Monthly Archives: May 2009

Smile When You Perp Walk

It’s a time honored tradition.  When someone of note gets arrested, the cops cuff him and take him for a stroll in front of the cameras.  They don’t have to; he could be moved privately.  There’s no reason why the police must alert the media to the arrest.  And then there’s no particular reason why the media has to use these photos.  For most people of note, there are plenty of good photos around when the time comes to put a visual on air or in the papers.  But it’s the perp walk.  What would a story of an arrest be without the perp walk?

When Nassau County Legislator Roger Corbin was busted for evading taxes on $226,000 and lying to federal agents, it was quite a shock.  Corbin, the only black legislator in the county and former deputy presiding officer, was well regarded.  There were a ton of photos of him, as he was not a camera shy individual, and they showed a happy, confident man with an infectious smile.  It wasn’t for lack of an image.
Nassau County legislator Roger Corbin is arrested on tax evasion charges. 
But Corbin, like any other newsworthy perp, was forced to take the walk.  And the cameras were out in force.  As this Newsday photo shows, they got some good pics of Roger Corbin being trotted out for the show.  These are the images that people will remember when they think of Roger Corbin. 

Corbin’s lawyer, Tom Liotti, is a bit of a character as well.  Tommy usually has a press conference lined up announcing his defense before he’s off the phone with the defendant’s first inquiry.  Tommy likes the media, and has never been shy about using it, whether to his advantage or detriment.  Some guys like to see their name in the paper, no matter what story it’s attached to.  Tommy just wants his name spelled right.

But Liotti’s decided to take an unusual position this time, which (surprise) has managed to get his name in the paper yet again.  From Newsday, Tommy has asked United States District Judge Arthur Spatt to bar local news, from television to newspaper, from showing photographs of Corbin doing the perp walk.

As offensive as using the perp walk to characterize a person of some note for whom a wealth of other images exist may be, the fact remains that a prior restraint on the media’s First Amendment rights to publish whatever images they chose, even though they may tend to prejudice people’s views, has no legal support.  Nonetheless, Spatt has ordered a hearing today on whether to grant Liotti’s motion.


Spatt called it “especially troubling to me” that the pictures of Corbin handcuffed were used in the days following his arrest when Newsday and News12 could have used other pictures taken during Corbin’s long legislative career. Newsday’s coverage included both the handcuff photos and pictures from throughout his life.

Not surprisingly, this is the government’s position.


In arguing that Spatt should throw out Liotti’s request for a hearing, David Schulz, attorney for Newsday and News12, said that never in U.S. history has the U.S. Supreme Court or the 2nd U.S. Circuit Court of Appeals allowed a judge to restrain news organizations before publication.

“Courts do not get [into] telling the media what to publish,” Schulz said.

Spatt was not convinced that the media’s right to publish was so clear:


Spatt replied that as strong as the First Amendment protections are, they are not absolute. For instance, the government could restrain the publication of child pornography, Spatt said.

What connection these photos have with kiddie porn remains unclear, there being little similarity of a newsworthy event involving a public figure and images having no legitimate basis to claim constitutional protection.  But then, should the media be allowed to chose the path that causes the greatest prejudice to a defendant when there are many alternatives that would serve the purpose of broadcasting the news without needless prejudice?

The issue is framed as the defendant’s right to be free from prejudice versus the medias right to be free to publish.  In his motion, Liotti sought to bar the publication of the images in the interim, which was denied, as well as the agents staging perp walks to begin with, and putting out a press release to make sure the cameras were ready to click.


Spatt also rejected two other overall motions by Liotti to bar the government from arranging the taking of pictures of suspects in custody – “perp walks” – and from issuing news releases and otherwise commenting on criminal cases beyond a simple statement of the facts. Spatt said he doubted that he had the power to grant those requests.
As much as one might hope that neither government, by way of its law enforcement personnel, as well as the media, might elect to take the course that isn’t designed to do as much harm to a defendant as possible, with sensationalist photographs arising from a carefully crafted, wholly staged perp walk that serves no legitimate purpose other than to embarrass and humiliate a person, and create an image that will make a defendant look like a beaten, guilty person, the chance of Liotti’s motion being granted is slim to none.  And if it is, the chance of it being upheld is even smaller.  As it should be.

One could desperately want both government and media to behave with a degree of self-restraint and responsibility by avoiding the creation of this staged act of prejudice toward defendants.  The initial fault lies with the cops, who both conduct the perp walk and make sure the media is there to capture it.  The reason for this is obvious.  The justification for this is dubious. 

There is absolutely no legitimate rationale for law enforcement creating a scenario designed to prejudice an individual’s right to a fair trial.  And yet it’s routine.  Unfortunately, lawmakers rarely comprehend the reason why this is wrong until they find themselves on the wrong side of the camera.  I bet Roger Corbin knows better now.

As for the media, the story is about the arrest of a public official, and the photo of the official in cuffs is at the heart of the First Amendment.  It is certainly true that the story itself, which not even Liotti claims should be silenced, will make the point that Corbin was busted.  But a picture is worth a thousand words, and that cliché cuts both ways.  The arrest happened.  The perp walk happened.  The media is just doing its job.  While we may not care for the effect it has on the defendant’s image and the impression it leaves on the potential jury pool, that’s not part of the media’s job. 

The perp walk is one of those horrible anachronisms that has served well these many years to do as much damage to the defendant’s image and reputation as possible.  That our government does it, sanctions it, perpetuates it, is outrageous.  That the media exercises its First Amendment right to publish photos of it may be less an exercise of sound discretion than we want of them, but is undoubtedly a fully protected act.  It cannot, and it must not, be stopped by judicial fiat.

As much as I can appreciate Tommy Liotti’s point, and acknowledge the harm done Corbin’s effort to avoid the prejudice derived from these photos, they cannot be stopped in a society that honors freedom of the press.  To do so would cause far more grievous harm to free speech, and society, in the long run, and this would be even more intolerable than the image of Corbin doing the perp walk.

On the other hand, there would be nothing whatsoever wrong with the executive branch of government directing law enforcement to stop this odious practice.  There’s neither authority nor justification for our government to deliberately cause prejudice to a defendant by staging the perp walk.  All it would take is for the executive to put is foot down and say this is wrong and it’s going to stop now.

And yet no executive, to my knowledge, has ever shown the fortitude to do so.

Shopping With Ruth Madoff

Good Morning America ran a segment this morning with Chief Investigative Correspondent  Brian Ross about how Ruth Madoff has used stolen money to fund her millionaire lifestyle and create the cultivated image of sophisticated “old money.”  Now I’m no defender of Bernie Madoff (meaning that he’s yet to retain my services, though he would certainly be in better shape if he had), this extension of his crimes to imply that Ruth has sneaking about the aisles of Channel trying to dispose of the dirty cash is just ludicrous.

Worse still, the suggestion that Bernie Madoff and his family lived a life that bore any resemblance to old money is insulting.  Old money keeps it close to the vest, doing everything possible to squeeze a dime until tears flow from Roosevelt’s eyes.  They never like FDR anyway, since he was a traitor to his class.

Bernie Madoff ran a monstrously profitable enterprise, where he earned many millions.  That is was a Ponzi scheme doesn’t change the fact that on its face, it appeared to be a legitimate business and the paychecks he brought home had lots of zeros.  Need you be reminded that this is similarly true of many of our financial wizards, which explains why we lost so many of our children to the evil promise of investment banking?  It’s not like Bernie was the only Wall Streeter who was living high on the hog.

So Bernie brought home so pretty large checks on Friday, and Ruth went shopping.  There is no moral condemnation due her for having enjoyed the benefits of her husband’s “labor”.  If she knew Bernie was running a scam, that’s a different issue.  That she spent his money is no more troubling than any other spouse.

Why this matters is the fashion in which allegations of wrong flow downhill, tarring everyone who came after the wrongdoer as if they, by spending the tainted money, were complicit in the wrong.   One example was Ruth’s having enjoyed a dinner at Patroon for more than $1,900, which I assume covered some other folks as well since it doesn’t appear that Ruth was a big eater.  So the bill was a bit steeper than most of us would spend for dinner.  It’s not like she couldn’t afford it.  How does that make her evil?  How does that suggest in any way complicity in Bernie’s crimes?  How does that distinguish her from the spouse of a thousand other Wall Street bonus babies?  They make money.  They spend money.  Isn’t that the point?

The odor that is wafting in from this latest Brian Ross investigation is that of tainting others for living better than we do.  That it outrages the victims of Bernie Madoff’s scheme is fine; If someone stole a fortune from me and his wife was spending like a drunken sailor, I would be outraged too.  But to imply that it makes her a criminal is ridiculous. Yet this is the precursor to such allegations as money laundering for using the ill-gotten gains, once removed, to buy stuff.

There is nothing wrong, nothing at all, when we focus on the conduct that gives rise to a crime.  But as the connections become increasingly tenuous, distant from an act of wrongdoing and falling within the sphere of normal, expected conduct, and then try to spin that into some attenuated crime simply because we have such hatred for the people involved or they are easy targets because of what the masses perceive as their grotesque excess, these reports are no better than witch hunts.  Smear Bernie for what he did.  Maybe Ruth deserves to be smeared as well, for what she knew and for any complicity she might have in Bernie’s scheme.  But the fact that she lived the life of a woman of wealth?  Utterly meaningless to the issue or moral condemnation.

And as for “old money,” they would never live the lifestyle that Ruth and Bernie Madoff assumed. It’s not that they wouldn’t go out to dinner with them, though only if they had nothing better to do that day, but you can bet your life that they would have sat their with their hands in their pockets until Ruth picked up the check.

Iqbal and Our Important Government Officials

The Supreme Court’s decision in Ashcroft v. Iqbal makes me wonder, how did we go from public servants to government officials so monumentally important and distant from the people they purport to serve that they are beyond the reach of an ordinary person in a court of law?

As Liptak reports on the decision:


Mr. Iqbal, a cable television installer on Long Island, was among thousands of Muslim men rounded up after the Sept. 11 attacks. Some, considered to be “of high interest,” were held in a special unit of the Metropolitan Detention Center in Brooklyn.

One of them was Mr. Iqbal, who, he said, was kept in solitary confinement at the center, denied medical care and subjected to daily body-cavity searches, beatings and extreme temperatures. He said that he had been called a terrorist and a “Muslim killer” and that he had lost 40 pounds during six months in the special unit.

He eventually pleaded guilty to identity fraud and was deported to Pakistan.

Now I’m no softie on identity fraud, but I sincerely doubt that’s what the big guys in Washington had in mind when they rounded up every Muslim in sight after 9/11 and decided that daily body cavity searches were critical while they remained in solitary confinement within a federal detention facility.  You can never be too careful with identity fraudsters, right?

By 5-4, the Supremes turned Iqbal away.


Mr. Iqbal, Justice Kennedy wrote, failed to describe adequately how the actions of the two officials were connected to the mistreatment and discrimination he said he had suffered.

“It should come as no surprise,” Justice Kennedy wrote, “that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks should produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims.”

That’s absolutely true, unless, of course, the only “suspected link to the attacks” happened to be the fact that they were Arabs of Muslims.  In which case, it may not be such a legitimate a policy in the first place.  But the issue before the Court wasn’t whether the policy was legit or not, as this case dealt with whether the case could proceed at its earliest stage, not who was wrong.  Justice Souter, soon to be New Hampshire woodsman, dissented.



“Iqbal does not say merely that Ashcroft was the architect of some amorphous discrimination,” Justice Souter wrote, “or that Mueller was instrumental in some ill-defined constitutional violation; he alleges that they helped to create the discriminatory policy he has described.”

Justice Souter added that the majority had engaged in a sort of legal sleight of hand, ignoring a concession from the government that Mr. Ashcroft and Mr. Mueller would be liable were Mr. Iqbal able to prove that they had actually known of unconstitutional discrimination by subordinates and been deliberately indifferent to it.

The problem, between majority and dissent, is that it’s awfully hard to say with any degree of certainty what an important government official knows.  It’s hard to say where a policy comes from, and how it goes down the line.  There aren’t many press conferences out of the AGs office talking about how they’re going to toss all the Muslims they can find into solitary and do daily cavity searches. 

But if you happen to be a cable TV guy from Long Island who happens to believe that the Koran is a better source of religious belief than the Torah, enjoying the daily cavity search which otherwise breaks the silence of 6 months in the hole, who do you look to for responsibility?  It is imminently possible that Ashcroft and others had no clue that their departments were engaging in flagrant discrimination against Arabs and Muslims following 9/11.  Okay, nobody really buys that, but I’m trying to be even handed.  The point remains, how does anyone get to the bottom of anything involving an important government official?

From my seat, it’s our vision of “important government official” that stymies the effort.  I am deeply sorry to say this, but no government official is “important” in the sense that their service to the public makes them more important than the people they serve.  It’s conceptually wrong, yet reflects our quasi-rock star attitude toward anyone with a profile higher than Kathy Griffin.  How did we ever allow our public servants, SERVANTS!, to become this big?

This is the place in this post where I would insert some of my favorite historic tales of how officials, who today are so distant from ordinary people, were once deemed no mightier than those they served.  But Norm Pattis recently posted a story that I had never before heard, and so I offer instead.


[James] Wilson was appointed by George Washington along with five others on September 24, 1789. He was sworn in on October 5, 1789, thus becoming the first Justice on the Supreme Court.

Despite an ambition to serve as chief, he was passed over for the position thrice: in 1789, 1795 and again in 1796. “Increasingly during the 1790s Wilson became overextended in his investments and overwhelmed by financial distress. Twice he was jailed for debt. Eventually, to escape creditors he went into hiding in North Carolina.”
How cool is that?  A Supreme Court Justice twice thrown into debtors  prison, and then forced to hide in North Carolina.  Maybe it’s time for our important government officials to remember their humble history.  Maybe it’s time for citizens to remember that there should never be such a thing as an important government official in America.

Win An SJ Excellence in Criminal Defense Award Today!

When it comes to offering opportunities to show the world that you, a criminal defense lawyer extraordinaire, are a pre-eminent defender in your city, county or state, the criminal defense bar lags far behind other practice areas, particularly the personal injury field.  Hard to believe but true.

As Eric Turkewitz found out, a few shekels buys a PI lawyer a huge return in client self-promotion, the sort of thing that makes a client with a catastrophic injury chose pick one over the vast array of available talent out there.  How to distinguish yourself this way?


I’ve received the letter a few times, beseeching me to join the “Million Dollar Advocates Forum.” Oh boy! That looks mighty impressive. So I investigated to find out what, exactly, it is.

And now I’m here to report: It’s a great way to make money for the guy that thought it up. And little more. You pay him $1,200 and he gives you a certificate (gold embossed and suitable for framing!) and the right to use one of those groovy logos that you see to the right on your website. It is to me, short and simple, a marketing program.

The Forum is a “prestigious” group that is “limited” to those that have “won” million dollar settlements or verdicts. If you Google Million Dollar Advocates Forum you will find no shortage of lawyers boasting of this faux honor. But if a lawyer already lists such results on a website, why pay this guy $1,200 in cold, hard cash for this piece of marketing?

If you ask me, the logo is rather cheesy looking, and the name, while suggesting Big Money, just wouldn’t translate well for criminal defense lawyers, since it sounds like the Million Dollars refers to the legal fee, a potentially off-putting idea.  But for a mere $1,200 smackers, they get a great piece of paper to put on the Ego Wall and impress the living crap out of potential clients, plus a logo to use on a website, as well as something really big to crow about, that will draw in the injured and maimed like flies to sugar.  Why should PI lawyers get all the really good marketing tricks and criminal defense lawyers be left to fend for themselves.

Therefore, I have decided to institute something special for criminal defense lawyers: 


The Simple Justice Excellence in Criminal Defense Award
Here’s the deal.  The “winners”, and since it’s based on purely objective, fixed criteria, must satisfy my extremely high standards, will receive a huge certificate to hang on the wall, something like the old Supreme Court admissions certificates before the cut them down in size and changed the image to the front of the Supreme Court building.  You know, when it used to look really impressive.  It will have old English style writing, like the New York Times banner, and a big gold-colored seal with ribbons hanging off.  The ribbons will be bright red and blue, so that you can’t miss them.  This impressive certificate, guaranteed to impress even the most hardened of criminal, will be the centerpiece of your marketing strategy, and will more than pay for itself.*

In the upper center, there will be a logo, something like the Monaco Coat of Arms that appears really regal and important, that includes a motto like “Champion of Justice.”  It will also include something in Latin, because no one can understand what it says but people are blown away with lawyers who appear to know and use Latin, which reflects your intelligence and education and shows that you know more than they do.  The same logo will be available for use on your website and the Award can be included when you claim your Avvo profile, raising your Avvo rating to 10, the best there is!
http://www.nationmaster.com/encyclopedia/Image:Coat-of-arms-of-Monaco.svg
All “nominees” will have to pass my personal scrutiny to determine whether you meet my exacting criteria for this prestigious award.  You can nominate yourself or someone else, but all nominations must be accompanied with a check (good, not rubber) to cover my nominal processing costs of $2,400.  That’s right, only $2,400, twice what it costs to join the PI lawyer one, because we’re criminal defense lawyers and with this prestigious award, clients are going to be throwing money at you to defend them!  We’re twice as good and should pay twice as much.  Let’s rub it in their little PI faces that we can win Awards for a mere $2,400!

And the best part is that this Award comes with the name Simple Justice, the most trusted name in criminal defense, recognized worldwide as the gold standard for excellence, integrity and zealous representation. 

Don’t delay.  There will only be a grand total of only 5,000 awards available per year, so don’t miss out on this opportunity to show your clients and potential clients that they are fortunate indeed to have the opportunity to be represented by an SJ Excellence in Criminal Defense Award winner.

You paid for it.  You deserve it.  Operators are standing by. 

*Allow 6-12 months for deliver.

A Story for Young Prosecutors

Criminal defense lawyers can whisper, speak, shout about the flaws of a system that can convict the innocent, but you won’t care.  You believe in what you are doing.  You trust the experienced police officer who looks you straight in the eye and tells you he knows, knows, that the defendant is guilty.  You hear the victim, who has most certainly suffered pain and anguish, beg you to make the person pay for what he did to her.  She studied his face.  She knows who did it.  She would certainly never lie about it.  She will never forget that face.

James A. Fry was an assistant in the Dallas County District Attorney’s office.  He prosecuted Charles Chatman for aggravated rape in 1981.  Even if I don’t have the authority to tell you this story, he does.


I was certain I had the right man. His case was one of my first important felony cases as a Dallas County assistant district attorney. Chatman was convicted in a court of law by a jury of his peers. They, like me, were convinced of his guilt.


Nearly 27 years later, DNA proved me – and the criminal justice system – wrong. Chatman was freed from prison in January after DNA testing proved him innocent. He spent nearly three decades behind bars for a crime he did not commit – a stark reminder that our justice system is not immune from error. No reasonable person can question this simple truth.

So many of the elements that have long been sacred in the prosecution of a human being appear in Fry’s story.  The belief.  The evidence.  The certainty.  The win.  The satisfaction that comes from justice being done.  It took 27 years before it all fell apart. 


Chatman’s story is tragically not unique. The staggering number of exonerations attest to just how easily the innocent can be convicted. Nationally, 225 people have been released from prison after DNA testing proved their innocence. Seventeen of them had been sentenced to death. Twenty DNA exonerations were from Dallas County alone, the most of any U.S. jurisdiction. The vast majority of those exonerated in Dallas County would still be in prison but for the fact Dallas preserved its DNA evidence.

How many cases involve the Dr. Watson’s baby, DNA?  Very few.  Very few indeed.  Yet the elements that comprised a good conviction in 1981 remain the very elements that comprise a good conviction today.  But there won’t be any DNA to sort out decades later.  The conviction will be immutable.  It will be forever.  You won’t have a story to tell 27 years later about how, despite the absolute certainty that the outcome was just, you were wrong.  You can sleep well at night knowing that no miracle of science will ever prove that you convicted an innocent man.  But that doesn’t mean that it didn’t happen.

James Fry has no regrets about being a prosecutor. Indeed, we need prosecutors.  There is crime.  There are bad people.  There are victims whose lives and bodies are horribly hurt by crime.  But within this need is also a need for concern that two wrongs don’t happen:  The wrong done the victim and the wrong done the second victim, the innocent person convicted.



I am no bleeding heart. I have been a Republican for over 30 years. I started my career as a supporter of removing violent people from society for as long as possible, and I still believe that to be appropriate.

But I also believe that the government should be held to the strictest burden before it deprives a citizen of his freedom. It is not too much to ask that we not convict and execute innocent people in our quest to enforce the law. Let’s get this system fixed. 
It’s axiomatic to say the system isn’t perfect.  For some, the mere incantation of these words relieves all sense of responsibility for the flaws of the system.  But we are the system.  The system is people, prosecutors, defense lawyers, cops, judges, each of whom has a role to play.  Each of us has a role to play in doing everything we can to make sure that a crime doesn’t have a second victim. 

Don’t be so smug.  Don’t be so certain that you know everything.  Don’t be so absolute that you can’t harbor doubt.  You aren’t that good.  None of us are that good.

Don’t believe me?  That’s fine.  Then believe James A. Fry.  He’s been there.  Read Fry’s story in the Dallas Morning News and ask yourself, are you so much smarter than Fry that you could never be wrong?

Chicago: Get a Life, Give a Life

Next week, Total Attorneys is throwing a conference in Chicago.  It’s not for criminal lawyers, or IP lawyers, or family lawyers, though all lawyers of these and other stripes are invited.  It’s for lawyers who want to “run their practice without running themselves into the ground.”  Who doesn’t?  It’s the Get A Life Conference.

I remember as a young lawyer whose days were spent in court, using my evenings to meet clients, return phone calls, read mail, write motions and briefs, discuss cases and generally suck up time that might otherwise have been spent with my young family. 

Contrary to popular belief, I didn’t hang out in the office because it was way more fun than being home.  I wanted to enjoy time with my wife and children.  I wanted to relax.  I wanted a happy and fulfilling life.  Who doesn’t?

The focus of the Get A Life Conference is to teach lawyers how to achieve Work-Life Balance.


In this two-day conference you’ll learn how to manage all the moving parts of a successful law practice while still maintaining a life. Learn from some of the foremost experts on the subject.
No, I wasn’t asked to speak at this conference.  In fact, I’m probably one of the last people the participants want to hear from.  I’ve been somewhat vocal about my thoughts on work-life balance.  The notion is that one can have a profitable, successful law practice without sacrificing your personal life. 

At the moment, according to Total Attorneys honcho Kevin Chern, there are 110 lawyers who have paid good money to learn the secret.  The number isn’t huge, but then when one considers the nature of the conference, it’s really quite amazing that 110 lawyers have chosen to spend their time and money going to this conference.  After all, if they have two free days, and cash to burn, why not take a short trip to the Bahamas instead?  Work-life balance and all.

The gist of the conference is marketing, judging from the agenda and speakers.  I’m also not a big fan of overemphasis on lawyer marketing, a silver bullet that too many lawyers view as the lazy way to achieve success rather than through effort and skill.  But some of the speakers are people I respect, such as Kevin O’Keefe and Larry Bodine, who view marketing as an adjunct to quality rather than a substitute.  Others, like Alexis Martin Neeley, not so much, claiming that after she created her own million dollar practice three years out of school, she threw it away because of a calling from God to help other lawyers.  For a hefty fee.  I’ve asked her why she did this and she told me it was her gift.  Right.

There are apparently many lawyers, mostly young, whose professional focus is the attainment of wealth while enjoying a high quality of life.  So much so that they will pay money to find out how to achieve these ends.  And then there are many lawyers who have turned away from the law to create businesses whose purpose is to help these lawyers to do so.  Come next week, they will be in Chicago.

There are 36 people who will not be attending a conference, the purpose of which is to Get A Life.  Granted, they aren’t lawyers.  They will never have the chance to be lawyers.  These 36 people are school aged children who have been murdered so far this school year.  About one a week.  In Chicago.

The juxtaposition of these two occurrences serves to make me wonder why people become lawyers these days.  The cynical public perception is that lawyers are in it just for the money.  These cynical people are wrong, according to the Work-Life Balance crowd.  They’re in it for the money and the good life.  Having carefully parsed the agenda of the Get A Life Conference, I see no workshops on how to use our education, skills, clout for the benefit of anyone else.  Not clients.  Not school age children in Chicago.

I don’t think that the attendees have no feelings toward the 36 school age children who were murdered in Chicago this year.  I bet they feel awful for them, about the lives of innocents lost.  What sort of unfeeling animal wouldn’t care?  Just not enough to put aside their personal desire to make a lot of money and spend as little time doing so as possible.  The latter is important enough for 110 lawyers to take two days, travel to Chicago, pay the conference fee and listen to salespeople.  The former merits a “tsk” over morning coffee.

There are 36 families in Chicago at this moment who would like to get a life.  Back.  There are 110 lawyers coming to Chicago for something that matters a great deal to them.  It’s a shame the two share nothing in common.

Retribution and the Goldilocks Syndrome

Former defense lawyer turned prosecutor Ken Lammers, of  CrimLaw fame, has proven yet again his vast computer skills by the creation of a colorful graphic designed to make the point that Sherry Colb’s post on the “holier than thou” effect, raised by the New York Times, is misdirected.  In its place, Ken offers the “there but for the grace of God” process.  Since everybody else was giving their thoughts cool names, I’ve decided to do it too.

Ken describes Colb’s views on the “holier than thou” effect:

Basically, it is the inability of people see themselves as a person who would fail in situations where they were tempted – through chance, fate, or desperation – to break the societal compact as embodied in the law.

Ms. Colb goes further identifying 4 purposes to criminal law: retribution, deterrence, incapacitating offenders, and rehabilitation. She identifies retribution as the primary focus of the American system based upon the lack of rehabilitation programs in prisons in combination with rapes and gangs. Then she concludes that locking someone away in this situation, away from law-abiding citizens is a bad thing, so that shorter sentences are most likely preferable.
The initial description, that people fail to see themselves as criminals, seems merely a variation on Hart’s moral condemnation theory, explaining the existence of criminal law to address those whom society feels are bad people and in deserving of punishment.  The problem with this definition, of course, is that our criminal laws extend well beyond acts that most people, if independently asked, would believe to reflect a moral failing.  Some of our malum prohibitum laws are a real stretch from evil-doing, but people still chose to believe that only those deserving of moral condemnation end up in prison. 

As for Colb’s “identifying 4 purposes,” these have long been recognized as the bases for the imposition of sentence, both statutorily, by caselaw as well as theory, and are the universally accepted and acknowledged legitimate rationales for the imposition of sentence.  Not sure if Ken really takes issue with them, but by attributing them to Colb as if the invented them, he suggests that there’s something controversial about them.  If so, I haven’t a clue what the problem might be.

And finally, Ken gets to the heart of his problem, that Colb concludes that retribution results in sentences that are counterproductive to the other purposes of sentencing and is societally detrimental.  Here’s where Ken’s graphic comes into play.



Ken explains:


This article struck me as wrong in many ways, but I’m just going to concentrate on one here: Ms. Colb badly overestimates the effect of “holier than thou” on the system. Our system is far more dominated by the “there but for the Grace of God” thought process.

Here’s a graphic of how I’ve observed the punishment of offenders in the time I’ve been practicing.

While Ken’s chart is crafted from his personal experience, I really have little issue with the curve.  It’s the same as my experience, without any overly slavish reliance on the specific numbers.  It captures the point. 


Why is there such a severe downslope? Because the greatest number of offenses are treated with mercy. People just don’t get thrown in jail for reckless driving, DUI, writing a bad check, or most misdemeanors the first time they are convicted (without aggravating circumstances). There’s a good chance they won’t go to jail for a second or even third misdemeanor conviction, particularly if they are different types (driving suspended, bad check, assault and battery). Furthermore, there’s a whole slew of felonies wherein the first conviction will only get an offender probation.

Next come the convictions which should lead to incarceration, but do not because they are somehow diverted. Sometimes this is just having a case continued to be dismissed if there are no problems for a year. In other cases there are drug courts, shoplifting classes, anger management programs, and/or community service given in lieu of incarceration.
I think Ken may be ignoring some salient aspects in his equation.  First, that there are invariably going to be a far greater number of petty offenses than what we consider to be the more serious ones deserving of moral condemnation, such as murder, rape and robbery.  I doubt that anyone, regardless of what chair one is seated in, believes that there should be only one penalty for all offenses, regardless of seriousness.  Thus, the fact that there are a far greater number of offenders receiving lesser punishments doesn’t reflect society’s “there but for the grace of God go I” attitude, but merely a proportionate scale of moral culpability.  A jaywalker simply doesn’t deserve the death penalty under any theory of punishment.

Second, Ken’s approach assumes that every criminal offense inherently reflects a societal determination that the conduct itself is evil, as if there was no distinction between malum prohibitum and malum in se.  This ignores the fact that our legislative bodies have disconnected the concept of moral wrong from the criminal law, enacting laws that criminalize conduct that carry no inherent moral fault.  The condemnation stems from the mere fact that it is a criminal offense to do, or not do, a particular act because a legislature has so decided, not because the act itself is inherently wrong. 

There’s no reason why we drive on the right side of the road rather than the left per se, and it only constitutes recklessness because a choice was made to keep us to the right so that we don’t crash into each other if every person was left to his own personal choice.  The problem is exacerbated 10,000 fold when we consider the plethora of technical regulatory violations that are designed to keep us to the right even though, in and of themselves, they are merely choices to smooth out the societal compact.

Rather, I think Ken’s issue with Sherry Colb is the “Goldilocks Syndrome” (see, I told you I had a cute name for my own theory).  Ken’s take is colored by where he now sits, at the table closest to the jury.  Where I see jailing or imprisonment used too frequently in the name of retribution, Ken sees it as under-utilized.  Too much, too little, just right.  It’s different for each of us.

The reason for our difference seems quite plain.  Retribution, unlike the other sentencing considerations, is a purely subjective measure.  How much suffering should be imposed for certain criminal conduct?  Should jaywalkers get the death penalty?  Should murderers get life in prison?  The spectrum ranges from a stern talking-to all the way to the executioner’s chamber.  Where along that spectrum should a particular act fall in order to satisfy the lust to impose some degree of suffering on the wrongdoer?

This isn’t a fair subject for argument.  We each see the degree of appropriate restitution differently, and certainly those of us disconnected from the specific offense see it differently from those who suffered as the victim of the offense.  Most of the time, victims feel that the perpetrator of their suffering have gotten away “too easy,” meaning they haven’t suffered nearly enough for the suffering they’ve imposed.  This is why sentences are supposed to be imposed by a detached person, whose vision isn’t colored by the pain of the victims, and why the “victims rights” movement is misguided.  On the other hand, what basis would a detached sentencer use to determine the appropriate degree of retribution to be imposed?  It’s retribution.  It’s supposed to cause suffering.

Which brings us back to Sherry Colb’s point.  If our purpose in imposing suffering on criminals is retribution, then the question of whether a sentence is too harsh, too lenient or just right is wholly personal and arbitrary.  There is simply no right or wrong answer as we each weigh the degree of moral condemnation differently.  But if the purpose of sentencing is to reduce crime and take wrongdoers and convert them into productive, law-abiding citizens, then retribution is counterproductive to the goal.

For those who think that we are too soft on crime because we say, “there but for the grace of God go I,” I wonder what amount of suffering would satisfy your visceral desire.  How do you propose that society arrive at the “right” amount of suffering?  What cost, in terms of turning out productive, law-abiding citizens, are you prepared to accept to indulge in the imposition of suffering for its own sake?

Most people would insist that some degree of retribution is needed as part of a criminal sentence, provided of course they don’t look too closely at some of the stuff they call criminal these days, but few consider why retribution seems to quiet our soul.  Since it comes at a relatively steep price, we really need to consider the trade-off between our moral outrage and what we expect to get out of prison at the end of the sentence.  We pay for it either way.

Love Science, Hate Science

As the collection of DNA samples by law enforcement and courts expands exponentially in order to create a database that can be used to identify those who commit crimes, these same advocates fight hard to prevent access to DNA from the past that might undo their “hard won” convictions.  This seemingly irreconcilable stance belies the constant tension between the prosecution and the defense, and the emptiness of the claim that we only want to convict the guilty. 

The New York Times provides a survey of cases where prosecutors are fighting to keep defendants from obtaining DNA tests to prove their innocence.  Why?  Why would prosecutors, whose professed ethical responsibility is not to convict but to do justice, argue against the use of the very test that they so desire, so enjoy, when it suits their purposes?



Mr. Reed has been seeking a DNA test for three years, saying it will prove his innocence. But prosecutors have refused, saying he was identified by witnesses, making his identification by DNA unnecessary.

In Illinois, prosecutors have opposed a DNA test for Johnnie Lee Savory, convicted of committing a double murder when he was 14, on the grounds that a jury was convinced of his guilt without DNA and that the 175 convicts already exonerated by DNA were “statistically insignificant.”

And in Tennessee, prosecutors withdrew their consent to DNA testing for Rudolph Powers, convicted of a 1980 rape, because the victim had an unidentified consensual sex partner shortly before the attack.
These reactions, when stripped of their rhetorical elements, are clear:  We won and we’re not giving up the conviction without a fight.  Bearing in mind that DNA evidence applies in a minute fraction of cases, meaning that the statistical significance of wrongful convictions, often as a result of mistaken identifications, is proportionately larger when one considers that it should happen with the same frequency in cases where there is no DNA to be tested, one would think that the prosecutors could show a little more grace in letting the convicted have a chance to test the DNA.  But no, all the nice talk about the government’s ethical responsibilities go flying out the window when they’ve got a conviction to protect. 

On the one hand, it’s fair to assume they believe they have the right guy in prison, so are acting with a good faith belief that they aren’t imprisoning an innocent person.  On the other hand, if their belief holds water, then what’s the harm of letting the test proceed?  If the defendant is guilty, why should they fear a test that could conclusively prove it?  If nothing else, it has the stink of a disingenuous position.  Why is this miracle of science wonderful when used by the prosecution, but unfair when used by the defendant?

While it would be easy to harp on the prosecutor’s duty, distinct from the defense in that it is supposed to seek justice, whether that be the conviction or acquittal of the defendant.  The prosecutor should no more want to see an innocent person convicted than the defense.  So, the truth comes out in this Times’ article that there are prosecutors out there whose interest in protecting their convictions exceeds their ethical duties.  What a shock. 

The excuses offered are silly, easily undermined by basic arguments, facts and the science itself.  There is no good reason to refuse a convicted prisoner access to DNA testing.  Even the slippery slope, that if they let one prisoner do it, every prisoner will want to if for no better reason than to take a shot in the dark.  After all, they can’t do worse than they already have.  But this doesn’t pan out either, both because there are so few DNA cases to begin with, and because it involves DNA testing on old cases, since new cases are having it done already as a matter of routine.  Assuming the worst, it’s just not much of a burden. 

And so we get down to the bottom line of the issue squarely framed in the Times’ article, yet wholly ignored.  Who cares what the prosecutors have to say.  Why aren’t judges ordering these DNA tests? 

Somehow, these stories forget that there is a person in the room who gets paid to make decisions about disputed issues.  Even if prosecutors are busily defending their convictions, they can only do so if judges are busily facilitating them.  A judge need only utter the word “granted” when a defendant seeks a test to put the issue to rest (at least absent appeal). 

When one reads that a defendant has been waiting for years to get a test, or that a prosecutor is not agreeable, does anyone question what the judge is doing about this?  How did this escape the Times’ attention?

While one can easily point the finger at the adversary and complain that he’s not as kind-hearted as we would want, we need to get beyond this expectation that every prosecutor in the criminal justice system is going perform his function admirably and remember, there’s a reason we have judges.  I’m not excusing prosecutors for their failure to honor their ethical duties; I’m challenging judges to fill the breach.  That’s why you get to wear the cool robes.

The Academy’s Guardians of Free Speech

Intellectual freedom is a fundamental hallmark of education.  Just ask any tenured teacher, asked to justify why she can’t be fired for incompetence.  But when it comes to the American Association of Law Schools, freedom is just another word for women first and foremost, judging from the ideological capture of the Section on Defamation and Privacy.


Chair:  Professor Danielle Keats Citron, University of Maryland

Chair-Elect:  Ann Bartow, University of South Carolina

Any names ring a bell?  Why yes, that would be Cyber Civil Rights advocate Danielle Citron, who argues for the elimination of free speech online in the name of converting online bullying into a women’s rights issue.  And right behind her is Ann Bartow, ringleader of Feminist Law Professors, whose personal brand of “take no prisoners” feminism tolerates no dissent, and has cowed most pedagogues into silence for fear of public excoriation.  I’m not suggesting that they aren’t entitled to their views, but can’t imagine how the rest of the lawprofs allowed such extremists to seize control.

As if to make the point, when Paul Horwitz at PrawfsBlawg posted about his “uneasy feeling” with the stifling of dissent to Danielle Citron’s theories during the Cyber Civil Rights Symposium at Concurring Opinions, a robust discussion followed.  The post was written on April 16th and the discussion continued through April 20th.  Everyone took a deep breath and went back to their corners.

On April 28th, more than a week after the last comment, up shows Danielle Citron, who produced a lengthy, though vapid and entirely self-serving, rationalization of her position, ending with this gem:


I hesitated speaking to this issue as I fear cyber harassment, which I have clearly experienced personally and indeed as Dave notes has included menacing threats of physical harm (which we at CoOp removed).

Thus, we at CoOp feared that this would happen–harassing reputation harming assertions against women in the comments–and it did.


How wonderfully circular her self-serving assertion of victimization.  The problem with questioning, challenging, disagreeing or disputing Citron’s position is that the act of doing so constitutes harassment against women, since harassment has an ever-floating definition of anything that makes Citron feel bad and she is (“clearly”, as she uses to emphasize her secret personal experiences) a woman.  We are awaiting a protest from the Harassment Against People Want to Stop My Free Speech In Favor of Their Free Speech contingent (club in formation).  After Citron left this comment on the 28th, comments were closed.  End of story.

Some might see my chiding the views espoused by Citron and Bartow as harassment.  No doubt many lawprofs will, since I hesitate to use the sweet endearments of the Academy designed to soften the blow of disagreement by obfuscating the message (oops, there I did it again).  But to the extent that the AALS hopes to maintain integrity and carry any suasive force, having people take over a section when their facial agenda is the subjugation of speech to their gender politics smacks of absurdity.  Should their views be expressed and debated:  Absolutely.  Should the AALS lead the charge for the elimination of free speech whenever somebody’s feelings are hurt?  I don’t think so.  If the person whose feelings are hurt is a woman, does that change everything into women’s rights issue?  Not even close. 

Much as I hate to correct a leading feminist, women are people too.  Stuff that happens to the rest of us can happen to women.  That doesn’t change the fact that it happens into a civil rights issue.

What made this perversion of intellectual integrity more ironic was Anne Reed’s latest post at Deliberations about why mean women are so fascinating, based on the New York Times article about bullies in the workplace:



It’s probably no surprise that most of [workplace] bullies are men, as a survey by the Workplace Bullying Institute, an advocacy group, makes clear. But a good 40 percent of bullies are women. And at least the male bullies take an egalitarian approach, mowing down men and women pretty much in equal measure. The women appear to prefer their own kind, choosing other women as targets more than 70 percent of the time.

NO! NO! NO!  Heresy!  Burn her at the stake!  You see, the feminine mystique depends upon men being evil and women being sisters, cowering in fear of the evil men harassing and attacking them by their unwanted gaze.  If women are subject to no greater negative attention from men than persons of the other gender, and are in fact subject to attack by their own far in excess, the whole paradigm falls to crap.  Let’s have the feminists explain that one.  Actually, they can, since there are good women and evil women.  Guess which ones are the good women?

That there are many in the Academy who share the views of Citron (and even a couple who agree with Bartow, though more feign agreement just to avoid being the target of her venom) is absolutely fine.  Everyone is entitled to be wrong.  But that the Academy has elected chairs for whom free speech is a value just one step below herpes calls into question any intellectual authority the AALS might have to either lead the discussion, or in fact participate as the representative of law schools.  It has traded its mission, “as the learned society for law teachers and is legal education’s principal representative to the federal government and to other national higher education organizations and learned societies,” to pander to strident extremists. 

Glad I’m not a lawprof so I can write these things.  I’m sure that my horrible words, coming from a lowly trench lawyer like me, will mean little to the intellectually superior pedagogues who vouchsafe the legal education of our youth, who no doubt will honor, protect and defend the sensibilities of our delicate flowers now that Citron and Bartow are in charge.

Tortured In Buffalo

No, torture is not intended as a commentary on merely being in Buffalo, though some might disagree with me.  But Ryan Smith, who was tasered by a coterie of cops who put their very best thoughts together and decided a good tasering was the brilliant method of obtaining compliance with a court order for another DNA sample after the first was lost, was looking at torture straight in the eye, according to his lawyer, Patrick Balkin. 

From the Buffalo News :


Friday, wrapping up a hearing on the Taser case, Balkin repeatedly called the use of the stun gun “torture.”

He said testimony from four of the five police officers at the scene established that Smith was handcuffed and sitting on the floor when the Taser was used.

“No defendant has ever been brought before a court for contempt in the United States where a judge ordered them Tasered to comply,” Balkin said. “We have 100 years of [collective] police experience with these officers and this is the best they can do, to Taser a handcuffed client?”

Balkin quoted Detective James Galie as saying, “Ryan, we’re going to do this again and again until you comply.”


While there was no testimony to this effect, the general understanding in Buffalo is that waterboarding is unacceptable because the water would freeze before filling anyone’s lungs.  This, unfortunately, limits the options.

Of course, the prosecution, by ADA Susan B. Bjornholm, wasn’t without its arguments in support of the decision by police to use a little “persuasion”:

“The people believe the evidence in this case was legally obtained,” Bjornholm said. “[Smith’s] DNA was found at the scene of a horrific crime where a person was shot and children were duct-taped.”

And yet, they do conduct the occasional trial in Buffalo to determine whether people are guilty or not, circular reasoning notwithstanding.

But the better argument came to me via our hinterlands correspondent, Kathleen, who informs that she learned from Balkin the prosecution’s best argument in the hearing:

We  use electricity in the courtroom all the time.

You can’t make this stuff up, though one has to wonder how this line didn’t make it into the Buffalo News article.  I’m shocked Bjornholm didn’t invoke the memory of Old Sparky.  Ah, if chairs could talk.  But I digress.

What cannot be explained is the prosecution’s inexcusable failure to raise the really strong arguments in favor of using a taser as “the great persuader,” given that corrections officers in Florida are happy totase their own children just for fun, when “43 children were directly and indirectly shocked by electric stun guns during simultaneous Take Your Sons and Daughters to Work Day events at three Florida state prisons last month.”  Aside from the weather, is Tallahassee really all that different from Buffalo?  I mean, 50,000 volts is still 50,000 volts, right? 

Following the lengthy hearing, the court reserved decision.

Niagara County Judge Sara Sheldon Sperrazza on Friday gave herself two weeks to decide whether to allow prosecutors to use a DNA sample taken from a Niagara Falls man after he was zapped with a Taser electronic stun gun.

“I’m not certain until I do all the research which way the decision is going to go,” Sperrazza said from the bench.

But the prosecution is taking no chances.


It filed a request asking for another DNA sample from Smith, which defense attorney Patrick M. Balkin said was probably a fail-safe in case he wins his motion to throw out the sample taken after the Sept. 29 Taser incident at Niagara Falls Police Headquarters.

I can’t wait to find out what they come up with next time to persuade Smith to cooperate.  After all, we’re now going into the temperate season in Buffalo, and water will again readily flow.