defenders being constrained to reject representation of the indigent, characterized as a “revolt”, there was renewed interest in the plight of Gideon.  On the heels of this, the  Legal Talk Network podcast, Lawyer2Lawyer, conducted an interview of  some public defenders by  Bob Ambrogi and J. Craig Williams, “two of the top webloggers in the legal profession.”

It was shocking.  No, not the plight of public defenders.  This is nothing new to anyone who’s kept at least one eye partially open for the last generation.  What I found incredible was how little the interviewers understood about public defenders, as if this problem materialized out of thin air overnight. 

Then Skelly at Arbitrary and Capricious pointed to a post at the Faculty Lounge by Dan Filler, where he wrote:

As states feel serious tax revenue loss, they will inevitably look for ways to hack costs.  We know that one common site for this trimming is compensation for appointed counsel.  Public defender money seems comparatively constant – even though these offices can take hits during recessionary periods.  But the hourly/piecework rates for individual appointed counsel sometimes seem like an easy cut.

I realize that lawyers practicing in other fascinating areas of law truly wish in their secret hearts that they were criminal lawyers, fighting the good fight and doing something that would hold just a bit of interest to others.  I know that lawyers who spend their days in deposition rooms call themselves trial lawyers as if they’ve ever stood before a jury.  I realize that criminal law stories are much more interesting then the wild and crazy world of contracts.  But people, get a grip.  You are still lawyers, and others operate under the assumption that as a lawyer you have some slight notion of how “the law” works, including criminal law. 

There is nothing new about the fact that lawyers who represent the indigent have been forced to labor under unacceptable conditions forever.  This isn’t a product of the economic downswing, but a basic fact of life.  What is amazing about the current discussion is that public defenders are discussed as if they are some other, lesser, breed of lawyer.

Public defenders are lawyers who work for a group, whether quasi-public as in the Legal Aid Society, or private as in The Bronx Defenders under a contract with the government, to provide legal representation to the indigent.  There are also indigent defenders, who are private attorneys who represent the poor, usually by dint of being a member of a panel of private attorneys who accept cases at a dictated hourly fee, such as CJA or 18B lawyers.

But each of these individuals are still attorneys, just like every other attorney.  They are ethically bound to provide effective representation of counsel to each and every client they represent, regardless of the mechanics of how they are paid.  They aspired to do great work for their clients, just like the rest of us, only to find that the job being asked of them was to make sure that the wheels of justice kept grinding, no matter what.

Under Gideon and its progeny, state and federal governments are required to provide legal counsel to represent any person being prosecuted for a crime who is unable to afford counsel.  How indigency is defined varies wildly from place to place, but there has long been far more indigent defendants then resources to defend them.  It has been a crazy struggle, often to the point where public defenders were stretched to the breaking point.  This has been the case forever.

The questions posed in the Lawyer2Lawyer podcast, like Dan Filler’s post, suggest that this is problem just arose as a result of the economic crisis, that suddenly boatloads of defendants showed up at the Public Defenders’ doors in need to counsel, forcing them to turn these poor defendants away. 

PDs never had the luxury of functioning like private lawyers.  They could never say to an indigent defendant, “sorry pal, but you’ll have to find somebody else to take your case. I’m all booked up.”  The burden of providing counsel to the poor is a responsibility of the state, yet they carried it on their shoulders, taking on hundred plus defendant caseloads so the rest of us could enjoy the leather chairs in our corner offices. 

The only difference now is that each day’s crop of defendants, and each day brings a new crop of defendants as we are stuck with the zillion laws criminalizing everything under the sun, includes ever-increasing number of indigents.  Defendants who before would hire a lawyer are now unemployed, or have lost their savings, and are left to beg for representation. 

So the same number of PDs, with the same crappy salary, are watching as the defendants who need their services grow like mushrooms under a judge’s bench.  The same number of indigent defenders with the same crappy hourly fee (doesn’t anybody remember that New York 18B lawyers fought for years to get an increase from $25/$40?) are being asked to pick up the slack, except that they aren’t required to carry the crushing burdens that have fallen to the PDs.

What is appalling about all this is the lack of recognition that this is not a different breed of lawyer with some lesser, bordering on non-existent, ethical obligation to zealously defend their clients.  Their obligation is no different then mine or yours.  These are lawyers, every bit as real a lawyer as the rest of us.  To view them as cattle herders, whose only responsibility is to steer 100 head into jails, is outrageous.

The problem isn’t about cutting funding to indigent defense.  The money was always bad, never sufficient, to staff offices adequately.  The problem is the ever-increasing numbers of human beings in need of representation because our police, our prosecutors and our courts want to put them away, without a commensurate increase in the number of lawyers to represent them. 

For as long as I can remember, PDs have been at the edge of a precipice, doing the heavy lifting of representing the poor so that the wheels of the criminal justice system can grind away.  They stood there trying to hold back the crush of humanity that threatened to swallow them, and the system.  The crush can no longer be held back, unless these offices give up any pretense of providing meaningful representation.  No one can represents hundreds of defendants at a time.  No lawyer can fulfill their ethical obligation when their caseload that increases at this pace.  They are literally drowning under a sea of humanity.

But the problem for PDs translates into a problem for the system.  If indigent defendants are prosecuted, but there is no lawyer to represent them, the system stops dead in its tracks.  Caught between a constitutional mandate and lawyers who have reached, and passed, the breaking point, courts have chosen to beat up on the easiest target, the PDs.  Just “order” them to represent more people.  Just “order” them to stand in the well as a never-ending stream of humanity is trotted out in front of the bench to be disposed of.

Ambrogi asked “where do these defendants come from?” (Bob Ambrogi says that he never asked or suggested this, so I’m removing it rather than having to listen to the podcast again to check).  The same place they always came from.  They are just poorer, needier and at greater risk because the courts have turned Gideon from a safeguard into a pretense.  As long as there is a warm body with a tie standing in the well, courts deem that sufficient to pretend that these indigent defendants are represented.

Public defenders have tried their best, as they have for so many years, to fill the gap.  Not because we, the rest of society, deserve it, but because they believe in this mission.  The numbers no longer make their best viable.  PDs can no longer shore up a system and take the weight of society’s burden to provide legal representation to the poor.  And the duty is to provide the same high level of legal representation to the poor as the wealthy and the powerful.  There is no difference.

What are the consequences of saying no?  Will police stop arresting people?  Will prosecutors stop prosecuting?  Will courts stop convicting and sentencing?  Or will the system continue as usual, but without anyone standing next to poor defendants?   Is absolute minimal representation better than none at all? 

At what point does the dignity, integrity and professional responsibility of PDs compel them to scream, “Enough!”  When individual caseloads hit 100?  200?  500?  When you don’t know the name of a single defendant anymore?  When you are expected to try the case of a person you’ve never met?  Where does it end?

There are few champions of the poor and indigent in government these days.  Who will stand up and demand that the lawyers who defend the poor have adequate resources and caseloads that allow the
m to provide excellent representation?  Courts demand that they push defendants through the system, regardless of whether they receive competent representation along the way.  PDs have finally hit the wall.

This isn’t about getting paid less per defendant, as Dan Filler thinks will happen when government looks for ways to cut costs.  Private lawyers can stop any time they want.  It’s about the bodies. How many bodies can get pushed through per $100.  It’s about the responsibility.  How many pleas can you take when you don’t know the defendant’s name?  Why should PDs be the only ones caught in the middle of this fiasco?  It’s everyone’s problem, not just theirs.

The cost of providing legal representation to the indigent must be paid by all of us.  We’ve been getting away cheap forever.  By underpaying and understaffing PD offices, while demanding that they represent all comers, they have paid the price of Gideon instead of us.   But there has always been a hidden cost, a dirty cost, that no one wants to talk about.  It’s the cost of one’s professional responsibility when forced to do a job that can’t be adequately done.

There is no mystery surrounding public defenders.  The only mystery is how lawyers outside the practice of criminal law have managed not to notice these problems for decades, and how PDs have made Herculean efforts to fill the void we’ve left for them. 

The only reason this comes on to their radar now is because it threatens to shut down the criminal justice system for lack of representation of the poor.  Where have the civil lawyers been all this time?

Addendum:  Doug Berman posts a “smorgasbord” of death penalty reporting.  Does this give anyone an idea of how to free up a ton of criminal justice resources? 

Larry Bodine is a legal marketing guru, and is not one to shy away from straight talk.  This is a quality I greatly admire in others, as I see wiggly, meaningless rhetoric as a waste of my time.  I really hate it when my time is wasted.  If you’ve got something to say, then just say it.  And if you don’t, then why are you writing anything in the first place?

But the downside of being unafraid to state one’s views is that, every once in a while, a position comes to light that is, well, truly disturbing, perhaps even bordering on sick.  Such is Larry’s view in this post, entitled The Best Elevator Pitch Ever.

I was conducting business development training at Chicago-area law firm when the focus turned to “30-second commercials” or “elevator pitches.”  Each lawyer in the session was assigned to write their own, following guidelines I outlined.

The silver-haired senior-most litigator at the firm came up with the BEST elevator pitch ever.  The senior partner said, “when I step onto elevator at the top floor, I size up the other person to see if he is a business man.  I know they don’t like lawyers.”

“When they ask me, ‘what do you do for a living?’ I answer I’m a Nazi medical researcher.”

The businessman will react with shock.  “Then I say, ‘I was kidding. I just said that because I’m a lawyer.”

This always gets a laugh from the businessman.

“Then I say I help businessmen in court.”

The best?  No.  Not the best.  Not even acceptable.  If someone were to say this to me in an elevator, my initial reaction would be to loudly exclaim a select epithet and tell the other person that they should get far away from me immediately.

I enjoy lawyer jokes, though many of my overly-serious brethren find them offensive.  I don’t find anything funny about the Nazis, and Nazi medical researchers are particularly unfunny.  I understand the comparison between lawyer and Nazi, thus making the hated lawyer less evil by comparison.  The use of Nazis is still unacceptable, offensive and as close to a good reason to strike someone as one will find in an elevator.

That Larry has gone so far out on a limb to proclaim this is the best, not merely good, but the best, elevator pitch he’s ever heard is shocking.  Even if one has a particularly warped sense of humor, or high tolerance for disgusting references, this one should have given Larry pause.  A really long pause.  For some reason, Larry decided to lay it on the line and post his love for this pitch.

I don’t pitch in elevators.  In fact, I have made it lifelong habit not to speak in elevators, since you never know who’s in there with you.  But if I ever was inclined to speak in an elevator, and if that speech was intended as a “pitch”, it would not involve Nazis.

There are about a million alternate ways for this elevator pitcher to have made his point without invoking the Nazis.  My advice would be to find a different way.  As for Larry, I am very sorry that this is the sort of thing that you find to be the “best”.   In case I haven’t been clear, I do not.  I find it deeply disturbing on every level.

Update 1:  The comments at Larry Bodine’s blog have been less than supportive of this particular post.  One might think that Larry would reconsider.  One would be wrong.  In fact, Larry posted this follow-up:

11/16/08: Thanks for all the comments on this post. No one could ever say that your acting as the Police of Political Correctness. Besides, you can’t have enough things that are PC anyway. Nobody would waste their turning a quick joke into a highly-charged epithet. 

People email me privately that the commentors have no sense of humor, or are pursuing an agenda. Golly, would someone do that? I like to believe that kind of things doesn’t go on.

So keep those comments coming. Presumably you’ll manage to fit them in between protest marches against “The Producers” outside Mel Brook’s house and the orchestrated boycott of reruns of Hogan’s Heroes.

I’m fairly certain that if I found myself in this hole, I would stop digging.  More to the point, I wouldn’t ridicule people who didn’t agree with Larry’s sense of humor in this instance.  But then, Larry’s the marketing guru.

Update 2:  It would appear that Larry has decided to stop digging, and the “best elevator pitch ever” post is now gone.  Forever?

H/T Geeklawyer via twitter

Update 3: Larry has removed the original post and apologized for it.

I sincerely apologize for the crude and offensive “Elevator Pitch” post I put online last week.  In the clear light of morning, it is clear that it was anti-Semitic and repellent.  I want to thank all the people who commented and called me about it; I listened and took what you said to heart.

I have deleted the post.  It was a mistake to repeat a crude joke that I heard in rural Illinois, and I should have known better. It was a worse mistake to say it was the “best” of its kind, when actually it was hideous.

I appreciate Larry’s recognition of the error, and am happy that this issue has now been put to rest.  I hope those few commenters, here and elsewhere, who failed to comprehend why this reflected exceptionally bad judgment will now recognize their error as well.

A while back I posted that I will not twit (tweet?).  I’ve since changed my mind, because so many people I admire and respect have become twitterers (tweeters?).  Over the past week or so, I’ve checked out twitter, and even posted a few of my own.  This, of course, makes me an expert on the subject.

My fellow curmudgeon, David Giacalone at f/k/a, posted a somewhat tongue-in-cheek critique of twittering and twitterers yesterday. 

At risk of being called a twit (or a thwowback), the f/k/a Gang is pre-emptively opting out.  This shouldn’t be a surprise coming from Proud Podcaste Pariahs.

Things might have improved a bit (or at least gotten a patina of adult and professional participation) since Time Magazine told us last year that “more often than not” Twitter’s members “are simply killing time.”  But, we’ve seen how often fellow blawgers jump on new technologies and crazes that end up creating an unmanageable and unjustifiable torrent of information and distraction.

If you think that constant marketing or attracting blawg visitors is at the core of your law practice (or your cyber-business), joining the Twitter revolution might make sense, as you follow dozens, scores, or maybe hundreds of other Tweeters throughout the day or hope they follow you.  But, I sure hope you’re not my lawyer (or my employee), adding yet another wave of cyber-distractions to your workday, instead of focusing on efficiently providing quality services.  For us, maintaining multiple levels of unessential multitasking is not a virtue.

David was careful to craft his post to reflect his own Luddite perspective, specifically noting that he has never been, nor did he intend to start being, on the cutting edge of technology.  But to some, most notably my other buddy Kevin O’Keefe, you would have thought that David posted that his mother wears army boots.

This is where things turned ugly.  Kevin responded to David’s post, both in a comment and a post of his own.

David Giacalone is the latest lawyer to dismiss Twitter as a mindless waste of time and to brag about the fact that he’s not using Twitter – like that’ll make other ignorant souls think more of him.

But hey, hang to your prejudices, ignorance, and a year old article in Time Magazine as reasons to tell lawyers that Twitter is not worthwhile.

Kevin provides a list of virtues of twitter as well.  I read through Kevin’s list and it all sounds great.  I have no doubt that each of the claimed virtue could happen.  Maybe.  But…that’s not exactly the twitter I’ve seen over the past week.

Before delving into my experience, note that Kevin is the main twitter cheerleader that comes across my twitter screen.  He’s like the energizer bunny of twitter, and uses it in pretty much the exact way that he promotes it to others.  He posts regularly, and its almost invariably about a new Lexblog client coming online, or a new post on Real Lawyers Have Blogs.  He markets.  And markets and markets.  Then he twits (tweets?) about marketing successes, large and small.  Kevin walks the walk as well as twits the twit.

That said, I have some trouble seeing it.  I follow Kevin’s twits amongst others, and find little there that supports the idea that we become “better lawyers through their growing networks on Twitter.”  Kevin’s twits are like watching a never-ending TV commercial.  Much as I admire Kevin, they don’t make me a better lawyer.  Or as Ron Coleman at Likelihood of Confusion puts it, Kevin mocks David but doesn’t really rebut him.  Kevin’s “virtues” are those only a true believer can love.

Others twit about what they are making for dinner (and what wine they enjoy with it, or that they have posted something on their blog, or, as in the case of Geeklawyer and CharonQC, they are as wild on twitter as they are elsewhere, though they twit constantly between themselves.  Lat twits in the third person, which somehow doesn’t surprise me. 

Some people twit constantly, even twitting to complain about their twitting addiction.  Others rarely.  Some substantively.  Others just to connect to someone, somewhere in the midst of a dreary day.  As a means of communications, it’s, well, strange. 

Twitter is what Kevin says it is, and it’s also what David fears it is.  It’s a disconnected, never-ending stream of consciousness series of one-liners that may, or may not, add or detract to your day.  My guess is that it’s a lifeline for lawyers who really want a water-cooler but don’t have one.  But it’s not exactly fulfilling, in that there’s no assurance that you get any real or timely reaction to anything you twit. 

Then again, many of the twitterers are followed by hundreds, even thousands, of others, assuming that they are online and reading.  And yet again, if you aren’t following twitter all day long, you can come back to find pages of twits of utterly no consequence that just sucks time and life out of you.

I use the word twit throughout as a big, since I’m well aware that the appropriate term is to call each 140 character or less post a “tweet”.  My curmudgeon head makes me feel compelled to poke a little fun at this odd new technology, as I’ve always been uncomfortable about new technology.  Yes, I’m a Philistine.  And I’m not adept at using twitter, don’t quite get much of it, and watch in amazement as others twit away all day long.

From where I sit, this is how I see twitter content break down:  About 30% mundane personal information (like what someone is having for lunch); Another 50% flagrant marketing for self-promotion;  Then there’s 10% of funny anecdotes or links that are of general interest to others;  Finally, 10% of actual communication between twitterers. 

Is this worth the time it sucks out of your day, particularly when added to the time checking RSS feeds, blog posts and links, news stories, emails and anything else that comes across one’s computer?  Not really.  If I’m busy, twitter is the first thing to go, providing the least benefit of all the myriad forms of hi-tech communications.  Way too many tweets of way too little value and interest.

But that’s my view.  I expect to tweet again, but only when I have absolutely nothing better to do and too much time on my hands.  No matter how sweet the marketing pitch is made, whether by Kevin or any of the other fans of twitter, it’s just not that useful, and to establish one’s twitter bones requires that one spend an awful lot of time tweeting, even if you have nothing to tweet about or no one cares to tweet you back. 

Those who are engaged in daily tweeting are invested in the technology.  To accept David’s views as reasonable is to admit that they are wasting their lives trying to validate this new technology.  There are, to be sure, thousands of people, lawyers, who seem to be engaged in twittering.  How many are active, or if they were being totally honest, benefit from it, is another story. 

There is a difference between being engaged in 100 ongoing kinda, sorta conversations, and having one decent conversation.  There is a difference between sifting through 100 advertisements, even from friends, to locate one cool link that you actually want to read.  If I get one meaningful piece of information out of 100 tweets, is it worth it?  That’s a choice each of us has to make.  Personally, if I need to connect to another human being, twitter is not going to do the trick.   It falls at the lowest end of the communication spectrum.

The harsh words between Kevin and David are very unfortunate.  Kevin is deeply invested in twittering, and is fighting against those, like David, with substantial credibility, calling his baby ugly.  Kevin need not have been so harsh.  If twitter is the tide that Kevin claims it is, then there is nothing that David could do to stop it from coming in. 

They both approach this new-fangled form of communication from different perspectives, different purposes.  Kevin markets, and sees marketing as a goal in itself.  David doesn’t.  I don’t either.  I understand Kevin’s purpose and reasoning, and realize that there are far more people trying desperately to market themselves to make a buck then people like David and me who find it very distasteful.  But my disdain for marketing isn’t nearly as strong as Kevin’s interest in promoting it, so I fully expect him to win every battle because he cares so much more than I do.  David’s not Kevin’s enemy.  Nor am I.  Kevin, and twitter, will have to pass muster with the thousands of others who will either care or not.  We’re just two old lawyers.

But I don’t begrudge those who are clearly enjoying it, finding it useful and beneficial and chose to spend their day tweeting away.  Tweet on, Garth.

Plattsburgh, like many upstate New York Cities, has a problem, according to WPTZ via Turley.  Bars close late at night and patrons, finding themselves out in the cold, suddenly have to go.  When you have to go, you have to go.  But if you do so in public, it’s an offense.  In Plattsburgh, the happy barhoppers were cited for disorderly conduct, a state penal law infraction, below that of a crime but sufficient to levy a fine and potential imprisonment.

Now this is where most people make the mistake of thinking that cities press these issues for the money.  Because it’s a state offense, the fines imposed by local courts aren’t kept by the local government.  Instead, they are required to remit the fine to the state, which then returns a mere 5% to the city, town or village.

So in Plattsburgh, the City does all the work, using its police to locate and cite, using its prosecutors to prosecute and its courts to handle the cases.  The 5% remittance likely doesn’t come close to covering the cost, and certainly doesn’t make them any money.  Plattsburgh has had enough of it.

Currently, the city follows New York State law and charges violators with disorderly conduct if they are found urinating in public.

But Beebie said disorderly conduct is a violation, and not a stiff enough penalty. “It’s not a crime. You cannot get a permanent record for it, but you do subject yourself to confinement and a fine,” Beebie said.

And the Plattsburgh City Council decided Thursday night that they should be able to keep the fines paid by people peeing in public.

While public urination may be a plague in Plattsburgh, and I defer to the good people of Plattsburgh to explain whether this is a phenomenon peculiar to them, the concept applies more broadly to all local governments across the state.  It applies to speeding tickets and other automobile related issues under the Vehicle and Traffic Law, for example, as well. 

When small town police busily enforce these laws, often peeing off residents and those merely traversing the jurisdiction, the claim is that they are really in the process of collecting revenue rather than enforcing law.  The old speed trap issues are raised, which suggest that laws and rules are crafted as a trap for the unwary and serve no legitimate purpose other than to be the local cash cow.

Now other states may well have different situations, but in New York, local police and courts and big time money losers.  The only thing worse than having the perceived “traps” is leaving people with the sense of persecution and doing so on the taxpayers’ dime because the fines are sent elsewhere.  It’s adding insult to injury.

The claim has long been the enacting local laws, as Plattsburgh has chosen to do, to avoid the cash obligation to the state, will make the state very angry with the locals.  For this reason, most localities don’t try to enact their own, parallel laws, so that those stopped within their jurisdiction for infractions can be prosecuted under local laws rather than state laws, and the local government can keep 95% of the fines.  What exactly the state would do about it, or can do about it, is never spoken.

Giving thought to this question, I have trouble understanding how the state can do anything about local government enacting a local law to address a local law enforcement issue.  Municipal home rule allows local governments to take those actions necessary to address their needs. It doesn’t require the state’s approval, except in certain unrelated instances, and the legitimacy of dealing with local issues, at local expense, provides a rational basis for handling the problem in a way that addresses local needs.

Still, this threat, that keeps local government’s in check, and keeps the fines flowing toward Albany, serves some very good purposes.  It prevents local government from enacting some of the dopier laws that local governments, lacking the competencies to grasp and the legal counsel to construct, might otherwise enact.   It prevents a crazy quilt of tiny jurisdictional laws that would make a Georgia Sheriff during Reconstruction seem utterly reasonable. 

And it prevents everyone’s worst nightmare, local governments realizing that they could create their own little cash machines by crafting some bizarre quirk, like a 55 mph road changing to 10 mph while passing through East Chazy for 27 feet.  For anyone attuned to the thought processes of local government’s, coming up with bizarre and ridiculous schemes is hardly a stretch.

As for Plattsburgh, it seems only right that they should get to keep the 95% of fines levied for public urination.  If Albany has a problem with that, it should just let its bars stay open past 10 p.m.

One might ordinarily expect that when a federal judge decides to publicly announce his intention to rule a particular way, he will do so.  This is especially true when it’s not merely the litigants in the courtroom, but the media as well.  But sometimes this doesn’t happen, and the only question one can ask is “why”?

Judge George Wu, when last we left him, had informed the government and lawyers for Lori Drew that he was not inclined to allow the government to introduce evidence concerning Megan Meier’s suicide at trial.  As reported by the AP, Judge Wu’s statement at the beginning of the week was:

“I don’t necessarily think the suicide is relevant to the crime charged,” Wu said, adding he thought details of Meier’s death would unfairly prejudice the jury. He said he planned to announce his final decision Friday.

That was Monday.  This was Friday.

Evidence from the suicide of a Missouri girl can be used by prosecutors against a woman charged with helping to create a false Internet identity that was used to harass the teenager, a federal judge ruled Friday.

It’s not so much that Judge Wu’s ruling is shocking in itself, as most people would have anticipated that this evidence, as irrelevant and prejudicial as it is under the government’s mangled theory of prosecution, would come in for no better reason then the fact that federal judges are not inclined to let law or reason hamper a prosecution.  It’s the shock of the turnaround.  What happened between Monday and Friday that caused Judge Wu to do an about-face?

Wu said he was now convinced that many prospective jurors would be aware of the suicide from reading news reports or seeing a recent episode of the TV show “Law and Order” that involved a similar scenario.

To the extent that this is really the Judge’s reasoning, it’s just horrible.  First, to let the media drive the admissibility of evidence at trial is utterly inexcusable.  Even if we assume that some jurors have heard something about the suicide, it has zero bearing on its relevance.  There is no “Law and Order” exception to relevance.  There cannot be.  Well, obviously there can be, as demonstrated here.

And what of the prejudice?

[Judge Wu] said he would instruct jurors, possibly at the outset of the trial, that the case was not about the suicide and that Drew is not charged with causing the suicide.

Falling back on the tried and true legal fiction that by instructing the jury, it changes something, is one of those dirty little secrets of the criminal justice system.  By pretending that the jury can somehow not allow the death of a teenager at the hands of an adult on trial affect their judgment, their emotions, their sensibilities, is a patently ridiculous notion.  It is flagrantly, undeniably, irreparably prejudicial, and this is clear and obvious to all comers.  Only someone in a black robe can pretend otherwise.

According to the St. Louis Dispatch, the government argued that the suicide evidence was necessary to make the story “logical”:

In court filings, federal prosecutors said that Megan’s death was essential to be able to tell a logical story to jurors and to allow witnesses to testify about what Drew allegedly did and said after Megan’s death.

It also demonstrates that Drew’s plot to “humiliate (Megan) and cause a troubled, depressed young girl emotional distress” succeeded, they say.

There’s a surface appeal to arguments like this, which is why they are used with such frequency when a prosecutor seeks to introduce inflammatory evidence that has no bearing on the crime for which the defendant is being tried.  Different words are used, “background”, “complete the narrative,” “tell a logical story,” but these are nothing more than code for getting wholly prejudicial evidence before the jury because without it, they jury won’t know how evil the defendant is. 

The purpose is to prejudice the jury.  The mechanism is the swinging back door.  Benign phraseology masks the insidious nature of the evidence, and trivializes that fact that there is no rational legal basis for subverting the rules of evidence.  There is no such thing as “background”, though it has now been approved many times without any decision providing any actual legal basis for its creation or rationale for why it trumps relevance, hearsay, or any of the million other rules that are applied rigidly against the defense.

When Judge Wu announced that he was not inclined to allow evidence of the suicide at trial, it was a powerful statement in support of the rule of law, even in the face of horrendous facts.  This is the sort of judicial strength that one prays for, the will to ignore the villagers with torches and pitchforks outside the courthouse doors.

This change of heart, or perhaps some other part of the anatomy, strikes a terrible blow to both reason and stability.  To Dean Steward, who is being pushed to trial while Judge Wu sits on motions to dismiss, this ruling changes his entire approach.  Preparing for trial requires some small degree of stability as to the evidence to be confronted.

But to the rest of us, this makes the legal system appear to be totally arbitrary.  How can a judge spin in circles like this?  When Judge Wu stated on Monday his intention to preclude suicide evidence, was he talking out of his hat?  Did he think about it at all, or was this just some off the cup remark on an issue of monumental importance? 

If he had given this thought, and it was more than some wild, thoughtless remark, how then can he spin on his heels and come out the exact opposite way by the week’s end?  Lawyers spend a great deal of their time trying to understand the law and how judges will apply it in a sane, rational, reasoned way.  Then something like this happens to make the system seem like a joke, where night becomes day and the sun rises in the west.  Try explaining to a layman how everything can change so drastically for no particular reason, and then ask him what he thinks of the law.

I’m told that Judge Wu is considered a smart, thoughtful judge.  Who am I to doubt this?  If I was a cynical person, I would supposed that this is just a typical example of a federal judge finding a way to rationalize screwing the defense and enabling the government.  After 25 years in the trenches, it’s what I expect.  For the sake of society, I had hoped this case would be different, and for a few glorious days, it seemed as if this case would be elevated above the basic “find a way to screw the defendant” approach.  I’m no longer so hopeful.

And some day, years from now, when you wonder how bad law happens, remember this reversal of fortune.

As much as I would love to lay claim to the title of “country lawyer,” I bow to a brand new criminal defense blawger that, in the course of a few posts, owns it.  The Life and Times of a Texas Country Lawyer by Paul Smith is, without a doubt, a hoot.

Paul lives on a ranch, which figures prominently into everything he writes.  His food is cooked by Chuckwagon Sally, who clearly has much to say about what goes on there, and is not one you would want to cross. 

I am sitting around the fire one day eating my grub that Chuckwagon Sally has just conjured up, listening  to a young lawyer complain about a recent trial he had just completed.  He was explaining to Chuckwagon Sally how the cards are stacked against you in a criminal trial and how much harder the defense had to fight vs. the persecution, that’s what Chuckwagon Sally calls “them”.  Chuckwagon Sally hears enough complaining from this youngster and pipes up and says,  “boy, a trial is like a trail ride,,,  after you have gathered up your cattle and you are getting off your horse, you have to try not to step in sh-t.”

Now I don’t have a clue what he/she is trying to get to here, but man, I’m hooked.  I have always had a soft spot for country aphorisms and analogies.  No, they rarely add much to the practice, but they are so much fun to read.  Like this criticism of a “persecutor’s” voir dire:

I recently picked a jury in a criminal case where the District Attorney was one of those “lawyers” with an impressive pedigree.

Now normally, when someone disagrees with me, in jury selection, I just thank them and move on, but he wouldn’t. He keeps trying to get this young mother of 2 to change her mind,,, to see things the way it can only be seen,, that is, his way. This young mother has the courage to express her views and will not back down from her beliefs. You know, where I’m from, you don’t continue to poke a stick into a bee hive, you just move on.

How can you not love this stuff?

The ability to turn that folksy phrase, to analogize to something so down home and rustic that the listener is left believing that they get it even when it makes no sense whatsoever, is something a “country lawyer” can do that a city slicker just can’t.  This is the polar opposite of those who love to use latin or legalisms as if any juror is ever persuaded by a lawyer rubbing their noses in his edumacation. 

Some lawyers can open their mouths and let these words flow out naturally.  These are the real country lawyers, and it works for them, often brilliantly.  For most of us, it would sound horrible and fake, no matter how much we like the words or the feelings they convey, but that doesn’t mean we can’t enjoy and appreciate a little country wisdom.

And sometimes, the message is very, painfully clear, such as the time Paul had to build a new privy for Chuckwagon Sally’s visiting sister from Georgia.

Chuckwagon Sally comes over to the construction site and tells Pepe, the construction crew boss, how to build the cabin the right way, or something like that. You have to understand, Pepe is a very proud man, who takes his job very seriously,, Pepe actually knows how to build things and how not to build things. Something Chuckwagon Sally said must have gotten Pepe’s hockles up, because when I look at the finished privy, I notice the rough side of the board making the seat is up and the smooth side is down. You never know how uncomfortable that makes the user,,, but I suppose Pepe did.

Hence my important jury lesson for today. Never be like Chuckwagon Sally in front of a jury,,, you can have all the education, understand all the psychology of people, have all the common sense and the superior intellect, even have the greatest argument, but if you piss off the jury, they’ll give you rough side up for your client. You’d better hope your lawyer knows about Chuckwagon Sally. Hope everyone has a nice day.

Now that’s a lesson everybody can relate to.  It’s my pleasure, city lawyer that I am, to welcome Paul to the blawgosphere. 

When I read Mark Bennett’s, the Texas Tornado, post uploading a motion onto JD Supra, it reminded me of the Whole Motion Catalogue, an initiative by Mark Mahoney of the New York State Association of Criminal Defense Lawyers way back when.  One of the common requests on the Association listserv was, “does anybody have a motion?” 

These requests always troubled me.  While it can very helpful to read someone else’s motion to avoid having to reinvent the wheel and to help develop a line of argument, most lawyers took the motions and did nothing more than changed the names.  Often, they would miss one or two, and the name of the original defendant would remain hidden somewhere in the body of the motion, raising an eyebrow if the judge happened to read the motion.  The problem is that once a motion is put out into the world, there’s no control over whether it serves as a model and inspiration, or a template for changing the names and neglecting to do the job.

The original Whole Motion Catalogue eventually became dated, as the law changed and caselaw developed.  One day, the Board decided to create a new one, over my objection.  Despite my misgivings about the concept, I contributed a number of motions.  Ironically, as it turned out, the other board members, the ones who were in favor of the project, contributed zip.  And so the idea died and has never been heard from again.  May it rest in peace.

I am a strong advocate of serious motion practice.  There should be no such thing as a generic motion, and every paper submitted to a court, no matter what the case, should be directed to the specific facts and circumstances of the case.  While the law doesn’t necessarily change, its application to the facts does and neglect of that is inexcusable.  The fact that so many lawyers treat motions like a joke fosters the very common judicial reaction of treating motions like toilet paper.  It makes me nuts when a judge can’t be bothered to read my motions.  I take the time to write each one, and the judge should take the time to read each one.  I point this out to judges when needed.

While helping others to be better lawyers is part of our obligation to the profession, helping them to be lazy lawyers, to skate by off the work of others, is not.  My motions represent my efforts, on behalf of and paid for by a client.  They are not created to let other lawyers claim ownership to their clients and charge them extra for work they took from me. 

Certain of my motions have gained surprising popularity, where I receive calls from lawyers I’ve never heard of asking for a copy.  They have got to be kidding.   I’m not here to do their work, or give mine away so they won’t have to do their work.  I could be flattered by these requests.  I’m not.  Do your job, man.

So I won’t be contributing to JDSupra.  I won’t be judgmental about anyone who does, but if you’re the type of lawyer who wants to glom someone else’s papers to avoid doing your job as a criminal defense lawyer, then I’ve got a real problem with what you’re doing. 

After 9/11, one of the many changes put into place was beefing up the forgotten service of the Air Marshals, those covert people on planes with guns who would travel across the skies to keep our planes safe.  On 9/11, there were 33 of them.  Today, there are somewhere between 3 and 4 thousand.  

We haven’t heard much about Air Marshals in a while, until now. Pro Publica decided to see how they were doing, and found out that it’s not very easy to find thousands of good people quickly.

Before 9/11, the Air Marshal Service was a nearly forgotten force of 33 agents with a $4.4 million annual budget. Now housed in the Transportation Security Administration, the agency has a $786 million budget and an estimated 3,000 to 4,000 air marshals, although the official number is classified.

But not all of these new people have turned out very well.

Since 9/11, air marshals have taken bribes, committed bank fraud, hired an escort while on layover and doctored hotel receipts to pad expenses, records show. They’ve been found sleeping on planes and lost the travel documents of U.S. diplomats while on a whiskey-tasting trip in Scotland.

Cases range from drunken driving and domestic violence to aiding a human trafficking ring and trying to smuggle explosives from Afghanistan.

On top of this, there have been numerous instances of “inappropriate” use of weapons, like when a gun was pulled over a parking space, or to shot up a Vegas hotel room, or when the gun was left in a lavatory and found by a teenager.  And that doesn’t cover drug smuggling or child sexual abuse.

So what is the Air Marshall service supposed to be?

The Federal Air Marshal Service presents the image of an elite undercover force charged with making split-second decisions that could mean the difference between stopping a terrorist and shooting an innocent passenger.

The difference for Air Marshals is that they are sent out to do their job on their own.  This requires a level of trust and professionalism that is different from any other law enforcement officer.  There’s no supervisor staring over their shoulder, no team behind them.  They are all alone, armed and capable of doing whatever they need to do, whether that’s to protect or abuse.

Only a fraction of them have been charged with crimes, and some degree of misconduct occurs at all law enforcement agencies. But for air marshals, the stakes are uniquely high. Their beat is a confined cabin with hundreds of passengers in firing range. There are no calls for backup at 30,000 feet, putting a premium on sound judgment and swift action.

No doubt the vast majority of Air Marshals have earned and deserve the trust and confidence placed in them.  But the fraction that have used their freedom and power to break the law represent a serious problem.  It reminds us that it’s not easy to cobble together a force overnight.

Under heavy congressional pressure, the government rushed to hire thousands of air marshals after 9/11. Partly motivated by enduring images of planes hitting the World Trade Center, the Pentagon aflame and a charred Pennsylvania field, 200,000 applied. With limited spots, the Air Marshal Service had an acceptance rate of about one in 40 — four times as tough as Harvard’s.

“We’re getting the cream of the crop,” then-TSA spokesman David Steigman told reporters. “The people who are going into the air marshal program are the best of the best.”

Easy to say.  Harder to do.  Background checks were inconsistent and sketchy, and hiring standards were loose and got looser.

In 2002, the agency decided that recruits no longer had to pass a rigorous firearms test requiring them to prove speed and accuracy in close quarters similar to an airplane. The test is still used in training but is no longer a hiring qualification.

After all, shooting a gun inside an airplane at 36,000 feet is pretty much like anywhere else, right?  Anybody can learn to do it.

The Pro Publica investigation is replete with instances of specific conduct that’s quite shocking, and calls into question the Transportation Safety Administration’s hiring and oversight of these cowboys of the sky.  It was so devastating that Bob Bray, head of the Air Marshall Service, responded immediately.

What was the Bray’s response? 

As an organization that was quickly enlarged in the wake of 9/11, growing pains are expected.

After all, all children experience growing pains?  Of course, that’s a very good reason not to put guns in the hands of children.

Air Marshals play a very unusual role in the scheme of law enforcement, and it hardly seems too much to expect that they will be adequately vetted in the hiring process, and properly trained and supervised, so that they can fulfill their lone wolf duties without becoming a new breed of government-empowered criminal.  It would be so nice to not have to find excuses or explanations for why yet another branch of law enforcement has proven unable to control its own.

Jon Katz at the blawg formerly known as Underdog raises a very important problem in his post about non-English speakers defendants, regularly subject to police using Spanglish as if it was a substitute for meaningful communication.

Too many monolingual people seem to think that if they speak louder or repetitively that ultimately they will be understood by a person who does not speak the speaker’s language. Too many people think that if a person understands such phrases as “Do you speak English” or “Fire, fire” that this means the person speaks the tens of thousands of other words and phrases needed to have a sufficient command of the English language.

You betcha.

But it’s not just cops who engage in this tomfoolery.  Lawyers do it too, and often because our non-English speaking clients refuse to admit that they don’t understand.  One of the first questions I ask of a client is whether he speaks and understands English.  The most frequent response is “si, yo hablo Ingles muy bien.”  Yeah, right.

Our non-English speaking clients frequently suffer from the Dunning-Kruger Effect.  They tell us they understand English.  They don’t.  We accept their representation that they understand English.  We shouldn’t.

The ability to communicate accurately with clients, both to adequately inform them about their cases as well as obtain accurate information about their cases, is critical to our ability to provide effective assistance of counsel.  If the client cannot speak English fluently, we cannot effectively provide assistance.

It is hardly unusual for clients to be able to communicate adequately in English for many purposes.  Order food.  Locate the bathroom.  Pay the abogados retainer.  Admire our tie.  But communicating legal concepts is outside the ken of many native English speakers.  You can bet that it’s not at the top of the list of phrases learned by non-English speakers. 

It is the criminal defense lawyer’s responsibility to assure that the client comprehends our communications.  Not merely kinda, sorta, but really, really.  That’s why we have interpreters, particularly interpreters trained in communicating the specialized information, language and concepts involves in criminal proceedings. 

As Jon points out, the wealth of faults in communications between police and defendant present issues that must be explored in the course of our representation.  Let us not repeat those faults in our own communications.