Two posts from the practical blawgosphere over the weekend craft an important paradigm for understanding what criminal defendants (not to mention their lawyers) are up against.  From the Texas Tornado, Houston criminal defense lawyer Mark Bennett, at Defending People, comes the story of “RR” (name withheld so that an innocent man isn’t perpetually associated with this crime), cleared of a sexual assault on a child by a DNA kit that sat untouched since 2002.

On the left coast, philanthropist and Fresno criminal defense lawyer Rick Horowitz at Probable Cause posts about institutionalized group think, and its impact on the ability of any individual prosecutor to break away from mold when an individualized review of evidence in a particular case warrants.  As Rick says, a prosecutor’s duty is to do justice, but the institutionalized practice is to convict.

As much as these two posts address very different circumstances, they are both part of a whole that exists throughout the criminal justice system.  Some lawyers, like Bennett and Horowitz fight it.  Others just play along, as though opposition is futile.  The ones who have either failed to recognize the problem, or have simply given up, are as much a part of the problem as anyone.

Bennett’s post notes that the impact of confirmation bias, propounding Bennett’s Third Rule of Investigation:

Enough investigation will tend to support your theory.

Bennett credits Murphy for the rule.  I credit Bennett, because he is too self-effacing and needs to learn to take credit for the things he creates.  The police investigate to prove their perp guilty.  Once that’s done, they stop investigating.  Any more and they could spoil a good thing.  In the “RR” case, it strikes one as amazing that a DNA sample could sit untouched for 6 years while a man was convicted for such a heinous crime.  Somebody decided that DNA was one step too far.

But then, there was a defense lawyer involved on “RR”s behalf as well.  What happened there?  It appears that “RR” had a significant facial disfiguration that went unmentioned in the description of the perpetrator.  Perhaps this led the defense to believe that it had a way to beat the case, and prevented further digging that might have unearthed the untested DNA. 

From the Houston Chronicle, the question was posed how the DNA could go untested:

“That is a really good question,” Assistant District Attorney Roe Wilson said. “It should have been tested. The defense attorney also could have requested testing.”

Rachell’s trial attorney, Ron Hayes, and his current attorney, Deborah Summers, both have said they were unaware of physical evidence that could have been tested years ago.

It’s possible, if not likely, that no one disclosed the existence of this evidence prior to trial, begging the question of how the defense lawyer could request testing when he was unaware that there was anything to be tested.  The prosecution’s response, if that’s the case, is disingenuous.  But then, there remains the question of whether the defense passively accepted the absence of information or whether he tried to investigate. 

This is where Rick’s group-think, acceptance of the routine, lack of individualized consideration, comes into play.  The same group-think that impairs individualized review, investigation and consideration by prosecutors frequently does the same thing with defense lawyers.  Failure to recognize, or admit, that this happens is no less dangerous or wrong.  As the prosecutor in the “RR” case noted, the defense lawyer could have done something about it as well.

Bennett clearly recognized that the same problems that hamper the legitimacy of police investigations can similarly apply to the defense.

We all have preconceptions and prejudices formed by our life experiences. Any of us might unknowingly suffer from confirmation bias that helps us maintain these preconceptions, even if they’re wrong. A prosecutor might rightfully assume that a person accused of a crime committed that crime because — let’s face it — the cops usually get things right, and in the small percentage of cases in which the wrong guy is arrested there’s a defense lawyer who will fight zealously to prevent an injustice.

But, no matter how jaded, a defense lawyer can’t assume that the cops got it right because — let’s face it — the cops often don’t get things right, and in those cases the defense lawyer had better not be prevented, by confirmation bias or anything else, from seeking out the evidence that might save the accused from prison or death.

We are right to point out, as Rick does so well, the injustice that comes from prosecutorial group-think.  But we should never forget Bennett’s admonition that it is an affliction that both sides suffer.  The defense can be guilty as well.

When President George W. Bush made his surprise visit to Baghdad, every precaution was taken. Save one. As the President, Iraqi President Nouri al-Maliki prepared to take questions, an Iraqi reporter, Muntadar al-Zeidi leveled his weapons, both size 10.  That President Bush was unharmed was more a product of his ability to dodge than al-Zeidi’s aim. 

The moment will live on in comedy and politics for quite a while.  As Radley Balko, from whom the video loop was taken, says, it never gets old. My thought is that it should be repeated for each person who dies since America decided to free Iraq.

But shoes can’t kill.  At least not this way.  What they can do is provide the only means for an angry man to express the depth of his outrage at life in his country.  From the AP :

This is a farewell kiss, you dog,” he yelled in Arabic. “This is from the widows, the orphans and those who were killed in Iraq.”

The best explanation for this preposterous attack is that al-Zeidi had few other options to express his anger and outrage.  One of the mantras used to trick a frightened America is that we must bring the war to the terrorists.  That means that we keep the fighting, and hence the pain, away from us.  Certainly that’s better for us.  It’s not necessary better for the people to whom we brought the war.

For those whose memory might be faulty, we were told that we would be greeted as saviors by the people of Iraq, oppressed by Saddam Hussein, who had weapons of mass destruction and was ready to use them.  All old news for us, but still very real to Iraqis.  This was not a mere political debate to those whose died as collateral damage in our war over there.  We were prepared to suffer their deaths.  Nobody asked them what they thought about the subject.  Muntadar al-Zeidi wanted President Bush to know how he felt on the subject.

Many Americans feel the same way about this war, though we do so without having suffered nearly as much pain as the Iraqi people.  We have lost many of our own.  Some believe it was “worth it” while others disagree.  But there’s little denial, whether one is proud of America knowing that The Surge helped or saddened by the fact that we were compelled to surge to begin with.

“This great Arab shoe sums up the history of the criminal Bush, who is responsible for the loss of lives of hundreds of thousands of Islamic sons and who remained arrogant, spiteful and mean-spirited until the last moment of his term,” wrote Abdel-Sattar Qassem, a political science professor at An Najah University in the West Bank town of Nablus, on a Palestinian Web site.

One has to wonder whether this shoe attack, this basic expression of futile outrage, will be seen as a joke or the final commentary on a failure of American ideals and policy.  At Lowering the Bar, Kevin Underhill uses wit to make the point:

Rumors that a third shoe may have also been thrown from a nearby grassy knoll, which if true would implicate a second assailant and thus a possible conspiracy, were dismissed by White House officials.

Bush also played down the incident, saying, “All I can report is, it is a size ten.”  That’s a pretty good line, and I give the president credit for that, and for not automatically trying to link the shoe-thrower to al Qaeda. 

This ludicrous shoe attack may be the perfect closing strain of a presidency that might be viewed historically as ludicrous.  But it’s not just an attack on George W. Bush, but on a nation that elected and supported him in this endeavor. 

According to the New York Times report, “[h]itting someone with a shoe is considered the supreme insult in Iraq. It means that the target is even lower than the shoe.”

If we stop, for a moment, subscribing to the foundational belief that America can do no wrong, maybe we all deserve a shoe in the head.  If nothing else, maybe it will knock some sense into us.

Update:  I have just heard that Muntadar al-Zeidi is being held for questioning.  What exactly are they asking him? 

Where did you get the shoes?
Why a shoe and not a sneaker?
When did you first wear size 10?
Are there other shoes in your closet?
Were you acting alone when you threw the shoes?

Does the claim that he is being questioned strike anyone else as reaching yet a new level of absurdity, just when you thought it wasn’t possible?

The casual reader of blawgs is likely unaffected, but regular readers know that the blawgosphere has reached the point where certain individuals have developed what might be called “blawg cred,” a degree of internal recognition that imbues them with credibility.  For some, it’s attained through their writing, insight and humanity.  But for many, it’s self-ascribed. 

There is no test for membership in the blawgosphere.  Anyone can join the club.  All it takes is a dollar and a dream.  Literally.

Many of the most prominent blawgers have worked their way up the food chain, earning their bones through writing that is often good and occasionally brilliant.  Brilliance speaks for itself, and the blawgosphere is the perfect venue to have your thoughts vetted by your peers.  One can easily believe oneself brilliant (as most of us do), but if ideas can’t pass muster by fellow lawyers in the blawgosphere, then you’ve been tested and failed.

Then there is a swathe of the blawgoshere that offers little by way of ideas, but much about themselves.  These are the Blawgosphere Heroes.  They write about the wonderful things they have done, both in the law and in life.  They attribute greatness, humanity and success in the hope that others will believe.  They create the online persona that they wish they had in real life.  They post about their legal successes, their huge cases and great victories.  If they do so enough, they hope that people will believe them.

You see, it can be quite difficult to verify claims in the blawgosphere.  One can become the great humanitarian one always wished one was by creating a surreal digital world around themselves.  The blawgosphere tends to accept things at face value, particularly when no one’s ox is gored in the process, and it becomes part of the blawgospheric myth. 

The problem is that sometimes these are lies.  Sometimes, claimed victories never happened.  Sometimes, the blawger didn’t save a kitty from a burning building. 

Many blawgers write with a voice of great authority, absolute in their understanding of the law and world, claiming expertise unto themselves.  Some blawgers have never seen the inside of a courtroom, yet pontificate about where each of the chairs should be placed.  Other blawgers, in the zeal to make friends and increase their own prominence, embrace these Blawgosphere Heroes in the hope that they will bask in their reflected glory.  They spread the myth and believe it with all their heart and soul.  The myth becomes a reality, though only in the blawgosphere.

One blawger will write of another that he is the best lawyer in all of Podunk, and in the blawgosphere the latter will be the best in Podunk.  Of course, the former doesn’t actually know the latter, and can’t verify a single thing that the latter has ever claimed.  It’s all a matter of faith confused with reality.  It benefits both.  And if enough people swear to a purported blawgospheric reality, it becomes so.

Beware the Blawgosphere Hero.  You don’t know him.  You can’t possibly know if what he says is true or utter fabrication.  Those who claim to be important, successful, brilliant may be or may not be, but writing so does not make it so.  Of those whose blawging consists of ideas, the process of peer review will distinguish the real from the fiction.  But of those whose blawging serves only to support their claims of personal achievement, greatness, humanitarianism, blind acceptance of self-ascribed attributes is absurd and all claims should be viewed with the utmost suspicion.

This is the blawgosphere.  Anyone can claim to be a hero if they want to.  But they only become a Blawgosphere Hero is you let them.   Be very careful who becomes your hero.

Jim Chen at Moneylaw, ironically named given the nature of his post, has taken a step back and seen the forest through the tree, with his brilliant opening line:

Scandal scored a trifecta this week, as heavyweights from the worlds of politics, business, and law were accused of fraud. Illinois governor Rod Blagojevich has been arrested for offering to sell Barack Obama’s open Senate seat to the highest bidder. Bernard Madoff ran his investment firm as a giant Ponzi scheme; losses are thought to approximate $50 billion. And lawyer Marc Dreier bilked sophisticated investors of $380 million. Neither law nor higher education in general can escape responsibility for the behavior of these men. Blagojevich and Dreier held law degrees. Indeed, the New York Times took pains to describe Marc Dreier as “a Yale graduate and Harvard-educated lawyer.”

This doesn’t speak well of lawyers, and no amount of facile denial or rationalization will change that.  To add insult, Madoff went to law school, but didn’t finish. 

Lawyers are taught ethics.  Since 1982, lawyers have been tested on their knowledge of ethics by the MPRE.  What we have yet to figure out is how to instill the legal profession a desire to behave in an ethical and moral way.  Knowing ethics and being ethical are entirely different. 

Jim, being a law school dean, challenges law schools to do something about their role in this mess.  He recognizes that law schools cannot absolve themselves of all responsibility for this situation, being the breeding ground of whatever vision a lawyer has of his role in society.

The diagnosis is simple. Greed kills. One of MoneyLaw’s running themes is that American universities fare rather poorly in identifying, let alone living or inculcating, moral values. As a partial antidote to the poison represented by Blagojevich, Madoff, and Dreier, I thought I would mark the untimely passing of an academic hero : Jan Kemp.

Since Jim’s got the law school exception to the rule covered, and provides great insight as Dr. Kemp paid the price of integrity, I hope to give it a try on the side of the trench lawyer.  As an axiom, we do a miserable job of policing our own profession.  We, each lawyer, at minimum knows someone who fails to fulfill the ethical obligations and disciplinary rules that govern our profession.  We are obliged to act upon this information, but do not.  And we similarly know that if we did, the changes of our disciplinary bodies doing anything serious about it are slim to none. 

This is not an opportunity for non-lawyers to rail against theft by lawyers.  Stealing from escrow is the surest route to disbarment, which may not be a sufficient penalty when the theft exceeds $379 million.  But performing incompetently is rampant.  Sure, it’s a subjective assessment, and the level of technical competence necessary to escape discipline (which in these terms means a nasty private letter) can usually be accomplished by dried out slug.  We know it, but we keep it within the family to maintain the “dignity of the profession.”  Dignity?  This is what dignity means?

Some will remember that I’ve just been engaged in a disagreement with many about the role of using blogs as active marketing tools.  Put aside the marketers, whose job is it to market marketing and therefore have done no wrong by saying anything to persuade lawyers to buy their trinkets.  Think instead about the lawyers who argued vociferously that (1) they had to engage in overt marketing or they would sit home alone all day and starve, or (2) that it was their ethical duty to market themselves or the public would not be aware of their existence, and it was their ethical duty to make the public aware of the fact that they were available to deposit their retainer at a moments notice.

The one thing lawyers are well trained to do is argue.  We wield rhetoric like a sword, using it to cut through walls of ethical and moral that stand between us and money.  We confuse some words, however, like ambition and greed, allowing us to explain away our use of any weapon at our disposal to separate a client from his money, or if we are really good at what we do, someone else’s client from his money.

Maybe law school has done its job too well, giving us the ability to rationalize our way under, over and around the ethical and moral obligations that are supposed to keep us in check. 

But there is no argument that these three individuals, headliners this week for the sheer magnitude of the allege loss, reflect a gaping hole where a lawyers’ heart should be.  Are we this desperate a profession that we can do no better?  Are we this greedy?  Are we this dignified?

This is my 2000th post at Simple Justice.  It seems like only yesterday I quickly pecked out post 1999. 

When I realized I had hit a milepost, I thought it a good time to reflect on the experience.  It’s been a pleasure for me to write.  It’s been an honor for me to have people read what I write.  I never expected that so many people would do so. Up to this post, I have written 1,345,727 words.  That seems like an awful lot, and I feel badly for the ones I harmed and mangled, as I like words a lot.  My posts have been read a total of 1,490,481. 

The most popular post is The Lawyer Look, mostly because it’s searched relative to tattoos and piercings.  It’s also the post that gets the wildest comments, usually angry and frequently profane.  Just yesterday, someone informed me to return to the “Hitler Hole, moron.”  It would have been deleted had it not been so ludicrous that it was funny.  The second most popular post, An Early Morning Knock on the Door, is a more serious, and instructive, post.  It doesn’t get any crazy comments.  People who read it likely aren’t in the mood to assert themselves.

The only post I struggled with was Blawg Review #170.  Writing it was painful.  Others, like Turk and Colin Samuels, are unbelievably good at doing Blawg Review.  I was not.  I did it because I made a promise to Ed. that I would, but I was miserable the whole time.  it was the only time writing a post that I felt that way, and I didn’t care for it.  Still, I appreciate that others do it so I can enjoy their effort.

I’ve met some great people along the way.  Three of my favorite people on the internet, Mark Bennett, Gideon and Norm Pattis, have taught me more in the past year and a half than I had learned in the prior decade of practice.  If you haven’t kept up with Mark and Gid (Norm having taken a sabbatical), you’ve missed a lot.  A newer addition to the group, Joel Rosenberg (or J-dog for short) is not a lawyer, but a renaissance man with remarkable insight.  And David Giacalone is like my conscience, alway there to keep me honest. 

Joel was the one who coined the term, “he’s prickly,” referring to my limited tolerance for things that annoy me.  It was kind of Joel to add the “ly”.  As the number of readers who found their way to Simple Justice increased, the number who understood what this blawg was about, followed regularly and were aware of my views decreased.  A consequence was day-trippers, a name I’ve given people who read an individual post and feel compelled to comment.  I believe that readers of blawgs has increased significantly, primarily as a result of people searching topics and finding them in blawg posts.  I wish they wouldn’t comment.  They don’t add anything (because they don’t know anything) and I respond poorly.

A few fights have broken out on Simple Justice during the last 1999 posts.  The most recent one on marketing ended with one of the participants sending me a demand letter.  I wasn’t troubled by it, for obvious reasons, but I felt bad for the writer.  To the bitter end, he had no clue why it had happened.  In general, the fights have been healthy, airing disagreements and clarifying positions.  I’m rarely afraid to take a position on something.  Sometimes I feel strongly, and others I just do so to test my own thoughts.  Readers sometimes fail to realize that I may not be advocating a position, as much as testing it.  Some view every post as a life or death proposition. 

Many people who have come here over time have demonstrated a misunderstanding of what the blawgosphere is.  It is a place of words and ideas, but it falls far short of reality.  We’re people typing on keyboards, not deciding the fate of mankind.  If our ideas have merit, we may persuade people, perhaps even influence decision-making.  But some see a post as a threat to their way of life.  These people need to get a life.  There’s nothing to win and lose here, just words and ideas.  There’s no prize.

Blawgs posts are, generally, a way to quickly jot down thoughts on a particular subject, whether generic, humorous or topical.  They aren’t law review articles, or features in the New York Times.  I try to put in a good ten minutes on each post, whether I want to or not, but I won’t go back and edit.  When you find typos or dangling participles or mistaken tenses, give me a break.  Of course, the people who post the antagonistic comments neither understand what I’m doing here nor could be bothered to find out.  I’ve had a few inform me that it was my responsibility to enlighten them as to my ways, as they were entitled to do as they pleased.  I banned them.

I’ve banned about a dozen people over time.  Most for using profane language, but some for just being obnoxious or antagonistic.  I’m not the only one who has this problem with commenters, as Orin Kerr and Walter Olson have both recently taken strong positions about ridding themselves of the nuisance.  Walter said it best:

Let’s make it clear right now, though, that this is a moderated comments section. It may resemble a very broadminded letters-to-the-editor column; it is not going to resemble a public-access cable channel, graffiti wall, or Hyde Park Speakers’ Corner if I or DH can help it.

What’s more, it’s moderated for the benefit of this site’s intended audience, bearing in mind that some lines of discussion more quickly become tedious and irrelevant to that audience than others. Up to a point, I have no objection to efforts to save our immortal souls or turn us into leftier-than-thou Kossacks so long as they have decent entertainment value (short, witty, and nonrepetitive all help).

One group we’d be better off without are those who feel that commenting on this site is somehow a matter of right, no matter what the tedium factor, and radiate wounded entitlement when they learn that’s not how it’s going to work. They really would be happier elsewhere.

Many of us, myself included, have had some difficulty understanding why we don’t see the world the way someone like, oh, John Ashcroft does.  Why, I often wondered, did my government feel it appropriate to detain people taken off the street in other countries in a military base at Guantanamo, Cuba without charges, process or proof?  This struck me as a problem.

Former Attorney General John Ashcroft did not see this as a problem at all, and would see someone like me as clueless.  Until now, I didn’t understand why.  Now I do.  Via Turley, John Ashcroft explains:




Apparently, this is all a matter of how we define “war”, and who our enemies might be.  Sure, the phrase “war on terrorism” has become ubiquitous in public discourse, but it’s just a phrase designed to capture a sense of gravity.  It’s not literal.  At least I thought it wasn’t.  Ashcroft thinks otherwise.

His comparison of captives in Gitmo to captured German soldiers in World War II is less than persuasive.  The soldiers we captured worse uniforms of their country, in a declared war with discrete sides.  We didn’t impugn their integrity for fighting for their country.  They fought for theirs as our soldiers fought for ours.  That’s how real wars work.  Mind you, I’m talking about the foot soldiers, not the masterminds who fashioned The Final Solution, nor those foot soldiers who relished duty that involved inhumanity.  They have a special place in hell.  I’m talking about the regular German who was pressed into service and fought on the battlefield as he was told to do.

There is no comparison with the “war” Ashcroft speaks about.  Some will argue that the soldiers in a jihad don’t wear uniforms, so it’s foolish to argue that the lack of a uniform makes them immune from being prisoners of war.  But this returns us to the question of whether this is a war, or something else.  Terrorists don’t wear uniforms.  Terrorists don’t serve a country.  Terrorists don’t fit neatly within the confines of our historic understanding of war. 

Yet we ignore the Geneva Conventions under the notion that they really aren’t soldiers, entitled to be free from torture, because they are terrorists.  At the same time, we justify keeping them captive without due process because prisoners of war aren’t held because they’ve done any more than fight on the other side of a war. 

This rationale, that anything we chose to call a war thus becomes one, shows a fundamental rift in our American psyche.  We want to be protected from international terrorism, but can’t find a pigeonhole to fit it so that it neatly fits within any recognized paradigm that tells us how to address it.  Certainly, calling it a war doesn’t make it one, any more than announcing a “war on drugs” allows us to hold drug users captive as prisoners.  It’s just a phrase designed by political marketers to make our thinking fuzzy enough to allow the government to do as it pleases.

But John Ashcroft sees this as war, clearly and absolutely.  The people held at Gitmo did nothing wrong other than fight for the other side, and there is nothing to charge them with aside from being soldiers against us.  There is no issue of due process involved, not charges of wrong doing needed.  His conscience is clear. 

When Dallas criminal defense lawyer Robert Guest started blogging, he called his place I Was The State.  It was his way of letting us know that he was fresh out of the District Attorney’s office, and that his experience there was something worthy of recognition, a valuable asset in itself, now that he was on the side of truth and justice.

More than a year and a half have passed since then, and today, Robert has written his prosecutorial swan song.  Prompted by the efforts of the Texas Tornado, Houston criminal defense lawyer Mark Bennett, who is also the current President of the Harris County Criminal Bar Association, as well as the well-deserved front runner for best criminal blawg in the ABA Blawg 100 (have you voted yet?), Robert’s insight offers much to the many men and women whose careers in criminal law began in the prosecutor’s office and wound their way to the defense side.

The longer I defend cases the more I realize that the two skill sets (prosecuting and defending criminal cases) are mutually exclusive. Prosecution can make one a better criminal attorney in general. Creating a better defense lawyer requires defense experience, inter alia.

Does my prosecution experience help my current clients? Yes, but not as much as more defense work would have.

This is a revelation that many former prosecutors would prefer be deep-sixed.  Like a dirty little secret, they know that the public is of the belief that a former prosecutor offers them a benefit, an edge, that they wouldn’t obtain otherwise.  When former prosecutors go out on their own, they heavily promote this status to exploit this public belief.  The benefits are two-fold; it’s a belief that will convince potential clients that the newly-minted criminal defense lawyer has credibility, and it’s the only thing that have to promote.

I’ve posted in the past about the ethics of former prosecutors exploiting this status to get clients.  That being an ex-prosecutor is a fact, part of one’s professional background, is undeniable.  That this fact somehow provides clients with an edge is deceptive and misleading.  Still, it’s a pervasive marketing tool.

The problem is that it’s a lie.  With experience under his belt, Robert proves that he’s made the full transition from being a former prosecutor to being a criminal defense lawyer by his recognition of the significant distinction.  Robert goes through a fairly extensive list of these differences here, and they are definitely worth reading.  They may not be exactly the same as another ex-prosecutor’s experience, but some of the points are universal.

Just yesterday, I welcomed Murray Newman, about-to-be-former Harris County prosecutor, to the defense ranks.  For those of you who plan to switch sides, or have recently done so, give this a lot of thought.  Robert’s final thoughts, aside from the technical differences in the skillset involved, merits special attention:

I do not believe that someone who has been prosecuting serious felony cases for years can not defend a case. The possibility is there. A lifelong ADA would have a better chance than a PI/Bankruptcy lawyer. 

However, only years of zealous defense advocacy can make one a better defense attorney. It’s not just the procedure and penal code. It’s the fundamental belief system that defines each side

Until you realize this, you’re not really a criminal defense lawyer.  Robert Guest is a criminal defense lawyer.  Are you?

When I was interviewed for college, the interviewer noted that I had taught horseback riding over the summer.  She asked whether I would be interested in being on the school’s polo team.  I thought for a second, and responded that I didn’t think so.  She asked why, and I explained that I trusted horses, but I didn’t trust people wielding clubs.

The hub of the Volokh Conspiracy, Eugene, asks whether there is a justification for states banning citizens from carrying Tasers.

A bunch of jurisdictions — according to a student paper I read, Hawaii, Massachusetts, Michigan, New Jersey, New York, Rhode Island, Wisconsin, plus Philadelphia, Baltimore, Chicago, and Washington, D.C. — ban the possession of tasers. Are there any sensible justifications that I’m missing for such bans, and for bans on carrying tasers outside the home?

He lists a number of factors.  On the negative, the obvious reason that they could be used by criminals.  On the other hand, he notes that they can be quite useful for self-defense.

Acknowledging that Tasers aren’t perfect, in that they are a “one shot” weapon, meaning that you don’t get a second chance to make a first impression, that despite the non-lethal claim, deaths occur nonetheless (oops), Eugene concludes that their benefit for self-defense outweighs the detriment.

While the use of Tasers has been the subject of many posts here, not to mention plenty of great party videos, and I am certainly in favor of things that cause fewer rather than more deaths, I find myself unable to agree.

It’s people.  Without arms, they hurl nasty words and the occasional fist.  Feelings are bruised more often than body parts, but they’ll get over it.  No one ends up lying on the ground, incapacitated, possibly dead. 

People get angry.  When angry, they do foolish things that they later regret.  Give them the tools to do ever worse things when they’re angry, and I fear they will use them.  I don’t want to enable or facilitate people harming each other in the heat of the moment, creating problems afterward for themselves and others that ruin lives.  I don’t trust people.

On the other side of the equation, I don’t see that the need for self-defense is all that great.  I am unaware of an epidemic of minor league violent crime sweeping the nation, such that it’s unsafe for any honest citizen to walk the streets unarmed.  Mind you, Tasers aren’t a particularly good defensive weapon when confronted by a person with a gun, since their shot causes more damage than your shot.  It’s not a good trade-off. 

I’m sure that anyone willing to put in the effort can come up with one hundred instances in the past week where a Taser might have helped defend a person against an attack.  But in the scheme of a fairly large nation, this would be a miniscule number, and statistically insignificant as an example of need.  I just don’t see any real need.

New York City, which provides my view of the world, is filled with angry people.  I’ve met many of them during my 25 years of practice.  Many didn’t wake up in the morning with the intention of committing a crime, harming someone else or ending up arrested, but they did.  Many, many more got themselves into stupid scuffles with other angry people, but shook the dust off afterward and went home to nurse their bruises, whether real or mental.  I dread to think what might have happened if they possessed a Taser.  Angry people demonstrate poor discretion.

No, I think that we’re better off without people walking around with Tasers.  I still don’t trust people with clubs either.

Reposted from Mark Bennett’s Defending People, because no 10,000 words I could write could capture this image better.

The criminal bar of Harris County, Texas, was busy following Life at the Harris County Criminal Justice Center, a blog by an anonymous prosecutor chronicling the doings at the local courthouse.  The author, who called himself A Harris County Lawyer, provides a sort of counter-weight to the Texas Tornado, Mark Bennett, at Defending People.  While it was more local than most blawgs, there was plenty of substance to read from the prosecutor’s perspective.

An election changed all that.  When Pat Lykos was elected Harris County District Attorney, the campaign promise of no reprisals was immediately forgotten, and A Harris County Lawyer, who supported another for the job, quickly learned a lesson in integrity.  A Harris County Lawyer became Murray Newman, assistant district attorney until the end of the year, when he will turn over a new leaf and join the side of truth and justice.  Still, he had nothing but admiration and praise for his co-workers and they job they did on behalf of the public they serve.

But that wasn’t the last lesson he was to learn about being a prosecutor.

Hell, even today I learned that someone that I considered to be my friend was railing against my “toxic blog” in an e-mail to all the misdemeanor prosecutors. That kind of hurt, but I guess those types of things are going to be expected in the days to come under the Transparent Lykos Administration.

So much for the notion that integrity is a good thing in the DAs office.  Murray was a good prosecutor from everything I’ve heard, particularly from his adversaries (who are usually the best judges of this sort of thing).  It’s understandable that a person who has just survived a tough campaign for public office puts an undue premium on loyalty, confusing the job of prosecutor with that of Illinois governor.  Campaigns can easily skew one’s vision of right and wrong.

But the comment that Life at HCCCJC is toxic is pretty strong.  Toxic as in poisonous.  As it turns out, the new description came from someone with whom Murray was long associated, and who Murray had previously called friend.  This comment, also highlighted at Bennett’s place, explains what came down:

Murray, I am a misdemeanor prosecutor who received Donna Goode’s email calling your blog toxic. I was very disheartened with what she said.

For whatever reason, Donna has found herself in good standing with the new administration (she IS a hard working prosecutor from what I have heard). But, the fact that she sends us an email calling you toxic is disturbing. I guess that is sort of the shot across the bow. Does that mean we aren’t supposed to be seen with you.

It means that there is no greater purity in the prosecutor’s office then anywhere else in government,  When a good, maybe even great, prosecutor gets canned because he wasn’t out waving the flag on day 1 for the candidate who ultimately won (and who he supported in the general election, by the way), the message is clear.  Prosecutors are not immune from politics.  Those who say that are just haven’t learned the lesson yet.

Murray Newman learned the lesson, much to his personal pain as he felt that he contributed to the betterment of the people of Harris County through his work in the District Attorney’s office.  Now, he’ll have to contribute from the other side.  Welcome Murray.