Proving the blind squirrel theory, Above the Law breaks the news that Madlyn Primoff, the Kaye Scholer partner who took an old parenting tactic a few steps too far, took a conditional discharge to end her prosecution for endangering the welfare of a child. 

In case you missed this, Primoff’s kids were misbehaving in the back seat, and she had enough.  She did what so many parents have threatened to do, kick them out and make them walk home.  The difference is, she actually did it. 

Madlyn Primoff apparently couldn’t bear any more squabbling between her 10- and 12-year-old daughters Sunday and booted them out of the car in White Plains, Westchester County, authorities said.

The fedup Scarsdale mom – a partner at white-shoe firm Kaye Scholer – soon relented and let her 12-year-old daughter back in when she caught up with the family car.

The younger daughter wandered around the corner to Mamaroneck Ave., where a good Samaritan spotted her in tears about 7:30 p.m., bought her ice cream and then approached a cop in a patrol car.

Next time you’re threatened by a Kaye Scholar partner, you might want to take it seriously. 

There’s not a parent around who hasn’t made the same threat as Primoff.  Granted, she took it farther than most of us would ever consider, but then the claim that she actually abandoned a 10 and 12 year old on the mean streets of Mamaroneck Avenue is somewhat exaggerated.  She went back to get them after making the threat real.  After all, don’t the experts tell us that when we threaten punishment, we have to follow through on it?

Not that I’m advocating either the threat or the conduct, but there was once a time when parents were not merely allowed to discipline their children, but expected to do so.  The old axiom, spare the rod and spoil the child, held meaning.  We complain bitterly about what’s become of parental discipline, yet put parents at risk of prosecution for doing the things that our parents did routinely.

So Madlyn Primoff was prosecuted, and the case ended with a conditional discharge, meaning that it will be dismissed in six months provided she doesn’t commit a crime.  While it’s a favorable outcome in that it concludes the matter without a conviction, it’s not considered an outcome favorable to the accused under New York law.  It’s more of a tie.

But the sentence means nothing.  The image of Primoff’s mugshot will follow her forever.  She is the Biglaw poster child for parental abuse and poor judgment.  I assume she’s a good lawyer, or they wouldn’t have made her a partner, but that’s all forgotten now that she could be easily mistaken for one of Charles Manson’s disciples.  Was her conduct that bad that she will bear the scar of shaming for the rest of her life?

Some will think that by tossing her kids out of the car, she took a terrible risk of harm to her children and deserves the shame she’s received.  Maybe so.  But the dividing line between acceptable parental discipline in the age of fear, and the momentary blown synapse that results in a bad call, is far too blurry to destroy a career and ruin a life over.  I wouldn’t have done what Primoff did, and trust me that I’ve had the urge and the opportunity, but I similarly understand everyone makes a judgment call that, after the fact, they wish they hadn’t.

No harm came to Primoff’s kids, though her youngest was scared.  This was fortuitous, in that they didn’t wander into the streets or get kidnapped by a pervert.  Of course, these weren’t likely outcomes, except in the fantasies of those advocates for whom no parental act beyond a hug is deemed acceptable.  There is no allowance for the fact that sometimes kids need to be taught a lesson about behavior.  Hugs are great, but they aren’t always the proper response.

The point is that Primoff walked out of court with a conditional discharge, but will never be able to walk away from a moment of lapsed judgment in a twisted effort to be a parent.  Before you assign moral condemnation to her choice, think about the myriad of choices a parent faces in trying to raise their children to act appropriately, and how many of us can navigate parenthood perfectly. 

A district attorney’s job is to ascertain who has committed a crime and then prosecute the sucker.  Unless, of course, that sucker happens to be a giant corporation and it’s willing to throw some cash into the middle of negotiations, which then turns the DA into a politician with a constituency.  Suddenly, all is forgiven, for a price.

When a worker died under the heels of anxious shoppers at a Long Island Walmart, a criminal investigation ensued.  Was Walmart criminally liable for its failure to have an adequate security plan in effect to protect the life of Jdimytai Damour, a temporary employee who had the misfortune of being between the shoppers and cheap goods?

From Newsday :

Mega-retailer Wal-Mart will avoid criminal prosecution for its role in the fatal post- Thanksgiving Day stampede at its Valley Stream store by agreeing to overhaul its statewide safety plan, paying out $400,000 to victims of the melee and donating $1.5 million to community programs, Nassau District Attorney Kathleen Rice said Wednesday.

“No prosecution could have achieved what we have been able to do with this agreement,” Rice said. “Rather than bringing the world’s largest retailer to court and imposing a small fine against them, I felt it was important to require significant safety changes that will affect the whole state.”

Rice “felt”.  Rice is the elected district attorney, not the elected “feeler”.  We haven’t had one of those since Bill Clinton.  Worse still, Rice explained (and when there’s a camera on or a reporter around, Rice is always available to explain):

Rice said the agreement is “unprecedented” and stressed that it is rare that a local prosecutor’s office could win major concessions from the nation’s largest retailer.

Rare indeed.  Not because a local prosecutor can’t use the power of prosecution to exact cash in exchange for prosecution, but because most local prosecutors understand the purpose of their office. 

It’s not that I’m against this deal, as a criminal defense lawyer, but that I’m jealous.  Why can’t all targets (get the pun?) buy their way out of prosecution for a cash contribution?  Bernie Madoff is likely thinking the same thing.  If Rice truly wanted to benefit her “constituents”, she should post a fee schedule on the courthouse door.  I wonder how much she would charge to get out of a murder?  According to this story, the price appears to be $1.9 million.  That’s quite a deal, really.  Plus, there are always manager’s specials for those who are of the egalitarian point of view.

Frankly, I don’t know that Walmart holds any criminal responsibility for the animalistic actions of shoppers.  I don’t know that anyone, or any corporation, can anticipate relatively normal people (assuming that Long Island shoppers are relatively normal) stampeding and trampling a human being.  Personally, it’s unlikely that a Thanksgiving Day sale would be worth my killing someone, but that’s just me.

But Rice doesn’t argue that this deal was acceptable because liability was questionable.  That would have been a very different position.  She lauds herself for doing the politician’s job of getting cash from a potential criminal defendant in exchange for not prosecuting.  In Nassau County, cash is king. 

The only question now is when Kathleen Rice plans to run a two-for-one sale.  Now that’s a deal.

When I questioned why USLaw.com used my posts, in their entirety, on its website, it caused quite a ruckus.  It seems that the proprietor of USLaw.com, a fellow who uses the name Gregory Chase, though I have good reason to believe it’s a fake, reacted quite poorly.  I was absolutely wrong, he informed me, and I was damaging his business.  He was going to “embarrass” me and tossed slander out (I know, but he apparently isn’t aware of the distinction between slander and libel).

Using an appeal to “fairness”, a curious thing for someone in his position, Chase told me that I had agreed to allow him to steal my stuff in January, 2008.  Anything being possible, I decided to check.  In the meantime, he continued to defend his honor, going so far as to email commenters to the post to tell them how wrong I was.  As the subsequent comments show, Chase’s efforts were not well received. 

Now that I’ve had a chance to review the emails from and to Chase, here’s the deal.   Chase was correct that we had email correspondence in January, 2008.  He send me a solicitation that stated:

We’d be pleased to add your excellent Blog to our great new law blog directory at:

www.uslaw.com/law_blogs

You’ll find a link to a form through which you can submit your blog for inclusion.  As you’re no doubt aware, a high quality directory is a greet way to increase your exposure and web traffic.  Let me know if you have any questions.

Best,
-Chase
USLaw.com
#1 Consumer Law Website

I took a look around the website and saw that Skelly at Arbitrary & Capricious was on there, so I sent Skelly an email asking him what he know about the joint.  He responded that he knew nothing and was unaware that his blawg were in there.  He didn’t seem pleased.  I nonetheless decided that it was no big deal to be part of someone’s blog directory.  After all, he offered “exposure and web traffic,” which is fine, and being in someone’s “directory” hardly seemed a big deal.   

I saw that the website listed Skelly’s blog and had blurbs, which I assumed linked back to A&C, like every other blog directory I’ve ever seen.  Nothing suggested that he would scrape other people’s website for their content, effectively appropriating their content wholesale.  Given the content of USLaw.com, there was no reason to ever go back and look again.  Had it not been for David Giacalone, I would never have known.  I bet that most blawgers have no clue that this is happening to their content.

Nowhere did he mention anything about infringing on my copyright and trademark.  Nowhere does he mention linking his index of my posts to his own republished versions of my posts on his website.  Indeed, the one thing he absolutely did not deliver was web traffic, since what he was doing was directing traffic for my posts in his directory to his own unauthorized copies of my content on his website.  Uh oh.

So I was going to put SJ into the directory, but the link didn’t work.  I let Chase (back then he had yet to add the Gregory, apparently) know, and he added Simple Justice to his directory.  And from this he apparently believe he was entitled to appropriate my content.  And if you saw the index of my posts and wanted to read the full post, would click in his link which would take you to my post on his website.  And apparently, to the extent there are links back to my blawg, they are “no follow” links so that they aren’t recognized by Google and the like.

The confusion here appears to be that Gregory Chase, or whatever he calls himself today, is of the view that allowing my blawg to be listed in his blawg directory somehow constituted authorization for him to take my content, in its entirety, and republish it on his website, link his index of my posts to his reproduction of my content and, apparently, superimpose an image of his USLaw logo on an image of my blawg, as if that existed in reality.  He’s wrong.  Absolutely, completely, wrong.  I’m sure he will disagree, but it doesn’t matter since it’s not up to him.  The law is clear, and he’s on the very wrong side of it.  He doesn’t get a license to my content because he “feels” that he’s entitled, and it doesn’t matter how strenuously he feels.  It’s just not his to take or use.

What we have here is a failure to communicate.  Chase absolutely, if I can trust his emails to me (see below), believes that by including SJ in his directory, I waived all rights to my content and authorized him to do as he pleased with it.  Because of this, he believes that he is entirely in the right.  He went even further in a comment to WindyPundit where he wrote :

For the record, Scott Greenfield granted USLaw.com permission to include his blog feed in it’s Blog Directory. His recollection has been refreshed on this point and we await his response.

Note the disconnect from reality, where it went from a directory, to permission to include my blog feed, to permission to infringe on my copyright and trademark, with absolutely no comprehension of the distinctions.  He’s totally, ignorantly wrong, and whoever told him that this was acceptable, and legal, needs to have a long talk with competent counsel.  I might be inclined to call this an outright lie, but for the fact that I don’t think Chase comprehends that he lacks permission to republish my original content or alter my trademark by superimposing his onto mine.  It’s just sheer, banal ignorance, rather than venal conduct.  The guy’s just plain wrong but suffers from the Dunning-Kruger Effect.

While I don’t think much of the way Chase runs his little website, concealing his identity and making it impossible to communicate with him except on his terms, I can forgive his ignorance because he has apparently been horribly misinformed.  But I find it far harder to forgive his fraudulent inducement, claiming to increase web traffic when he links to his infringed copy of content rather than to the original.  More web savvy guys than me can explain all the details of how this happens and what it’s called.  But the bottom line is he’s infringing on my copyright and trademark, defrauding blawgers by inducing them to list in his directory in exchange for traffic that will never come, and doing all of this to make a dime off the work of others.  He’s not my kind of guy.

Chase has asked me to review all of this and then apologize profusely for all the harm I’ve done his business.  I don’t think he’s going to be satisfied with this post.  Interestingly, I’ve received a number of emails from him since all this began, with Chase assuming that I will honor his request not to disclose his emails because he wants to keep this quiet and “de-escalate” what he perceives as my attack on his perfectly legal, wholly legitimate business.  Why he would think this is unclear, but I owe him no duty to conceal his emails, and have reproduced his last one below.  Now you can see what we’re dealing with first hand. 

While Gregory Chase may want (desperately) to keep his dirty laundry private, it’s not my job to cover his butt.  And so you know, this is the kindest version of his peculiar view of life, which I’m including so readers can “consider” his point of view.  Some of his earlier emails were truly wacky.  He’s now had his chance to make his case, since I have no intention of spending the rest of my life debating his vision of what he is and isn’t allowed to do.  If this isn’t enough for him, maybe I’ll post the rest of his emails.  It appears that this disclosure of what he’s doing has really got him burning, and I would expect him to do anything possible to fight it.

Maybe he’ll sue me for “slander”, and then we can find out just who this fellow is and how many blawgs have been the victims of his conduct.  Then we’ll have a nice chat about copyright and trademark infringement, and he’ll find out how the world of litigators works.  As far as I’m concerned, he’s just another leech, albeit a particularly stupid and self-serving one.  He will no doubt be pissed with me, but he would do better to reserve his cranium space for the interesting wire fraud issues raised by his conduct.  As clueless as he might be, he’s engaged in some very bad stuff.  I think it needs to stop.

If, by the way, you don’t mind that he’s stealing your content and posting it on his website, then that’s fine.  But for those who do mind that he’s taking it, using it on his for-profit website, without permission, you should know that it’s happening.   And it might well be worth our while to make sure that everyone in the blawgosphere is aware of what USLaw is doing, so feel free to spread the word.

And the funny thing is that he still has Simple Justice up at his website, and based upon his email to me, he thinks he’s doing me a favor.  He really does.
_____________

Subject: Re: Your house, your rules – De-escalation
From: [email protected]
To: [email protected]

Your blog post caught me in a raw mood last evening which was made even more raw when you removed and blocked my comments from your blog this morning.  After a day of blowing off some steam with a few short comments, in the spirit of resolving the confusion and addressing your concerns, please digest the following when time allows.  In return, I ask that you thoughtfully consider retracting the accusations and name calling that could easily spiral out of control.

As Simple Justice is so popular and you have so many sites linking to you, it must have slipped your recollection that back in January, 2008 we exchanged a few emails in which you acknowledged having your blog indexed by USLaw.com.  Please let me know if you have changed your position.  Please also understand that I do not believe USLaw.com’s Blog Directory, Index, and Blog Reader make use of publicly available RSS feeds in a way that absolutely requires any more or less permission than sought by other internet companies including companies like Google and Yahoo.  Although you granted permission, from your recent reaction it seems as though you are not happy to have your syndication feed available to thid party blog readers.  If that is the case, I’m sure you aware of ways to modify what content is mnade available in your such feeds.

 

As for my blog comments which I prefer to associate with the USLaw.com name, I’m sure you appreciate there are several legitimate reasons many people prefer to be published by pseudonum (in books, onlne, etc.).  USLaw.com is currently a relatively modest operation which I prefer not to dominate my professional associations outside of the legal industry.  In addition, assistants occassionally respond to emails from a common account.

 

As for my interest in keeping our private dialog private, I have had bad experiences with disclosing phone numbers in co-ordination with producing a website to someone whose intentions are not clear to me.  There are so many inconsiderate and misintentioned people in the web/blog publishing business– I’m sure you’ve had to deal with quite a few yourself– that I consider it “best practices” to keep web business discussions through email and remain cautious with additional contact information until I more fully who I am dealing with.  Further, I believe private correspondence should not be shared publicly without the consent of the parties involved.  As many bloggers do not share that sentiment, I prefer to determine a potential correspondent’s feeling about that principle before investing too much time in a dialog.

 

Below, please find the email we shared last January which I took the time to retrieve from an archive (best if read chronologically from bottom to top).  I hope that you will use this information to set the record straight on your blog post.

 

Thank you,

Gregory Chase

I’ve just returned from three days in Chicago at SuperConference, a gathering of in-house counsel from corporations across the nation.  No, they aren’t like us. 

Dan Hull at What About Client? was kind enough to think of me when he was asked to put together a panel of lawyers to speak on the subject of Gen Y lawyers, and Sheila Brennan, the brains and brawn behind SuperConference, was kind enough to ask me to come. Sheila was a sweetheart, and anyone who throws a conference without Sheila at the helm is a fool.  Having gone to many a conference of criminal defense lawyers, but nary one of our brethren whose life is spent behind desks rather than in the well, it was a fascinating experience.

First, contrary to popular belief, they don’t wear Grateful Dead t-shirts when they are amongst their own.  They may let their hair down, but it doesn’t have a long way to fall.  These are guys who show up in a pin-striped suit when no one makes them.  They like to.  It’s them. Hull told me about this in advance, so I wore the uniform too. 

It was an abundantly friendly crowd, and they were happy to meet anyone, even a criminal defense lawyer.  The first question out of every mouth was, “Who are you with?”  This is a question one never gets at criminal lawyer conferences, but the basis for everything that follows amongst in-house lawyers as well as the outside counsel who came to lobby.  Everybody is with “somebody”.  The idea that you weren’t with “somebody” was as foreign as, well, not wearing a pinstripe suit.  It just wasn’t done.

The in-house guys were not merely friendly, but exceptionally smart and savvy within the confines of their niche. Unlike trench lawyers, they were inclined to be agreeable, to follow instructions and to be on time and prepared.  It was strange to see a room full of lawyers and no one screaming at anyone else.  It was nearly impossible to find alone in disagreement about anything.  They knew what their job was, where their interests lie, and who buttered their bread.

As I met GC after GC, and after we got past the obligatory “who are you with,” and I explained what my day job was, there was the quizzical “so why are you here?” look.  I followed Hull’s lead, as he works a room like nobody’s business.  When I talked about white collar work, and how it related to their world, there was a disconnected interest, as if they heard about how corporate executives were subject to compliance, regulatory violations, fraud and the occasional prosecution, but it has no real meaning in their world. 

It was brutally clear how and why so many executives, particularly those who turn to their pals in the general counsel’s office, get themselves into a jam.  They just can’t conceive of how their world connects to ours.  They are good, clean-living, corporate types.  They would never engage in conduct worthy of moral reprobation.  Never. And if it did, the overwhelming sense was that there was nothing one could do about it.  Their remarkable savvy when it came to structuring their transactional work evaporated entirely.  It gave me a great idea for a topic for next year’s conference, as these guys and gals had an awful lot to learn about how to keep their executives, and themselves, out of trouble.  They just don’t believe they have the capacity to get into trouble, or once trouble finds them, any way to get out.

The biggest ongoing controversy at SuperConference was billing, whether the billable hour was dead and whether flat fee billing was the future.  Everyone claim to love it.  Everyone claimed that the world was changing.  Nobody could explain why it was all talk and no action.  As David Boies said in a keynote address, businesses look for the best way to do things while lawyers look to the way it was always done.  If there was any moving force amongst the GCs, it was inertia. 

Hanging with my new friends kept me up and out way to late, and away from the news and caselaw that finds its way into the pages of Simple Justice, which is why there were no posts yesterday.  I’m still trying to recover today.  It was exhausting to be nice to so many people for so long.

Beyond the high point of getting to hang out with Dan Hull was meeting Ed of Blawg Review.  A great guy who bears a faint resemblance to Chuck Norris (and that’s as much as I’ll tell), I was almost persuaded to give Blawg Review another try.  Almost.  Whether I will be invited to speak at SuperConference again has yet to be seen.  There are a few topics that connect our world with theirs, and information which these guys desperately need.  But I did learn one thing which I will carry with me should I be asked to attend again:  Don’t let them suck you into late night dinner and drinking if you’re not used to it. 

I’ll be back to normal soon, for better or worse, and plan to clean up the mess around here and catch up on the real world. 

Judge Alex Kozinski makes the point in the Cato Institute’s book, In the Name of Justice, that we’re all likely criminals these days, despite the moral reprobation the ones who haven’t yet been caught feel toward the ones who have.  But are we all sex offenders?

From the York Daily Record via Turley, Grandma Donna Dull took some pics of her 3 year old granddaughter to Walmart for development.  The kid was nude.  Grandma was arrested for kiddie porn, and spent the next 15 months fighting the charge until it was dismissed. 

Christopher Moore, a special prosecutor in the York County District Attorney’s Office, is after “perverts, not parents.”

Moore was commenting on the “gray area” between the typical family picture of the 2-year-old getting a bath in the kitchen sink and a picture a pedophile may enjoy.

It can be the same picture, Moore said.

That’s a problem, guys, except Moore says that they’re looking for pervs, not parents.  And grandmas don’t qualify?

[District Attorney Stan] Rebert said in Dull’s case, “What made them offensive was their graphic nature. A little girl with her bare butt showing, kind of looking over her shoulder.

“It’s a difficult distinction to make. What’s a cute butt and what’s pornographic?

“I think what she (Dull) did was stupid and in very poor judgment. It was an interesting case and I think we did the right thing.”

Well that explains it.  The difference between a perv and a parent is whatever Stan Rebert decides it is 15 months later.  Not much help in forecasting the consequences of one’s conduct, but a bright line test as long as Stan Rebert is around.

This gives me pause.  You see, I too have a photograph of my daughter in the bathtub when she was an infant.  She’s absolutely adorable.  She’s also quite naked.  There are cute parts of her anatomy showing, though I would never have called them graphic or offensive.  I supposed if one was of the mind to find sexual titillation in a child, it might do.  It never dawned on us that this was even a concern.

Clearly, Rebert hasn’t got a clue how anyone is to distinguish the good from the bad, the keepsake from the evil.  And if he doesn’t know, how should we?  Should we ask him first?  Do we get advanced permission?

Or are we stupid and show “very poor judgment” when we engage in the time-honored tradition of a photograph of our child, whether bear rug or bath, or just being awfully darned cute, if they aren’t fully attired?  Is it really our duty to conduct our family affairs in accordance with prosecutorial sensibilities?

One would think that after the call from Walmart to the cops, demonstrating why the caller was working at Walmart rather than NASA, it would have taken a prosecutor all of 30 second to distinguish grandma from a perv.  One would be wrong.

I can’t decide whether to hide my photo or barricade the doors.  Either way, I don’t want to end up like Donna Dull, but don’t want to give away that memory of my daughter.  I guess we can amend Judge Kozinski’s admonition to cover sex offender for some.  Maybe he knows something about that too?

With Sonia Sotomayor as the leading candidate for Justice David Souter’s chair on the Supremes (which, I note, is almost always the kiss of death), the knives are coming out.  Jeffrey Rosen in The New Republic is the messenger of deep Second Circuit secrets.

After reporting that many praised Judge Sotomayor, Rosen writes:

Over the past few weeks, I’ve been talking to a range of people who have worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York. Most are Democrats and all of them want President Obama to appoint a judicial star of the highest intellectual caliber who has the potential to change the direction of the court. Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her. They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.

The most consistent concern was that Sotomayor, although an able lawyer, was “not that smart and kind of a bully on the bench,” as one former Second Circuit clerk for another judge put it. “She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren’t penetrating and don’t get to the heart of the issue.” (During one argument, an elderly judicial colleague is said to have leaned over and said, “Will you please stop talking and let them talk?”)

So the complaining comes from (a) anonymous (b) law clerks for (c) other circuit judges or (d) former assistants?  While it’s impossible to know whether Rosen is talking about three or three hundred, and the value of anything they have to say is obviously undercut by their cowardice in refusing to put their name to their claim, there is one thing that comes out of this nonetheless.  The failure to meet the intellectual expectations of a clerk suggests that maybe, just maybe, the judge gets it and the clerk is a pompous, pseudo-intellectual elitist? 

Who exactly are these young men and women to offer opinions on Judge Sotomayor’s general intellectual prowess?  No doubt they see themselves as brilliant, as every circuit clerk does, and far better able to comprehend than the doddering old fools in robes for whom they work.  Do we all share their high opinion of themselves, such that they are entitled to question the intellect of a circuit judge?  Even if accurate, does this reflect what we, as opposed to they, find important in a Supreme Court Justice?  I sense that we might not all share the same vision of critical attributes that the Scions of Eli hold dear.  I bet some of us would happily trade some pragmatism for intellect any day, not that I’m suggesting that would be the case.  And we certainly know that the current writing on the court leaves much to be desired.

I have no clue whether Rosen’s assessment bears any relation to reality, or is just an example of the attacks starting.  But Gerard Magliocca, who clerked for Judge Sotomayor, has taken up arms in her defense over at Concurring Opinions.  With my starting point being that law clerks are not the measure of a good judge, coupled with anonymity so there is no price for their comments, and given Magliocca’s measured response, Rosen’s piece strikes me as mere inflammatory fodder.  It may be right, but I’m not buying based on that.

Unless and until the anonymous complainers care to come forward and take the heat for their thoughts, I’m sticking with Magliocca and what I know of the Judge. 

The other day, David Giacalone, formerly of f/k/a, asked me a very good question.  Does a website called USLaw have my permission to , both in abstracts as well as in their entirety?  Curious, I took a look, and just as David said, there were my posts, published in full.  So I wondered too why the fine folks at USLaw felt entitled.

I searched to find out who the fine folks at USLaw might be reached.  There was one of those email forms, that someone can fill in their blanks to send them a communique, but without an email address to do so on one’s own terms.  Well that wasn’t what I was looking for, so my search continued.

No telephone number.  No identity of the owner of the website. No nothing.  I asked David if he could do some digging for me, and he went to the source,   After checking “Whois” and coming up with only the host, David went to the “Aboutus” website and thought he hit paydirt.  There was a telephone number.  He let me know.

I called the telephone number for USLaw.com.  A message.  It was disconnected.  Nor was there a listing for USLaw anywhere to be found.

After sending the fine folks at USLaw an email, using their form, inquiring why they were under the belief that they could take my copyrighted original content and use it in full on their commercial website, I awaited a response.  I’m still waiting.

The part I find most peculiar is that they have an image of Simple Justice on their website, with the USLaw logo superimposed on it to suggest that I am somehow a part of the US Law family.  The same is true for Mark Bennett’s , which I guess makes us brothers of different mothers (leaving me naturally to be the runt of the litter).

So who are these fine folks who are of the view that they are entitled to capture my content, and I would imagine the content of every other blawg in creation, and sell it others so that they can enjoy a profitable commercial blog?  It’s not that I have anything against a profitable commercial venture.  I’m no commie.  But there is a small issue of their enjoyment of the fruits of my labors, and yours as well, to discuss.

Inquiring minds want to know.  I want to know.

Update:  While no word from USLaw.com about what they’re up to, WindyPundit has questioned why it bothers me that this sort of stuff happened.

I’m a bit mystified by Scott’s reaction. It’s not like USLaw.com is scraping the content off his website. Scott publishes full feeds for Simple Justice—in RSS and Atom, both also advertised as related content in the HTML header—and USLaw.com has picked them up. This is how content syndication works.

I’m not sure if U.S. law recognizes a syndication link as granting a license, but it’s common usage in the blogosphere. If Scott doesn’t want other people publishing the full articles, he probably shouldn’t be offering the full articles in the feed.

Since Windy’s not a lawyer, the points has nothing to do with his lack of understanding of fair use and copyright, and more to do with an appreciation of stealing, a fairly universal notion.  The fact that it’s easy to steal online, via an RSS feed, doesn’t change the fact that stealing is still wrong.  I’m surprised that Windy doesn’t recognize that distinction, but I suspect that it has more to do with the fact that he doesn’t see his original content having value, so taking something valueless isn’t much of a problem.  I think Windy is mistaken, that his content has value and if it didn’t, no one would bother taking it.

To the extent Windy has issues, they are geek issues.  He’s miffed that he’s not in their directory, and that he doesn’t get SEO benefit because of the “no follow” code they use.  But he’s got no problem that a commercial enterprise would take the fruits of his labor and use them to make money without his permission and without his participation.  To each his own, I guess.  But as I explained in the comment to Windy’s post, the fact that it’s okay with him doesn’t mean that stealing should be fine with me. 

And to the geeky point, stealing online is easy.  Stealing online is still stealing.  Easy doesn’t make it right. 

From the remarkable efforts of Packratt with his Injustice in Seattle twitterfeed of police misconduct and abuse comes this story a drunk driver who crashed into a carload of kids coming from church.  A murder case?  Hardly.  The defendant was a former New York City cop.

A jury convicted former NYPD officer Santos Tirado of drunk driving and possession of an unlicensed handgun, with illegal bullets.  After the verdict, the judge decided otherwise.

However, the Hackensack Superior Court judge, in a separate set of rulings on lesser police summonses, said he did not think there was enough evidence to say Santos Tirado, of Monroe, N.Y., was intoxicated. A conviction on that charge would have entailed additional penalties.

The watery eyes and slurred speech reported by Fair Lawn police the night of the Oct., 26, 2007, accident could also have been caused by a head injury, Judge Eugene H. Austin said in court.

“I’ve struggled with this case since we finished and got the jury verdict,” Austin said. “I have gone over it and over it and over it in my mind. It’s a very difficult decision to make under all the circumstances.”

It’s heartwarming to hear that the judge struggled.  They should all struggle.  And struggle some more.  Yet at the end of their struggle, judges invariably go with the verdict of the jury.  Judges invariably accept the testimony of their local police officers, one after another taking the stand to testify that the cop:

The Fair Lawn officers, several of whom testified in court, said Tirado smelled of alcohol and had an empty Coors Light can in his car.

They said he was belligerent when they attempted to arrest him for carrying the handgun without a permit required in New Jersey. He also asked them to give him special treatment because he was a fellow officer, they said.

Tirado refused to take blood and breath tests to measure his blood-alcohol level after the accident.

[Side note:  Notice how cops always refuse the test?  Does that tell you anything?]  So what part of smelling like alcohol comes from a head injury?  And what are the chances that Fair Lawn cops would pick a brother in blue to be the dupe in some testilying conspiracy?  If anything, this is a case where the Fair Law cops have performed their duty with the highest integrity, despite the expectation of protecting their own from harsh consequences.  And for this, they are smacked in the face by the judge.

No doubt, the five former and active New York City cops from Tirado’s former precinct, the 30th (strike a bell to anyone, as in “Dirty 30?”) had some influence.  Judge Austin’s choice, to eschew the testimony of the Fair Lawn cops over the influence of their character testimony, is quite amazing.  What it means to be “legendary” in the 30th is certainly suspect, and even beloved cops get drunk.  Rather than being mutually exclusive, some might say they go hand in hand.

The judge’s rationale may well be valid, for all I know.  But would he have done the same for anyone other than a cop?  If so, then there should never be another conviction in that courtroom for drunk driving so long as they don’t blow the test.  I wouldn’t test the theory, however, unless you’re a cop.

Via Skelly at Arbitrary & Capricious, there are few defendant-gone-wild stories to match this one from the Pittsburgh Post-Gazette:

Timothy Lee Williams’ lawyer, Frank C. Walker II, stood next to him, powerless.

He had advised Mr. Williams not to testify, but his client didn’t listen.

“All I really wanted to do was express myself,” the defendant began, launching into an incoherent diatribe about his life and the circumstances surrounding a Hill District homicide.

His testimony Tuesday — during which Mr. Williams, 40, admitted to the killing and revealed that he was a “swinger” with 17 girlfriends — sealed his first-degree murder conviction.

The story chalks this up to the “uncooperative client,” the client who doesn’t “heed” his lawyer’s advice.  While that’s certainly a problem, and a phenomenon, that happens with remarkable frequency, I doubt it was the case here.  The client simply had a very different agenda than the lawyer, whose sole focus was defending his client against the murder charge.  We lawyers assume that the clients want what we want. 

The problem here wasn’t that Timothy Lee Williams thought he was smarter than his lawyer, or that he would be more effective in his defense than his lawyer.  The problem is that he wanted to tell his story.  He had a room full of people who were there solely for him, rapt with every minute detail of his actions.  He was the center of attention.  He was the star.  How many times before in his life had anyone cared a whit about anything he had to say?  Now, that’s all they cared about.

One right that can cause conflict between lawyer and client is the right to testify. Many defendants — especially ones who have stewed in jail for a long time — want a chance to tell their side of the story. But from a legal perspective, it often does more harm than good.

“Very few defendants who take the stand actually help themselves,” said Sumner Parker, who has worked in the Allegheny County public defender’s office for 22 years.

Lawyers know that.  Defendants, for the most part, know that as well.  But a superficial analysis as reflected by this story neglects to consider the psychological makeup of a defendant, and the forces that drive someone to implode.  Does anyone really think that the defendant didn’t realize that admitting to the murder would be detrimental to the cause of acquittal?  But that wasn’t really his game; he wanted to be heard.

“The lawyers have a great deal of experience trying cases. For the defendant, this is one of the few times they will ever be in a courtroom. [But] they think they have the answers.”

The answers often come from “jailhouse lawyers” — fellow inmates who advise on legal matters but don’t have the training — or family members, rather than a defendant’s attorney.

Certainly, jailhouse lawyers and overly helpful relatives present roadblocks in presenting an effective defense.  They tend toward magic bullet solutions, unrealistic and ineffective.  Often, following their advice will doom a defense, even when there’s a great defense available.  But that’s a case management issue for a criminal defense lawyer, and one which any good lawyer should be capable of handling, particularly given its frequency.  But handling crazy collateral advice wouldn’t change Williams’ testimony.

The contradictory advice comes most often when an attorney is a public defender or court-appointed.

“[Defendants] view the system as being all against them and a lawyer — defense or prosecution — is part of the system,” said John Elash, who has been court-appointed to represent numerous indigent criminal defendants.

“They don’t view you as somebody who’s on their side. They view you as somebody who’s part of this big machine who is oppressing them.”

Somewhat true, though a bit on the martyrdom side of rationalizations.  While many defendants sneer at public defenders, viewing them as the booby-prize of indigency, second-stringers in a second-tier profession, there’s no reason why the good ones (meaning of course that there are indeed some lousy ones as well) can’t handle their clients’ fears and dread as would any other lawyer.  Neither retained nor assigned lawyers get a free ride on client trust and respect.  We all have to earn it.

The fact remains that sometimes a defendant primary goal in the midst of trial isn’t to defend himself, isn’t to win.  It’s to seize the moment, to enjoy the one thing that hes never had in his life and will never have again.  People who will listen.  For these defendant, a stately room filled with a dozen citizens, a black robed God-like figure sitting high on a bench, plus some others, who listen with rapt attention to his every word for as long as he cares to speak, is the high point of their lives. 

Much of crime is a grab for attention.  It’s the assertion of power over others by might.  It’s a demonstration of control.  The reason someone engages in anti-social behaviors like this is that they have never had any control or power over others, and perhaps not even over themselves, and so seize it the only way they can.  It’s certainly a sociopathic reaction, and it’s intolerable in society.  But it happens with some frequency. 

If you compare the need for attention as manifested in a criminal act with the opportunity presented to a defendant in a criminal court room, the former doesn’t hold a candle to the latter.  It’s the ultimate pulpit for a defendant to spread his brilliance, vindicate his self-worth, express his every thought.  Yes, it’s crazy, but people are presumed innocent, not sane.  Or at least not legally insane.

Timothy Lee Williams had his day in court.  He chose to spend it by telling the gathered throng his views on life.  He was convicted of first-degree murder.  I hope it was as satisfying for Williams as he hoped, as the price of his day in the sun will be very high.

A couple of days ago, I fell into a trap.  I posed that Sonia Sotomayor should replace Justice David Souter on the Supreme Court.  While I maintain that she would be a fine appointment, Norm Pattis has opened my eyes to an ugly bias that found its way into my thinking, and disabused me of my error.

The current court is composed entirely of former federal appeals court judges. All but one got their professional tickets punched at two of the nation’s premiere status factories: Harvard and Yale. Three of the current justices have never even worked in private practices. As lawyers go, the current justices are glittering gems. It is an elite group, long since detached from the world the vast majority of folks inhabit.

When he looks for someone with real world experience on the Court he turns to David Souter. Why Souter was a trial judge and an attorney general of the State of New Hampshire. “No other justice has either sort of experience,”  [Adam Liptak] writes.

Norm is right.  We have so elevated the position of Supreme Court Justice that it has become inconceivable that anyone could be worthy of the seat without experience on the federal bench, preferably a big circuit one, or the intellectual prowess of the Academy, or the “practical” experience of holding high office, with the blind assumption that a few years serving the government constitutes real experience. 

There’s a reason for this, as past experience with Supreme Court appointments, not the least of which was Justice Souter who obviously didn’t turn out the way Bush the Elder expected, is that these are people with clearly discernible track records.  Whether it’s the written opinion, the law review article or the executive policy making, we know what we’re buying.  No pigs in a poke here. 

Of course, that means the breadth of experience on the Supreme Court will run the full gamut of judge to lawprof to prosecutor, at best.  As Norm points out:

When President Obama opposed John Roberts’ appointment to the Supreme Court, he said “adherence to precedent and rules of construction will only get you thought the 25th mile of the marathon.” What concerns the president is the view during the last mile, a view that takes account of “the broader perspective on how the world works.”

Where could we possibly find someone capable of running that last mile?  The answer is clear:

A trial lawyer knows about raw human need and the law’s rough edges. It is a trial lawyer’s job to find the intersection of terror, fear and tears with the high doctrine and principle of the law. Not one member of the current court has ever sat with a client and his family during jury deliberations to discuss what will become of a family should the client be sent to prison. Not one of these legal scholars have ever told a person that the law’s reach will not embrace the harm they have endured. I cannot fathom Scalia counseling a client about sovereign immunity.

In the trenches, we experience life, along with the huddled masses who care far less about whether a judge is a constructionist or originalist or texturalist.  We know the consequences of decisions, together with the consequences of delayed decisions.  Our view is ground level, and our understanding of how badly the law can hurt comes from holding the hands of the maimed.  We know that people lie, cheat and steal, but we know that isn’t limited to the defendants.  We have philosophies, but we live realities.

The bar’s elite will shudder at the thought of an uncouth lawyer sitting atop justice’s pyramid. But the shuddering really reflects the conceit of those who view the law as little more than a pyramid scheme. The law is not science. There is no Platonic elite governing eternal truths exposed briefly to view in qoutidian conflicts. The law is simple: It is civilized society’s way of brokering peace in the face of conflicts rubbed raw by human need. A man dies, and another is accused of the killing; a mother cannot afford the rent for her home, and her landlord presses her; a child’s parents do not provide the care a state official thinks necessary and now hearts are torn assunder. This is the world most Americans inhabit. We do not command corporations, run large agencies, stride the corridors of power as lawmakers or judges. When we awaken in the morning, we hope, and the law is what we turn to when the hopes of conflicting parties threaten to turn into despair.

Isn’t this what President Obama says he is looking for in the next Supreme Court Justice?  We have a court comprised of doctrinal elitists, who render opinions that reflect what they believe to be real in a world they’ve never actually touched or experienced.  What if there was a justice sitting on that Court who had actually looked into the eyes of the mother denied her child, or had to explain why a young man would spend years in prison awaiting the 3% chance of reversal, if only someone would risk the possibility that his less than perfect trial could have ended wrongly.

The Times reports that Mr. Obama wants a judge who “understands that justice isn’t about some abstract legal theory or footnote in a casebook…. It is also about how our laws affect the daily realities of people’s lives.” Hence the first question of any potential nominee: “When is the last time you appeared in a courtroom to represent a person making less than the median income of the United States?” No one on the short list of names being tossed about can answer that question with anything other than silence.

With this begins a Movement.  I call it the Trench Lawyer Movement, born of Norm’s rejection of the status quo of Justices isolated from the people, ignorant of the problems and blinded by their theoretical or elitist notions of how the real world is. 

Consider, if a mere one of nine was to be a trench lawyer, without the trappings of great wealth, power or importance, how terrible would be the disruption in the halls of power if there was a lone voice to speak for the hundreds of millions of Americans about whom the others speculate and theorize?  Shouldn’t every person who sits in judgment of another have had the experience of holding the hand of a living, breathing person, and seeing the real world consequences of his or her decisions?

Norm Pattis has persuaded me that my bias was shortsighted and wrongheaded.  We don’t need another appellate judge, or law professor, or high office holder, or prosecutor on the Supreme Court.  We already have those voices.  We need the voice of a trench lawyer.

Are you with us?