A call came in the other day from a young man who needed a lawyer to handle his appeal.  After telling his story, which included a part about his dissatisfaction with his trial lawyer because of his inability to achieve the result that the young man desperately sought, my caller told me about a defect in the conduct of his trial.  It was a very real defect, but it offered no solution.  I tried to explain a problem so that the caller would have a clearer understanding of what he was seeking. 

The problem is one that I, and every other lawyer who handles appeals, faces regularly.  Different errors result in different outcomes.  Some, such as failure to prove guilty beyond a reasonable doubt, will result in a reversal and dismissal on appeal.  Others, such as a mistaken jury charge, result in a new trial.  Still others, such as admission of improper evidence, could go either way, according to whether the error undermined the evidence to such an extent that guilt was unproven, or the evidence was bad but inconsequential.

This distinction is lost on many defendants.  It’s also lost on many judges, who have never had the experience of being responsible for the life of a living, breathing person.  Defendants do not appeal because they want to correct injustice or error.  Defendant appeal because they want to be free, or at least freer then they would be otherwise.

For some defendants, there is a hidden burden in retaining a private lawyer to prosecute an appeal.  It’s an expensive proposition, regardless of the seriousness of the crime.  Most of the time, the defendant is incarcerated, and has left a family behind.  Regardless of what underlying crime is involved, most haven’t managed to amass a vast fortune that will leave their children in comfort.  At best, they have just enough savings, after defending at the trial level, to put food on their family’s table.  The appeal can easily wipe that out, leaving the children hungry.  It’s something that every decent lawyer needs to bear in mind.

My caller was adamant that he had a great appellate issue, and he was willing to bet the farm on winning.  After listening to his story, and accepting its accuracy for the sake of discussion, it was clear that he did indeed have a great argument.  In fact, it was a fascinating argument, one that any appellate lawyer would love to argue.  But there was a glitch.

The nature of his issue would, should it prevail, have resulted in a reversal of conviction and remand for a new trial.  The problem was that the defendant was dead in the water at trial.  It was a slam dunk case, as it had been the first time around.  The error, egregious and pointless, was clear, but so was proof of guilt.  There was no likelihood that a necessary witness would be lost, or that memories would fade. 

So after our discussion, I explained to the defendant that I would love to take his case, to prosecute his appeal, to right the injustice that was done to him.  But at the end of the day, there were a few things he needed to consider before retaining me.  First, the cost of retaining me to prosecute his appeal would likely leave his family, his children, indigent.  He was no criminal mastermind, and his crime did not produce enough ill-gotten gains to cover the tab.

Second, despite the fact that the trial error was relatively clear, and appeared to be well preserved, there was no assurance that the appellate court would reverse.  There is never a guarantee of reversal, and appellate courts have been known to fudge the details, including the horrendous conclusion of harmless error, in quickly disposing of appeals where they are simply not inclined to reverse.

But the third reason was the kicker.  In the event that all went well, no perfectly, the upshot of these efforts, this cost, the burden, would be a new trial.  And if the conviction was reversed and remanded for a new trial, the likelihood was extremely good that he would have the same ultimate experience the next time around as he had the first.  Conviction.

It would have been my honor to represent this defendant.  But I could not, in good conscience, take his case without him understanding that at the end of the day, there was a strong likelihood that he would find himself in the same legal position as he was at the moment he called me, but with a family left in poverty as well.  There is no ethical prescription compelling me to explain this to a potential client, but it is simply the decent thing to do.

Of course, I am no more capable of knowing the future then anyone else.  There are always possibilities, foreseen or not, that could result in a monumental change in circumstances.  The one witness is hit by a truck.  The evidence is lost by an incompetent property clerk.  The prosecutor has a sudden, overwhelming feeling of sympathy and declines to retry the case.  The prosecutor somehow completely drops the ball and the defendant is denied his statutory speedy trial right.  Who knows.  It could happen.  But it’s a long shot.  A real long shot.

One of the most frequent questions asked by defendant is, “what are my chances?”  Not being a great oddsmaker, I rarely give numbers, and almost never give numbers that suggest that a positive outcome is likely.  My preference is to explain the situation in real terms, and leave it to the defendant to decide whether to roll the dice. 

In many respects, the criminal justice system is like a casino.  While we do everything possible to improve the chances of winning, it ultimately comes down to a roll of the dice.  No one ever knows for certain whether a defendant will roll a 7 or crap out.  But the analogy fails in one critical respect:  A gambler can walk out of a casino any time he wants.  Once embroiled in the criminal justice system, a defendant doesn’t have the option to decide that he doesn’t want to play.  He’s in the game, whether he likes it or not.

The least I can do is make sure that the defendant understands the rules of the game so that he can make the most rational choice.  Then again, the next lawyer he calls may well tell him to come on down with his retainer in hand so he can get to work. 

Many significant legal decisions produced vast good for society, but nothing for the named defendant.  Had the defendant chosen not to pursue an appeal, or aimed his sights only on those issues that would have a possibility of achieving the outcome he sought, rights that are now cornerstones of the criminal justice system might never have happened.  But a criminal defense lawyer’s first duty is to the living, breathing person. 

Nicholas Kristof’s New York Times op-ed celebrates Barack Obama’s election for a very different reason then his race or policies. 

Barack Obama’s election is a milestone in more than his pigmentation. The second most remarkable thing about his election is that American voters have just picked a president who is an open, out-of-the-closet, practicing intellectual.

What are you suggesting, Nick, that Sarah Palin wasn’t smart?  Sorry.  I couldn’t resist.

Maybe, just maybe, the result will be a step away from the anti-intellectualism that has long been a strain in American life. Smart and educated leadership is no panacea, but we’ve seen recently that the converse — a White House that scorns expertise and shrugs at nuance — doesn’t get very far either.

Kristof goes on to argue that intellectualism has not proven to always be the cure for society’s (both this and others, going back as far as Nero and Rome) ills.  But lack of intellectualism, which has been touted ad naseum as the alternative, has proven to be even more of a failure.  Anti-intellectualism has an appeal to many Americans, since it elevates their thoughts and opinions on a subject to a status of worthiness that they would otherwise never enjoy.  “Common sense” has become a mantra for those who don’t want to pull a muscle by thinking too hard.

What has this done for us in producing our upcoming decisionmakers?

We can’t solve our educational challenges when, according to polls, Americans are approximately as likely to believe in flying saucers as in evolution, and when one-fifth of Americans believe that the sun orbits the Earth.

Almost half of young Americans said in a 2006 poll that it was not necessary to know the locations of countries where important news was made. That must be a relief to Sarah Palin, who, according to Fox News, didn’t realize that Africa was a continent rather than a country.

I personally don’t believe that Palin didn’t know Africa was a continent.  There’s no reason to exaggerate.  Things were plenty bad without this allegation.

But it’s not entirely clear that America’s election of an out-of-the-closet intellectual was intentional.

Granted, Mr. Obama may have been protected from accusations of excessive intelligence by his race. That distracted everyone, and as a black man he didn’t fit the stereotype of a pointy-head ivory tower elitist. But it may also be that President Bush has discredited superficiality.

Whether superficiality has been recognized, no less discredited, is a separate issue.  While an overwhelming number of Americans believe that the Bush administration was a massive failure, I doubt that many spend a lot of time pondering the question of how so many patriotic Americans could make such horrible policy choices.  I’m fairly confident that most Americans who voted for Bush in 2004 aren’t wondering how they could have missed the obvious signs of superficiality back then.

Kristof”s discussion neglects the fact that intellectuals are not a monolithic block, all in agreement about how to solve problems.  Indeed, varying factions within the intellectual community harbor fundamental disagreements with each other, causing them to call each other by such harsh names as “Keynesians” and “Supply Siders.”  Ouch.  There is still plenty of room for disagreement and debate, even if it involves words that most of us would never use at a cocktail party.

But the idea that ideas are back in fashion is one that I find hugely appealing.  And for those who haven’t had much reason to flex their intellectual muscle over the past 8 (26?, 50?) years, please consider some light weight training first.  The last thing we need now is a nation in spasm.  We already have enough pain.

Aside:  The New York Times Magazine has a fascinating article about how the Senate failed, over the past 8 years, to fulfill its duty as a counterweight to the forces of superficiality.  What is remarkable is how politics and ego remain the primary problems that concern the senators interviewed.  The most interesting part of the article is the penultimate paragraph:

For all of the legislature’s complaints about being excluded from the political process during the Bush years, it seems fair to question whether Congress really wants to be a full partner in America’s government. Senators may not like being kept in the dark, but they seem to prefer to leave the big decisions — especially those concerning national security — to the executive. “There’s a psychology of vassalage to the president,” Fein says. “They don’t want to be out there on a limb.”

Whether our next president will seek to continue the unchecked expansion of executive power and secrecy, as this is not a defect of either the right or left, and whether Senators will abide it has yet to be seen.  Hopefully, a professor of Constitutional Law will have a deeper appreciation of why the Senate exists and that unfettered executive power may not be a good thing, even in the hands of an intellectual. 

On the other hand, the underlying concerns of our senators hardly give a warm and fuzzy feeling, when they happily trade-off the public welfare to play the game of politics.

Scott Henson’s description of his encounter with police while walking with his granddaughter has received significant attention, as it well should.  What is curious, though not entirely surprising, is how many comments Scott received at his Grits for Breakfast post from people who blamed him, some rather vehemently, for “causing” the problem.

Why?  Because Scott didn’t travel the path of least resistance.

The gist of many commenters is that this problem could have been “avoided” had Scott merely cooperated with police rather than challenged their authority to detain and question him for no better reason than a 911 call was made about a white man walking with a black child.  An early commenter wrote:

Simply informing the officer, upon initial questioning, that you are walking your granddaughter home from the park after an unexpected but enjoyable morning of babysitting. And boy my granddaughter sure does like to pet those cats down the street. Might that have gone a long way to a more civil relationship between police and community. Geez. What an uptight prick.

A later commenter wrote:

C’mon Grits, why don’t you stop being so outraged for a second and look at from the police perspective.

Someone called 911 about a suspicious person with a child. In this age of litigation, the police have to check it out. Imagine if that child had turned up missing? There would be a blog post railing about how the police were too lazy to just make a quick stop and investigate things. Isn’t it better for all parties if the police are protecting and serving?

As for refusing to answer questions, that is your right but it is certainly unusual that a person with a child would refuse to cooperate with the police in this situation. You basically turned a quick interaction into an ordeal because you forced the police to dig deeper.

As for your tired comment about how the police should be catching “real criminals”, your actions are the reason additional cops showed up. Your actions and attitude caused a red flag to go off and additional officers showed up in case things when south. That is for officer safety reasons and is perfectly reasonable.

I don’t expect you to agree with me but attitudes like yours are the reason police get jaded. They were just doing their job but you use it as an opportunity to get on your usual anto-police soapbox. Continue patting yourself on the back for tying up three officers due to your huge ego and problem with authority.

Others agreed.  This presents a comment issue, and as Scott later considers, a problematic choice for the person who finds himself in this situation.  The issue was succinctly raised by this comment :

There’s a difference between “having the right” to do something and it “being right” to do so.

GFB, you had the absolute right to act as you did. But don’t ask others to shed a tear for your inconvenience. Your encounter could’ve been resolved in 30 seconds — heck, the officer might’ve even apologized! — but you’ll never know.

Sometimes, a question is just a question.

Was it wrong to exercise the right to be left alone?  It’s probably true that the encounter would have been over much quicker, and with far less tension, had Scott taken the path of least resistance and just cooperated.  In the interests of protecting his granddaughter from witnessing a confrontational encounter, this might well have been the best choice under the circumstances.

But if everyone takes the path of least resistance, then there is no limit on police encounters, and the right to be left alone becomes a fiction.  Someone has to stand up for this right for it to exist.

Many of the comments came from police apologists, who would expect that all citizens should bow to police simply because they are the cops.  From their perspective, citizens must comply with police or, by definition, the citizen is wrong.  As for the police, they are “just doing their job,” which presents a disturbing notion of what that job involves.

The apologists, and even those who took the position that presumes the police would have been reasonable and understanding if only Scott hadn’t been confrontational, are operating under an assumption that I am unwilling to make.  Far too many people have been cooperative with the police, and have received a less than understanding reaction.  Had Scott been cooperative from the outset, there’s nothing to suggest that they wouldn’t doubt his explanation that he was the grandfather of a black child, and taken him into custody until they could confirm from the mother that he wasn’t kidnapping the child.

Still others suggest that when a child is involved, an excess of caution on the part of the police is justified.  Every parent can appreciate this argument, since none of us wants to see a child harmed or taken.  But when the only factor that seems to suggest anything unusual is a white man with a black child, it strains our sense of justification to the breaking point. 

Beyond the poignancy of Scott’s telling of the story, and the pain of being in the situation, this post really touches on some basic questions of how the police should conduct themselves with citizens and how citizens should conduct themselves with police.

One last concern.  Many commenters noted that this situation arose because someone decided that Scott’s walking with his granddaughter was “suspicious” and called 911, making the caller the source of this confrontation.  This is absolutely true, and reflects the reality that different people have a different level of sensibility as to what constitutes “suspicious” behavior. 

But that puts all of us at risk to the most sensitive, sometimes crazy, person with a telephone.  It’s not up to unduly sensitive, maybe peculiar, even racist, people to dictate who has the right to be left alone.  Any idiot can call 911.  That doesn’t dictate how the police handle the call or the situation. 

There is a reason we train police officers and demand that they use that training properly, so that the lowest common denominator doesn’t control who gets to walk the street unmolested.  The police are responsible for how they conduct interactions with citizens, not the 911 caller.  And citizens are responsible for how they conduct themselves with police.  Don’t fault anyone for conducting themselves in accordance with the freedoms that define America.

As the victims’ rights movement continues to press forward, making its emotional appeal to the public, lawmakers and judges about how victims have a right to participate in criminal prosecutions, few have taken the time or made the effort to consider how this highly sympathetic group could wreak havoc to the criminal justice system.  Duke third year law student, Erin C. Blondel, does an excellent job addressing this problem in her Duke Law Review Note, “Victims’ Rights in an Adversary System.”

After describing the historical and doctrinal bases for vindicating the public interest through the enforcement of law by criminal prosecution, and noting the well-developed ethical duties of a prosecutor in seeking justice rather than trying to help the victim fulfill whatever interest he or she might have at stake in the proceedings, Blondel notes that it has resulted in the development of an adversary system where the parties to the proceeding, the government and the defendant, hash it out using a well-conceived set of rules designed to provide as much justice as our system can muster.

Stick the victim into the middle and the system, a house of cards at best, falls to the ground.  Congress tried to skirt the issue by enacting the Crime Victims’ Rights Act of 2004.

Victims’ rights proponents, at least, have enjoyed enormous success persuading Congress and state legislatures to incorporate victims into criminal prosecutions. But pro-victim scholars and legislators have assumed uncritically that the law should remedy the injustice of excluding victims by incorporating them into proceedings. In their concern for victims’ suffering, however, victims’ rights advocates have not addressed the theoretical and practical implications of their solution. In fact, commentators have long recognized a core conflict between the adversary model and third-party interests.

The conflicts created apply to both sides.  Prosecutorial discretion and decision-making would be conflicted between public and practical concerns, and those peculiar to the victim such as compensation or personal vengeance.  The conflict for the defense is more fundamental, when the “rights” of victims conflict with the “rights” of defendants.  Whose rights come first?

The CVRA was passed quickly, with little discussion.  It’s language discusses broad, sweeping “rights” without providing much direction in how these rhetorical concerns were to be implemented, no less implemented consistently with existing law and ethical responsibilities. 

It grants victims eight substantive and procedural rights: the right to be reasonably protected from the accused, the right to be notified of public proceedings, the right not to be excluded from public proceedings, the right to be heard at designated proceedings, the right to proceedings free from unreasonable delay, the right to confer with the prosecution, the right to restitution as permitted by law, and the right to be treated with fairness and respect for their dignity and privacy. Nowhere does the statute state how these rights should affect courts’ and prosecutors’ decisions during criminal proceedings.

Ultimately, Blondel contends that the “rights” conferred by the CVRA should be construed narrowly, under the basic principle of the prosecution showing victims the respect and courtesy of listening to them, communicating with them and considering them in their decision making.  But not letting victims pull their strings.

Rather than conferring broad rights on crime victims, courts and others should simply show courtesy and respect toward crime victims. They should allow victims to attend public proceedings and share their thoughts. They should communicate with victims and remember them when release or restitution law requires it. But courts and prosecutors should not change their decisionmaking for victims. By observing this distinction, they can implement the statute that Congress crafted and the justice system demands.

While Blondel’s analysis and recommendation helps to straddle the gap between a law that satisfies political ends without regard to its interference with centuries of legal development, constitutional rights, ethical prescriptions and insufficient procedural detail to apply it consistently, there is one overarching conclusion to be drawn from this very thorough note.  It’s a bad law that, if it were to be applied in the spirit proposed by victims’ rights advocates, would undermine basic precepts of the criminal justice system.

There is nothing wrong with showing crime victims courtesy, respect and consideration.  That should be inherent in the job of a prosecutor.  But to allow victims to have a right in decisionmaking on any level would, by definition, come at the expense of any one of the multitude of rights already in place.  And, as should be no surprise, the party whose rights would be most exposed would be the defendant. 

In a surprisingly severe, maybe even harsh, review of his fellow law professors, Dave Hoffman at Co-Op has posted a critique of the lawprof blawgosphere somewhat obsessive expression of political views, issues and arguments.  It ain’t pretty.

The brilliance of the political blogosphere throws a harsh and unflattering light on the law professor blogosphere. I don’t mean to harp, but it is striking to me that almost all political commentary you’ve seen on law professor blogs this last 6 or 12 or 18 months has been ill-informed, or vapid, contentless, and much, much too meta. (Yes, I get the irony. Indulge me.)

Not everything a professor says is interesting. When 40, 60, 100, or more students laugh at your jokes, I guess it becomes easy to forget. Generally, people add value by writing and talking about things they know something about. Thus, I agree with Leiter that Bill Henderson is one of the country’s best law professor bloggers. Most law professors have no personal experience with the innards of a modern political campaign (serving as an consultant on a committee about a substantive legal issue isn’t the same at all). We aren’t well positioned to know what commercial will appeal to lower-middle-class voters, or what song will inspire youth turnout. But we’ve blogged about it anyway.

Whoa.  This is largely the political piece to the practical piece that the practical blawgosphere has mentioned more than a few times in the past.  But has it really been that bad?

Some lawprof blawgs have gotten totally out of the control, post after post after post attempting to rationalize political choices as if their say-so is any more valuable than anyone else’s.   Of course, law professors are every bit as entitled to express their views, and the arguments in support, as anyone else.  Indeed, even when they’ve chosen to express them in ways that are beneath the usual nuanced and collegial manner the characterizes the academic approach, it must be remembered that these are people too.  They are allowed to get caught up in their positions, and enjoy a little heat under their collar.

If I understand Dave correctly, which he informs me occasionally that I don’t, his problem is that law professors enjoy a level of credibility by virtue of their station that suggests that their opinions carry great weight.  Dave suggests, again if I understand him correctly, that they really shouldn’t carry such weight, and don’t deserve the attributed credibility.  Compared to those who really do know what they are talking about, the lawprofs have been sucking wind.

I’m not so sure that I agree that the lawprofs have been quite as vapid as Dave says.  Sure, there has been plenty of pumping and stumping going on, particularly on the libertarian front, and much of it flagrantly biased.  So what?  It’s not their fault that they are simultaneously law professors and people with strong political views.  And to the extent anyone heeds their unwarranted arguments, that burden falls on the shoulders of the reader, not the writer. 

On the other hand, I’ve found many interesting arguments, claims and issues that raised my consciousness during the campaign.  More often than not, I was left markedly unimpressed, but I appreciated reading other points of view.  In fact, I felt better about reading them and thinking that they were unpersuasive then I would have felt had I remained insulated and smug.

But my hope is that Dave’s point, to the extent that others in the academy take it to heart, will be recognized as extending beyond the walls of politics.  A long time ago, I argued that the blawgosphere was comprised of self-contained insular groups, one of which was the lawprofs.  Common fodder for their discussions was the impact of laws and decisions. While they parried and riposted amongst themselves, they rarely slummed in the practical blawgosphere.  After all, what could 25 years experience in the trenches bring to a discussion amongst scholars?

Some lawprofs don’t like me arguing this point, and take offense.  They pay no attention to the practical blawgosphere, I’m told, because we’re just a bunch of dumb lawyers who are incapable of thinking and writing on a doctrinal level.  And, I’m told, they get annoyed by this.  Well, I sure would hate to annoy anyone.

I read most of the lawprof blawgs regularly, because they raise great issues and identify consequential decisions that I might never know about without them.  They add a great deal to the blawgosphere.  But as with Dave’s complaint about the fact that they may not have perfect pitch on politics, they could learn a little something from working lawyers as well.  No, we’re not all brilliant.  But frankly, neither are they.

Over the past few months, I’ve seen almost no cross-discussion between the practical blawgosphere and the law professor blawgosphere from the lawprof side of the road.  Is the practical blawgosphere just that worthless in the eyes of the lawprofs, or do they remain holed up in their Ivory Tower?   Either way, maybe we could learn more from each other if we all got together for a beer every once in a while.

Robert G. Dunlop is the local yokel town justice in Chazy, New York.  A former State Trooper, he found a seat where he could dispense justice as he saw it, and apparently with the approval of the Chazy residents.  Having never known that there was place in New York named Chazy, and still somewhat incredulous that anyone would name a town Chazy, I was unaware of Justice Dunlop’s existence until now.

Thanks to the North Country Gazette, we learn that Justice Dunlop of Chazy is yet another shining example of why the whole non-lawyer local justice system, as profiled by the New York Times in the “Tiny Courts” expose as being perhaps the most disgraceful example of political cowardice in the State of New York.

The state disciplinary panel for judges has determined that Chazy town justice Robert G. Dunlop should be censured for accepting a guilty plea from a defendant whom he sentenced to serve 90 days in jail when the defendant was not represented by an attorney and was incapable of understanding the proceedings.

It seems our former State Trooper wasn’t overly concerned with the fact that the defendant brought before him by his fellow brothers in blue was intoxicated and cognitively impaired.  But who cares if the defendant understands what’s happening, when we have a judge like Dunlop present to protect his rights?

And what did this miscreant do to deserve a sentence of 90 days on his immediate plea?

Remy Orozco of Hostis Civitas recently made the leap from young public defender to young private practitioner.  But he’s hardly a card-carrying member of the Slackoisie, having learned his lessons well from the struggle.  That, of course, doesn’t mean that he can’t enjoy the occasional glimpse of others acting foolishly.

Standing on line at the clerk’s office is one of the quintessential activities that mark the practice of law.  For all our feigned self-importance, lawyers stand on lines like everyone else, subject to the scrutiny and approval of a handful of people who can make our lives easier or harder, and without whom we are often left to dangle in the wind.  Court Clerks.  We love them.  If we don’t, they will make us miserable.

Remy posts about watching a young lawyer learn this very important lesson. 

I sat in a clerks office today and watched as this young new attorney learned a valuable lesson in civility. This young buck was so new that he did not even know his bar number and someone forgot to tell him that while his family my be impressed by his new title, it hold no special significance in a clerks office.

His first mistake was coming in and cutting to the front of the line. His excuse was that he was not here to vote and had to file some very “important” papers. I and much senior and admired attorney were in line in front of him and my friend could tell that I was about to say something but with a wise and gentle grip of his hand I stood back and watched the show unfold.

Ah, the memories came flooding back.  Watching as the newbie was about to tell a clerk with 20 years under his belt that he was a lawyer, and just hoping I wouldn’t get hit with the spray of blood that was about to cover the room.

Now Ms. B is a kind and gentle soul and the next ten minutes was a masterful example of how to totally make someones life miserable without never breaking a smile. I watched as Ms. B fed this young man’s ego and systematically broke him down. As Ms. B began reviewing the documents, I began to hear her explain how she could not accept these documents from him because he had not brought the proper number of copies to be filed.

The young attorney began walking over to the copy machine but was politely reminded that the copy machine was not for public use but that they could make copies for him for a fee. He fumbled through his wallet for change when he was informed that they do not accept debit cards. After the copies were made, she began explaining to him how our court has local rules which require that the attorneys of record sign the documents and that their bar numbers and contact information on them which he had not prepared.

As the sweat began to run down his forehead I sat back with my wise friend and mentor and chuckled as he began calling his boss on the phone. Ms. B kindly reminded him that cell phones are not allowed in the building. He asked if he could use a county phone and apologizing Ms. B informed him that unfortunately those phones were for county personnel only.

As this young buck scurried down to call his boss, I and my fellow friend enjoyed a great chuckle with Ms. B and the girls as we filed and made copies of our documents. We had just finished filing our papers when the young man came back upstairs with a look of defeat on his face.

I always thought of it as a look of fear and dread, when the young lawyer came to the realization that others new his secret, that he didn’t really have a clue and that he was powerless, despite the law degree that he clutched in his sweaty little hands, to do anything about it.  What would he tell his boss?  That he failed?  That he screwed up?  That he was impotent?  Some young people have a problem acknowledging that they may still have a little to learn.  It’s an ego thing.

When I started practicing, I found it incredibly useful to ask clerks for their help, telling them that I wasn’t sure how to accomplish a task and would very much appreciate whatever assistance they could give me.  Invariably, the clerks would happily walk me through whatever needed to be done, often allowing me to circumvent any potential problems that I had created through some technical error, and ultimately accomplishing the task I was there to do.  The clerks were more than happy to help, and enjoyed the show of respect I offered for their knowledge and experience.  I was indeed appreciative, for their aid allowed me to complete my work quickly and properly, as well as learn their way of doing things.

Remy’s clerk, Ms. B, did this young lawyer a mitzvah.  He learned in one shot where he, the young lawyer, fit within the courthouse pecking order.  It will serve him well in years to come and hopefully prevent him from making many enemies who will cause him and his clients grave problems.  Clerks can do that.  It isn’t merely a matter of showing deference to those with the capacity to make your life miserable, but understanding that no matter how many times your mother told you that you, as a lawyer, stood at the top of the food chain, you don’t.  You’re just a cog in the wheels of justice, and the wheels don’t spin unless all the cogs are working together.

It’s a great lesson, and a great story.  It’s another subject that should be covered in law school, clerk appreciation and self-deprecation.  But if they did, then we wouldn’t get to enjoy watching these kids being taught a lesson while we are waiting around the clerk’s office.

I have always been the type of person who accepts others for who they are. It never really mattered to me whether someone was black, white, gay, straight. As long as they led happy and productive lives, who’s to say they should not be who they are? Who would care?

So, you can imagine my heartache and fury when I found out that Proposition 8, a constitutional amendment banning gay marriage in the State of California, passed. I could not believe it.  Just a couple of months ago, the California Supreme Court held that it was unconstitutional to refuse to recognize gay marriage.

So what prompted this change of heart? Well, let’s just say that when church and state mix, the outcome is never good. The church follows the bible, which says that marriage is between a man and a women and that it should stay that way. This is the twenty-first century, and in this writer’s opinion, we need to accept that times are changing. These changes need to be embraced. I can understand how people are afraid to accept those who are different, but needs to become a more open and accepting nation.  I do not suggest that others should change their religious beliefs, but that they should not demand that everyone adhere to them.

Since why should the government have the right to define the meaning of love? If two people are in love regardless of their sexual orientation and they are in a committed relationship, why is it the government’s business to decide whether or not they can be together? It’s just so frustrating because it is not like they are hurting anybody and they’re not infringing on other people’s rights. Is wanting to start a life with someone nowadays considered wrong?

The bottom line is that marriage is a partnership between two people who are in love and want to share their lives together. It should not matter if that partnership is between a man and a women or a man and a man or a women and a women, as long as there is love between them and they are happy. Then what is the problem with them wanting to get married? As far as I can see, absolutely nothing!

Doug Berman posts from a press release reflecting the combined wisdom of 25 organizations and individuals, under the umbrella of the Constitution Project, a report entitled “‘Smart on Crime: Recommendations for the Next Administration and Congress.”  It seeks to provide a cogent list of criminal justice initiatives that should make it onto the agenda of the new administration.

The catalogue identifies 43 criminal justice priorities in 15 issue areas, makes recommendations for congressional and executive action, and provides in-depth background information on a broad array of subjects. It also includes lists of issue-based resources and experts.

The report contains the following chapters:

1.Overcriminalization of Conduct, Overfederalization of Criminal Law, and the Exercise of Enforcement Discretion
2. Federal Law Enforcement Reform – Improve Investigative Techniques, Including Eyewitness Identification, Incentives to Testify, and Interrogation
3. Forensic Science Reform — Federal Oversight and Standards
4. Federal Grand Jury Reform
5. Federal Sentencing Reform
6. Asset Forfeiture Reform
7. Innocence Issues
8. Prison Reform
9. Pardon Power/Executive Clemency — Breathe New Life into the Pardon Power
10. Re-entry — Ensure Successful Reintegration After Incarceration
11. Public Defense Reforms-Make our Communities Safer by Supporting Quality Public Defense System
12. Death Penalty/Habeas Corpus Reform
13. Juvenile Justice Reforms
14. Fixing Medellin: Compliance with International Law and Protecting Consular Access
15. Victim Issues and Restorative Justice

At 263 pages, this seems like a criminal justice policy wonk’s dream, but somewhat overbearing for those of us who work for a living.  Still, this is all about policy, and if there was ever a place to get into the nitty-gritty in extreme detail, this would be it. 

After the 2008 elections, America’s policymakers will take a fresh look at the criminal justice system, which so desperately needs their attention. To assist with that review, leaders and experts from all aspects of the criminal justice community spent months collaboratively identifying key issues and gathering policy advice into one comprehensive set of recommendations for the new administration and Congress. This catalogue is the fruit of those labors.

Whether America’s policymakers will really take a fresh look at criminal justice has yet to be seen, but if they should (and they should), this catalogue provides a thorough and thoughtful place to start the discussion.  If our policymakers want “change”, this would be a darn good place to start.

Via Eugene Volokh, a Suffolk County judge raises the dreaded specter of Heller in passing on an Article 78 Petition in Colaiacovo v. Dormer.  The petitioner came to the attention of the Suffolk County Police as a result of his wife having taken his licensed gun, left at home without being placed in a locked safe or otherwise rendered inoperable.  This not being bad enough, they sought to revoke his permit.

Colaiacovo challenged the revocation, and the County subsequently modified it by allowing him to keep the gun at home, but revoking his “sportsman” endorsement which allowed him to carry it outside the home.  He challenged this as well, upon the basis that the underlying predicate conduct, having the weapon at home in available and operable condition, was consistent with his Second Amendment rights per Heller.

The Court held:

In view of D.C. v. Heller there is a question as to whether the Petitioner’s conduct relative to properly safeguarding his handgun was within the bounds of his constitutionally protected 2nd Amendment rights. If the Petitioner acted in a manner consistent with his existing constitutional rights relative to the care and safeguarding of his pistol, the State of New York may not diminish such other rights as he may otherwise possess or have been previously granted solely on the basis that some provision of State law … dictates that he behave differently in derogation of his Second Amendment Rights. Simply put, the State of New York … [is] no longer in a position to require that a handgun be stored in an inoperable condition or otherwise locked up if it is otherwise legally present in the owner’s dwelling….

As Eugene points out, Acting Supreme Court Justice Gary Weber has jumped over a few details in his discussion.  The first, and most obvious, hole is whether the Heller decision applies to the states via incorporation through the 14th Amendment.   While this may not be a major stretch, no one has as yet decided this piece, and Justice Weber seems to simply assume it’s a done-deal.  It may well be one day, but these are the sorts of decisions judges need to make before they apply federal constitutional decisions to state conduct.

Second, Justice Weber appears to toss the question back to the police department to consider what, if any, limitations may properly be placed on a gun in a home.  While he concludes that New York can no longer require that a gun be locked up or made inoperable, his remand suggests that there could be other things are can be constitutionally required.  What those things might be is unclear.

What’s quite peculiar about this decision is that Justice Weber isn’t kicking the issue back a court (in New York, the Supreme Court is the lowest level state trial court), but to the administrative agency that makes the initial determination, the Suffolk County Police Department’s Handgun Licensing Officer.  Since when would a decision about the constitutional acceptability of limits on the Second Amendment be left to a police department licensing officer? 

If I were a betting man, it wasn’t Justice Weber’s purpose to place the onus on the Police Department to decide what, if any, limits can be placed on a handgun in a home, but rather to give the PD the chance to reverse its prior decision so that there won’t be a decision reversing them.  They don’t like to reverse the police department in Suffolk County.  It’s unseemly.

But I similarly doubt that Justice Weber considered the significance of the wording of his remand order either.  Had he done so, he would have realized that it was his place, and not the cops, to make a ruling on whether there were any other constitutionally acceptable limits to be placed on a gun in the home.  Heller, assuming it was incorporated, was clear on this one point, if little else.  If it’s a normal handgun, then a citizen has the right to possess it in an operable condition within the home for self-defense.  To compel the citizen to keep it locked away, inoperable or otherwise unavailable or useless for the purpose of defending one’s home would render the extremely limited right worthless.  A gun you can’t use isn’t good for much.

While this decision leaves a few things to be desired in its analysis of Heller, and a few gaping holes that would have better been filled, at least it reflects recognition by a court that the right exists.  It’s a start.