While the vast majority of the work needed to effect the strategy of winning a criminal case falls on the criminal defense lawyer, there are certain things that a defendant or his family are required to do.  Gathering information, for example, or obtaining paperwork from past enterprises. 

The list changes with every case and every charge, but these are simply not things that the attorney can do for the client.  We need a little cooperation from our own guy, and it would hardly seem too much to ask, considering that it’s his life on the line.  Yet, this can prove to be the one of the most difficult aspect of a defense to perform, particularly when the case is complex and requires tactics that have multiple steps.  Indeed, a sophisticated defense can implode when it entails reliance on the client.

Why?  Because clients frequently find it impossible to follow simple instructions.  Tell them to take 5 steps forward, then turn to the right, and they end up 16 blocks away.  There’s some bone in people’s head that compels them to ignore the advice of the person to whom they have paid a substantial amount of money and in whose hands they have entrusted their life.  Strange.

While having a lawyer to represent you may be the first step toward achieving your desired goal of prevailing against criminal accusations, it’s not the last.  In difficult cases, and particularly in white collar cases, a fully-conceived defense requires that all the players on the defense side contribute to the goal.  This means that paying the fee isn’t enough, but making oneself available to do the handful of things asked of you, and then doing them properly, is part of the deal.

And this is where things go astray.  It’s my practice to provide explicit instructions on how something is to be done, based upon my experience of how best to accomplish a particular task, the potential pitfalls of performing the task in other ways and the risk of failure should the task not be adequately or properly performed.  Very detailed.  Very explicit. Very precise.

Yet clients take my instructions and decide that they have a better idea, usually an easier, less burdensome way (for them) to perform the task.  Without further discussion, they go full throttle into performing the task and wreak havoc. 

Afterward, when the damage is done, the task having failed and the sheepish client staring blankly at me, muttering, “but you’re the lawyer…can’t you fix it?” I’m left to bang my head against the conference table.  Of course I’m the lawyer.  I was also the lawyer last week, when we discussed how to perform this small but critical task, and I explained in painful detail why it had to be done a particular way. 

Whether it’s preservation of evidence, or preservation of privilege, or completeness (a perpetual problem, where clients want you to see all the stuff that’s great for him but none of the stuff that’s going to blow the defense out of the water), there are sound reasons why specific instructions are given.  There really are, I swear. 

White collar defendants, in particular, are notoriously bad about following instructions.  The problem, I’ve found, is that they are smart and worldy.  They functioned for much of their life autonomously as best, and in a supervisory position at worst, where they gave directions.  They didn’t take them.  Their personal accomplishment derived from their coming up with a “better way,” and they’ve come to believe that whatever notion pops into their heads is, by definition, a good one.  It’s a perfectly understandable affectation.  It’s also quite a problem. 

Sometimes, problems can be fixed, at least adequately to continue to pursue the desired strategy.  Other times, it’s back the drawing board.  When the failure to follow instructions results in the unfixable problem, a defendant may blow the only viable avenue of defense available.  The consequences are crushing, potentially meaning that a defendant who started with at least a theoretically successful strategy is left without recourse.  This is not a good reason to lose a case.

Understand that at the end of the case, the lawyer goes home either way.  It’s the defendant and his family that pays the price.  But any good criminal defense lawyer wants to win the case, both for himself and for his client.  It matters that we’ve done everything possible to help, explored every possible opportunity and performed every task successfully.  We take no comfort in the fact that it’s the client who screwed it up; it isn’t about blame, but about success.  We want to provide clients with the best possible success.  It’s what makes us get out of bed in the morning.

Help us to do this.  If we give you instructions, follow them.  Even if you think you know better, have a better idea or there’s a hole in your racket, have enough trust in our competence and experience to perform the task the way we tell you.  Let there be no doubt that it’s in your best interest, and that your best interest is paramount.  Please?

When confronted with the problem, the reaction is usually that they meant well.  Ah, “the road to hell” axiom rears its ugly head.  What is misunderstood is that your lawyer isn’t flexing his muscles for fun, or to elevate himself over you.  This isn’t a competition.  This is a duty to defend you as successfully as the law allows, whether you get it or not. 

From Turley comes an idea that will put a serious dent in overwhelming taxes.  You know how they have all that great equipment on the shiny red firetrucks?  Well, they just got a new toy to add to the mix, a credit card machine. 

The tough economic times are producing some highly questionable revenue measures by cities and states. One of the most problematic is the growing trend for towns, cities, and counties to charge citizens to use of police or fire services in emergencies. At least 24 states have such laws on the books and private contractors are pushing for every state to allow them to collect from crime and fire victims.

“Yes, Ma’am.  We see that you’re pinned under your car.  Will that be Visa or Mastercard?”

Part of this movement is being pushed by private contractors who want a percentage of the take from collecting reimbursement from victims. They generally demand 10% of the cut. While Georgia, Indiana, Missouri, Pennsylvania and Tennessee have banned “crash taxes,” other states have proven ripe for this sale’s pitch and citizens are being hit with demands for payment for assistance that was historically viewed as an essential government service. Indeed, the whole principle of taxes was to fund common necessities like schools, police, fire, and other basic services.

Now I realize that many will find this concept horrible, a disgrace.  If we can’t expect government services to be there for us in times of need, then why would we want government at all?  But that’s such a short-sighted view.  Think customer service.

“Up against the wall…”

“I’m sorry, Officer, but I don’t care for the way you’ve addressed me and have no intention of paying for this arrest.  From now on, I’m afraid that I will have to insist that another officer handle all my arrests.”

“Uh, I apologize.  Is there anything else I can do for you today?  Thank you for using the Metropolitan Police Department. Have a nice day.  Would you mind filling out this survey…”

The possibilities are endless.  Just consider the fun you’ll have contesting your credit card bill at the end of the month.  They charge you and you charge them right back.  How cool would that be?

Seriously, this is what comes of capitalism run amok.  From certain perspectives, the idea that spreading the cost of common necessities, whether police, fire or education, presents fairness issues.  People without children still pay school taxes.  People in quiet peaceful suburbs pay for the police who patrol inner cities.  People in ranch houses pay for ladder trucks.  Why should I pay, some ask, when it doesn’t help ME?

The answer is too obvious for lengthy discussion.  The fundamental concept of the common good means that we, as a society, sacrifice a little for the benefit of the whole.  An educated society helps everyone, so we all pay for it.  There just isn’t need to explain this much further.  But then, how do we explain those states that enable private contractors to perform public functions at a direct charge to the users?

It would appear that our elected officials, with their vast knowledge of civic responsibility, have latched on to an idea that panders to those who put dollars ahead of people.  When one’s focus is limited to the electoral process, and one’s constituents have no greater understanding of government than does their favorite candidate, laws like these with superficial appeal tend to make candidates very popular.

Until your house catches on fire.  Sorry, sir, but we don’t take American Express.

There used to be an appropriate interval after the death of a spouse before one started dating again.  The same was true for the death of dignity, but Eliot Spitzer, after leaving his office in disgrace, is coming back on the market, courtesy of Slate. From Professor Bainbridge, courtesy of Overlawyered, the word is out that Spitzer’s first column appears today!

With a post entitled Too Big Not to Fail, Spitzer has jumped back into the public light with both feet.  Sure, I could make cheap jokes about the title of his post, relating to his personal hubris to believe that he, Avenging Angel of Government and Client 9, thought himself too big not to fail, but that would be beneath me.  And too easy.  So I won’t.

Bainbridge is incensed by Spitzer’s failure to make even a half-hearted effort at letting the water flow under the bridge before trying to get back in the game.

How far we have come in dumbing down our response to public figures behaving badly. Now we don’t even require them to wait a decent interval before rejoining society.

He posts a bunch of Leno and Letterman jokes, which remain funny today, an wonders how long it will be before Michael Vick will be writing a column on dog training.  This was a good one:

“Do you ever notice politics is the only profession when a guy gets caught with a hooker, the wife has to stand by his side. You know, if this guy was a plumber and he got caught with a prostitute, he’d have his wife’s SUV tire tracks over his head.” –Jay Leno

But, indecent interval aside, there’s one thing that Spitzer brings to his column that few others can.  Having been at the center of the onion, and being now in a position where he has absolutely no future political potential for himself, and owes no fealty to any other player since he’s a pariah, Spitzer is absolutely free to write honestly.  As Kris Kristofferson wrote, “freedom is just another word for nothing left to lose.”  Spitzer is very, very free.

Whether Eliot will use his power well (or write in a more interesting way than he spoke) has yet to be seen.  For now, he’s offering gems like:

This long-term change frames the question we should be asking ourselves: What are we getting for the trillions of dollars in rescue funds? If we are merely extending a fatally flawed status quo, we should invest those dollars elsewhere. Nobody disputes that radical action was needed to forestall total collapse. But we are creating the significant systemic risk not just of rewarding imprudent behavior by private actors but of preventing, through bailouts and subsidies, the process of creative destruction that capitalism depends on.

Yeah, he sounds like a 5th year associate writing a legal brief, without a working knowledge of dangling participles (not that there’s anything wrong with that). 

Indecent interval aside, there is one notable risk for a fellow like Eliot Spitzer to jump atop the bully pulpit, pull up his fly and speak his mind.  It’s quite apparent in his conclusion:

It is time we permitted the market to work: This means true competition with winners and losers; companies that disappear; shareholders and CEOs who can lose as well as win; and government investment in the long-range competitiveness of our nation, not in a failed business model of financial concentration and failed risk management that holds nobody accountable.

Let’s think, holding nobody accountable…why does that phrase strike one as disingenuous?  Hey, did you expect Spitzer to suddenly have a decency epiphany?  Get real.

While it would have certainly been nicer if Eliot’s public return followed an act of redemption, particularly given how many lives were unnecessarily destroyed by this single individual in his zeal to elevate his image to the most vengeful prosecutor in the world (after Giuliani gave up the title), and his efforts at contrition were sorely disappointing.  But he still has thoughts to offer that may prove worthwhile, if he uses his newfound freedom wisely.

And if he stops writing like a lawyer.

Mark Bennett’s blog, Defending People, has collapsed under the weight of interested readers, leaving him dangling in the wind for most of the day.  In the meantime, the voting for Defending People in the ABA Blawg 100 has been pathetic.  Anemic.  Slow. Totally unacceptable.  I realize all this voting may seem silling, but it will take only a few second of your time and will make me, and maybe even Bennett, the Texas Tornado, happy.  Is that too much to ask?

Here’s the link . 

Take a second and go vote for Defending People.  Do it now.  All the other posts will still be here when you get back.  GO!

Here’s the moral right up front:  Don’t let incompetency or ethical challenges impair the desire for personal gain when it comes to a business model. 

Too strong?  Perhaps, but I’ll let you judge.

I’ve been critical of Avvo, my personal favorite lawyer website for providing the public with information about lawyers so that they can make a more intelligent decision about whom to retain (he writes with a sly smile on his face) from time to time, as well as complementary at others.  It’s got some legitimate benefits.  It’s also got some issues.  As much as I like the founders, Paul and Mark (though Mark rarely stops by here unless I post something really nice about Avvo, preferring to send Sam “the Hammer” instead), I try to keep my critique fair and balanced.  They probably aren’t going to like this post at all.

I never liked the concept of Avvo Answers, another ill-conceived effort to provide free legal advice online to consumers who want professional answers to their very serious questions without having to spend a dime.  But not until a skimmed through it the other day did I realize just how bad, how dangerous, Avvo Answers could be.

I happened onto a criminal law question posed by a Dallas mother concerned for her son.  Mothers tend to be that way.  She had a lawyer, but had doubts about his advice, and sought a second opinion.  Her post is long, so I’ll only excerpt the salient part:

My biggest question is, should I bond him out so he can get a job and do good while he is waiting on his trial? They say it could take 18-24 months. Or should he just sit in jail? He has a Court Appointed Lawyer, but I just don’t know, Why hasn’t he got the charges changed to not show BY FELON? The lawyer told my husband to leave him in there it looks better. I just don’t believe that. If he gets a job, does good, stays out of trouble, won’t that look better to a judge then sitting in jail? I feel like I should hire a lawyer, not just get a bail bondsman. I know I could just be throwing a lot of money away, but he told his wife this scared him so bad. He doesn’t want this life anymore.

If ever there was an appropriate question to ask on a freebie answer site, this is it.   She has a lawyer, but has doubts, and is looking for direction.  I don’t endorse the notion of asking questions in this fashion at all, but I understand completely why Dallas mom did so.

Then the ugliness of the concept rears its head.  The first lawyer to respond posts:

You need to get a new criminal attorney to replace the court-appointed attorney immediately.

Now this lawyer doesn’t practice criminal law.  But that didn’t stop her for an instant. And shockingly, she tells the poster to shed herself of this free lawyer and hire a new one immediately.  What could have influenced this advice.  Hmm.  Fortunately, there are paid advertisements for Texas criminal defense lawyers in a little box on the very same page!  How convenient!

Now, by way of explanation, by responding to questions, lawyers gain the benefit of increasing their “level” of contribution, which elevates their profile on Avvo and makes them appear to be more consumer friendly and helpful.  This is why a lawyer who practices “debt/’lending agreements” (whatever that means) with a rating of 6.3 would respond to a criminal law question.  But she’s a “level 7 contributor.”  Wow.

Then a second lawyer responds.  This lawyer, from Washington State practicing “family law” and “business law,” has this to add:

What is the likelihood that your son will get killed if he is out of jail? Seriously, are the people whom your son shot vengeful people who will harm your son if he is out of jail?

He’s a “level 8 contributor.”  That means he’s very, very lovable.

Finally, as it happens, the Texas Tornado, Mark Bennett, steps in to smack these absurd responses and provide some straight sound advice.

Here’s a suggestion: Non-criminal defense lawyers and non-Texas lawyers should not attempt to answer Texas criminal defense questions.

I generally believe that it’s better for an accused to be out pending trial. It makes the defense much easier for me, and allows him to show how well he can do.

But Ms. Treviño’s advice is terrible; possibly the worst advice I’ve ever seen in response to an Avvo question. You haven’t given nearly enough information for someone to advise you on changing lawyers.

If your son trusts his court-appointed lawyer, he should stick with him and follow his advice no matter how much it hurts. If your son does not trust his court-appointed lawyer, he needs to either find trust for him or change lawyers.

But what happens to these consumers who mistakenly believe that an answer from an attorney, lacking any qualifications, is reliable?  Avvo might respond that they have a disclaimer (though I didn’t see it on the page, but I bet it’s there somewhere) that no one should ever listen to anything any lawyer writes in response to their question. 

I wonder if Dallas mom read that disclaimer, or thought that an answer from a lawyer meant that it was an answer from a lawyer, the sort of thing from a professional that a person could rely upon?  I wonder if, upon reading the first response, she immediately fired her lawyer and found a new lawyer to retain?  I wonder what would have happened had Bennett not come across this question and straightened it out?

But hey, this isn’t about providing accurate response to people who need legal advice.  This is about business, about marketing, both for Avvo and for the “contributors” who are complicit in this travesty, ruining lives one by one.  At least Avvo makes no bones about being a business, and the business of business is business.  As for the lawyers, there’s no excuse.

And as for the consumers who believe that they can get a worthy, reliable and meaningful answer for free from Avvo lawyer contributors, you can’t rely on Bennett coming around to save you from every bad response. 

A press release went out yesterday from a group called LEAP, using the 75th Anniversary of the repeal of prohibition as a platform to promote their position that the War Against Drugs has failed, and it is time to put an end to it.  LEAP stands for Law Enforcement Against Prohibition.

The mission of LEAP is to reduce the multitude of unintended harmful consequences resulting from fighting the war on drugs and to lessen the incidence of death, disease, crime, and addiction by ultimately ending drug prohibition.

“If they caught the owner of the Empire State Building smoking a joint in the lobby, they could take the whole building.”

Jeff Kaufman began his criminal-justice career in 1980 as a beat cop for the NYPD just as the department was emerging from the budgetary crisis caused by the city’s near-bankruptcy in the mid ’70s. Says Jeff, “At the time, the force consisted of officers who were getting ready to retire and officers like me, young and motivated to ‘take back the streets’ from the ‘bad guys.'” He was assigned to the 75th Precinct in Brooklyn – one of the busiest in New York City. Within a year, he would be one of the responding officers to the “Palm Sunday Massacre” of 11 people, thus introducing him to the effect of drugs and the ‘War on Drugs’ on his community.

In his free time, Jeff attended law school. When he passed the bar, he was transferred to the NYPD’s Legal Bureau, where, among other duties, he brought cases against individuals for forfeiture of their property. Targets included both drug dealers and recreational users. But after Jeff attended the first National Conference on Asset Forfeiture in Washington, DC, he began to see just how wrong these policies were. “The conference organizers boasted that federal asset forfeiture was the only effective way to stop drugs. They claimed that if they caught the owner of the Empire State Building smoking a joint in the lobby, they could take the whole building! The [police] chiefs that accompanied me to the conference drooled with anticipation. Finally, an answer to their budget problems.” Shortly thereafter, Jeff left the police department and became a defense attorney for the indigent. “My caseload rapidly swelled with drug cases, and I saw from another vantage point how the ‘drug war’ was destroying us. More police were hired. New tactics were utilized, where large numbers of people were caught in police sweeps and arrested without regard to our basic constitutional principles. What affected me most were the number of young people who faced draconian sentencing guidelines. Lives snuffed out by our ‘drug war.'”

In the mid ’90s Jeff learned about the need for teachers at a high school in the precinct in which he’d once patrolled. Originally intending to return to criminal law, he was offered a teaching position on Rikers Island, where he developed relationships the nature of which he had been unable to do as either police officer or attorney. “I taught criminal law to adolescents facing life sentences for violent crimes and drug felonies. In class, we had the opportunity to fully explore the ramifications of the ‘drug war.'”

No, this isn’t about the locker room brawl potential with Terrell Owens, but how Burress, wide receiver for the world champion New York Giants (currently 11-1 and first in the NFC East) has been universally vilified for carrying an unregistered handgun (Glock, I believe?) into the Latin Quarter nightclub in Manhattan, and put a neat hole in his thigh when he mistakenly pulled the trigger.

He was stupid.  He was wrong.  But folks, this doesn’t make him evil.

The inflammatory rhetoric about Plaxico’s conduct is out of control, with editorials, commentaries and even political cartoons vilifying Plax, as if he had pistol-whipped an 8 year old to steal their lollipop.  Time for a reality check about crime.

Possession of a weapon in New York is a crime.  New York has very restrictive laws regarding handguns, and it’s nearly impossible to obtain a permit to carry a weapon.  Short of being an ex-cop, the New York City Police Department approves carry permits to only a select few who have an absolutely clear and definitive need for a gun, and then only when the Pope writes a letter of recommendation.

Let’s put this in context.  What if Plaxico played for Dallas?  I’m going to fudge some details here, not only because of my lack of familiarity with Texas law but because I’m using Dallas mostly because they are also in the NFC East and all true New York Giants fans hate the Cowboys.

Had Plax played for Dallas, he would have lived in Texas instead of New Jersey, within a few miles of the center of Manhattan, and wouldn’t have been compelled to travel interstate to find cultural satisfaction.  Had Plax played for Dallas, he would have had a carry permit for the asking,  Had Plax played for Dallas, no one in Texas would have thought twice about the fact that he had a weapon on him, since guns are ubiquitous.  This is even more true in light of the murder of Sean Taylor, the gunpoint robbery of Steve Smith and the many other attacks on NFL football players.

Had Plax played for Dallas, the worst that would have been said of him is that he’s a lousy shot.  No one would have suggested that by mere possession of a gun, a malum prohibitum offense (meaning that it’s criminal only because a law says so, not because it reflects an inherent evil), he went from being a very tall receiver with great hands and a bad attitude to the personification of athletic malevolence.

The “fallen hero” political cartoons, repeated in commentaries by those who believe that the quirk of nature that gives one man the ability to catch an odd shaped ball requires him to similarly possess a degree of moral perfection somewhat inconsistent with the difficult upbringing of many professional athletes, is a sham.  Athletes compete based upon their skill in playing a game.  They are rewarded for their physical skills with a ton of money.  The teams know they aren’t necessarily fine human beings, and some aren’t the smartest fellows around (though others are).  But they aren’t one dimensional.  They are people, and they make mistakes.

In this case, Plaxico Burress made a particularly stupid mistake.  But his motives weren’t evil.  Is it evil to want to be protected from harm by some psycho who might be inclined to murder a football player for his diamond earing?  Would it be better if Plaxico Burress appeared in the headlines as a murder victim that Saturday morning, rather than a evil criminal gun possessor and bad shot?  The fans and team might think so, and the sports writers and cartoonists would have been singing his praises as his number was retired and he was hailed as a great humanitarian.  But for Plaxico, he would have been dead.  Not as good for him as for us.

So let’s cut through the nonsense that’s permeated the sports world, at least in New York, and painted Burress as one step below Jack the Ripper.  He’s a dope, but he’s not evil.  There is absolutely nothing about what he’s done to suggest any malevolent intent whatsoever.  If ever there has been a person possessing a hand gun in New York City for a defensive purpose, Plaxico is the one.  It’s time that the mouths shut their yapping about what a bad man he is, and recognize the wrong committed within a rational and reasonable context.  He broke the law,  He is being prosecuted for it.  That’s how it works.  But he is not evil.

And if he played for Dallas, my bet is that he’d be suited up in Pittsburgh this weekend and catching footballs, Achilles tendon permitting.

Update:  Via Doug Berman, Dave Kopel has an op-ed in the Wall Street Journal addressing the Heller angle on the Burress case.  What’s curious about his analysis, though not at all surprising, is that Dave doesn’t take Scalia to task for the fact that even under the full interpretation of 2d Amendment RKBA under  Heller, Burress would still not be permitted to carry a gun, since it’s limited to self-protection in the home.  When Dave contends that the law prohibiting possession of a weapon “is unjust and perhaps unconstitutional,” he’s jumping the gun (get it?).

And before some wag posts a comment about “it’s a start,” and compares it to Brown v. Board of Education, the Heller spin-off is getting old.  Scalia included the infamous exclusions paragraph, and until that changes, take it up with Nino.

So November sales are down 41%, and the cash burn proceeds unabated, only waiting for the other shoe to fall when suppliers stop fronting product in the hope of payment.  So what does Detroit do?  It goes to Washington to play the “too big to fail” card.

What’s another $34 billion?  There are hundreds of thousand of lives on the line, from workers to suppliers to salespeople to mechanics, all of whom have suddenly discovered that the gravy train could stop abruptly.  And they’re scared, as well they should be.

Congress, on the other hand, thinks that it can play the car game better than Detroit.  After all, don’t we elect representatives based upon their combined knowledge of sound business practices and good taste in vehicles?  If the survival plan appeals to lawmakers, then the Big 3 will get their bailout.  Where’s Lee Iacocca when you need him?

The relative merit of saving the pain that will be felt throughout our economy, not to mention the one remaining holdout of the American industrial base, versus letting the tired, old, arrogant giants fall, has valid arguments on both sides, even if we ignore the United Auto Workers view that the $25 an hour its members get over non-union shops has nothing to do with the problem.

Few doubt that Congress will hand over the cash.  After all, it’s not like it’s their money, and it’s only $34 billion, after all.  In weighing the relative pain, the particularly hard feelings of those affected will far exceed the generic anger at yet another bailout of corporate America for what has been clear to most American’s for the past quarter century, that we don’t make cars that people want to buy.

It calls to mind the Chinese proverb, “Give a man a fish and you feed him for a day. Teach a man to fish and you feed him for a lifetime.” 

The problem here is that neither option seems to have much of chance of succeeding.  Certainly throwing money at carmakers whose cash burn rate, combined with its turnaround time for new products, suggests that it’s a singularly foolish idea.  On the other hand, the top management of Toyota and Nissan is unlikely to offer Detroit much instruction in how to manufacture cars that meet the needs and desires of Americans.  Does anybody really believe that Congress is up to the job?  Really?

That this comes from the Lori Drew case is tangential, as it really aligns more closely with the interests of Anne Reed (ABA Blawg 100 star) at Deliberations in her never-ending battle to convince Philistines like me that there is some rational basis to approach the selection of jurors.  Or, in contrast with my views, it ain’t just voodoo.

From Orin Kerr at Volokh, who follows this trial with far greater attention then the WSJ Law Blog (which has just figured out that this case might involve some controversy), an interview from the  St. Louis Post Dispatch of jury foreperson, Valentina Kunasz.

Most jurors believed a felony conviction would send a message that Internet sites should be better regulated for fraud, the forewoman, Valentina Kunasz, said in a telephone interview.

“I would have liked to see this lady go to jail to change the way Internet sites are run,” said Kunasz, 25, a former hairdresser who lives in Los Angeles County.

Most messages from 25 year old former hairdressers involve changing appointments for a dye job, but Kunasz seems to have different agenda.  According to another interview by Kim Zetter of Wired (also via Orin):

Kunasz said despite all the debate outside the courtroom about the prosecution’s use of an anti-hacking statute to charge Drew for violating a website’s terms of service, jurors never considered whether the statute was appropriate. However, she said she agrees with the idea that users who violate a website’s terms of service should be prosecuted.

“The thing that really bothered me was that [Drew’s] attorney kept claiming that nobody reads the terms of service,” she said. “I always read the terms of service…. If you choose to be lazy and not go though that entire agreement or contract of agreement, then absolutely you should be held liable.”

And there’s the rub.  In this case, given its notoriety and attention, the effort to find fair-minded jurors, how did H. Dean Steward end up with the only person in the world who actually reads the terms of service?  Worse still, one who has such a chip on their shoulder that they believe anyone who does not read the TOS is lazy and should go to prison for it?

And note that Kunasz thought that “users who violate a website’s terms of service should be prosecuted,” so anyone I find to violate my one rule better hope that she’s not on your jury, because you don’t have a chance with her.

One of the great joys of an investigative press is that we get to hear from jurors who enjoy their 15 minutes post-trial explaining their views on life, hairdressing and the internet.  We are left to wonder, however, how these nice folks, performing their civic duty by sitting on a jury, harbor the secret thoughts in their heads that lead them to say things like this. 

One would expect, at minimum, that the foreperson of the Lori Drew jury would not be the only living person who never neglects to read a websites TOS, and who is of the view that anyone less diligent than she deserves to be locked away.  Wouldn’t something like this be, oh, of interest on voir dire? It certainly strikes me as the sort of thing that everybody would want to know.

So if jury selection, the process in all its art and science, fulfills its purported purpose, how could this have happened?  Or is it all just voodoo?

One of the conversations that criminal defense lawyers have with some regularity, falling far behind the “how can you represent those people” one and the “do you represent anyone famous” one, is the one where a thoughtful person with a single malt Scotch in hand inquires, “but if it’s not constitutional, how can they do it?”

Georgia Con Law Professor Sonja West posts at PrawfsBlawg about how she deals with this issue with her students.

Student after student tells me that they went to a public high school (usually in the South) and they had a minister lead a prayer at their graduation or they had a school-sponsored baccalaureate with sermons and prayers. Just as many of them had prayers before school football games. The students are confused. They want to know how their school could do this after the Supreme Court found such actions to be unconstitutional.

I can think of no other topic where my answers are so direct and unqualified. “That was very likely unconstitutional,” I tell them, and your school officials are simply waiting for someone to formally complain or even to sue before changing their ways.

The story of the power struggle between the states and the federal government during desegregation is riveting, and we’re all familiar with the incredible show of force that was ultimately necessary to maintain the integrity of the Court’s role as final interpreter of the Constitution. Today, however, there are repeated acts of defiance quietly going on in public schools all across the country when it comes to these school prayer cases.

Much of the conflict between those who believe that “democracy”, in the form of a legislative enactment or executive fiat, trumps the Constitution, stems from the reality that governments large and small make the active choice of ignoring the laws, courts and Constitution.  Don’t try this at home, as the government isn’t nearly as tolerant of you doing it as it is of itself.

This problem arose twice over the last month in the Simple Justice household, where my daughter got all twisted over California’s Prop 8, a referendum by the People (with a little help from the Mormon Church) to alter the Constitution to permit discrimination against gays and lesbians, while my son learned about Kentucky’s latest stroke of genius, a law requiring the state Homeland Security office to credit God with their safety.

The law that organized the Homeland Security office first lists Homeland Security’s duty to recognize that government itself can’t secure the state without God. 

It lists the office’s initial duty as “stressing the dependence on Almighty God as being vital to the security of the Commonwealth.”

I sometimes marvel at the ability of Kentucky legislators to provide teaching moments. 

So the refrain, how could this be, was echoed throughout the house.  Of course, schools around here continue to offer a prayer before official events, just as they do in deepest, darkest Kentucky, so who am I to point fingers? 

While Sonja’s explanation is both clear and accurate, it raises some troubling questions.  For all the lip service we pay to the Constitution, why does government get to simply ignore it at will until somebody, some regular person who put his pants on one leg at a time, forces change?  Isn’t there some entity out there in the mist that goes around from town to village making sure that they behave themselves in accordance with the Constitution?  And if the government gets to ignore the law at will, how can it put regular people into prison for doing the same?

Ah, kids and Scotch drinkers.  They are so naive, so beautifully unaffected by cognitive dissonance.  The problem of course is that the questions are awfully darned good, and the answers are generally cynical.  While some in the law prefer to hide their heads in platitudes designed to pacify the weak-minded, pretending that none of this really happens, or covering it up in a cloud of dignified denial, neither children, Scotch drinkers nor criminal defense lawyers have that pleasure. 

The plain fact is that the inconvenient aspects of  the Constitution are routinely ignored, and it’s so common and pervasive that most of us take it for granted.  Sure, we lawyers know the caselaw, and know that our schools shouldn’t be offering a prayer to their inchoate graduates, but who wants to throw a skunk onstage right before their kid gets the sheepskin?  It’s unbecoming. 

So the second part of Sonja’s explanation is that there is a perpetual tension between the forces that favor the Constitution and the forces that believe that this old piece of paper protects their right to enforce the will of the people, no matter how contrary the two might be.  

As Edmund Burke said,  “All that is required for evil to prevail is for good men to do nothing.”   Bravo to Sonja for breaking the silence, and to my two kids for caring.