Whenever a high profile case hits the airwaves, as it did yesterday with Bernie Madoff’s sentencing, the news outlets trot out purported “experts” to fill the time. I spent a few minutes watching shortly after sentence was imposed, and was, well, underwhelmed. At first, I thought that the “experts” just had little to offer; they were not illuminating, interesting, or controversial. Heck, they weren’t even informative.
But after some reflection, I realized that the experts weren’t at fault. It was the interviewers, primarily the anchors who were reading their parts as they are so well-qualified to do. The problem was that the question, usually a long, often meandering query with numerous predicate phrases that veered without segue into a statement of the flagrantly obvious, concluded with the query, “so what do was Judge Chin thinking?”
Of course, we have no clue what Judge Chin was thinking. We only know what he was saying, but it really didn’t matter at that point since the anchor already stated the obvious and left little to do but agree with the anchor’s brilliance. “Oh yes, you are so right; that’s exactly what happened.” And we need to hear this from an expert?
The shame is that there was much to discuss following sentence, as there tends to be following any sort of legal action. It’s just that no one wants to let it happen. So why bother to get an expert? Window dressing; it makes the report appear legitimate and knowledgeable, and gives the viewer the comfort of believing that he too, now, has an expert understanding of events and the law.
The reason for doing this is multifold. First, TV people are scared to death that if you put someone in front of the camera and leave them to their own devices, they will blow it big time. Either they will freeze, and stare at the camera like a deer in the headlights, or they will fumble and mumble and make no sense at all, undermining the erudition of the news program itself. Worse still, they are afraid the expert will start talking like a lawyer and bore the living crap out of the audience or, worst of all, use multisyllabic words that will make viewers change to the Fox News Network. Trust me, they despise any word with more than two syllables, and greatly prefer words with just one.
The upshot is that the expert may well be an expert, and have great things to say about the subject at hand. You would just never know from the manner of the interview, which is designed to control the expert, aggrandize the anchor (hey, it is their show, ya know), and not piss off the viewers. The talking heads are just window dressing, there to provide the imprimatur of credibility to statements so painfully obvious that they have already occurred to every viewer watching. Viewers love confirmation bias, of course, which reminds them why they love watching the news, where it is proven that they know as much as everyone else about everything that matters.
In contrast, the blawgosphere has a few people who are willing to go out on a limb, actually offer some insight or an opinion, stare controversy in the eye and speak their mind. It also has plenty of stiff shirts who offer nothing worthwhile, for fear that they would be viewed as too strident or undignified. Maybe they are afraid that if they actually do something to illuminate the issues in a case, they won’t be asked to do a gig on TV as a talking head.
Monthly Archives: June 2009
The Madoff Show Is Over. Who Won? (Update)
So Judge Denny Chin sentenced Bernie Madoff to 150 years. That’s along the lines of one and half lifetimes, assuming you start at birth. It was three times the recommendation of the Probation Department, which suggested a mere 50 years, still rather steep for any 71 year old short of Methuselah.
Obviously, the interests that took precedence were general deterrence and retribution. It makes sense, in a strange sort of way, that the judge would sentence the defendant to 150 years rather than 50, since both will result in Madoff’s death in prison, but the longer sentence packs a far greater punch as far as the media, and deterrence, are concerned. Plus, it has the added benefit of satisfying the understandable lust for retribution for the victims.
Yet, there are some deeper institutional issues at stake that flew over the heads of most of TV commentators. Will this really serve as a deterrence, going as far over the top as it did? What impact will this have on future guilty pleas? Who wants Ike Sorkin to be their lawyer?
Judge Chin said that Madoff’s crimes were “extraordinarily evil.” That may be true, but it doesn’t do much to quantify a sentence. We hear judges say things like that with some frequency, but it’s an ever-moving bar so that it doesn’t do much to explain whether a fraudster will be just fine if he only steals, say, $50 million from 10 people or $1 billion from 5 people.
Judge Chin also noted that not a single letter was submitted in support of Madoff. What were the chances that anyone in this country wanted to be named as a friend of Bernie? Come on. That’s just silly, not to mention a decision by Sorkin to avoid pursuing that line at sentence. I’m sure the judge knew that, but he was using what he had available.
Throughout the course of the Madoff defense, I’ve questioned what the heck the defense was thinking. Like most people, I would have guessed that Ike Sorkin had something up his sleeve that he would pull out at the moment it was needed. As it turns out, Sorkin came up empty. Totally, completely, utterly empty. His client copped to everything, got the max and will be remembered as one of nation’s worst scoundrels.
To the extent that there is any lesson to be learned from the Madoff case, it’s all negative. If someone’s about to rat you out for scamming a few billion, you might as well murder them since they can’t give you life plus cancer. And if you get caught, you might as well fight with everything you’ve got, as hard as you can, no matter what, as you won’t get the slightest consideration for doing the right thing. And while the going is good, hide as much cash as you can where the government won’t find it so you can afford a lawyer with a better strategy than Sorkin.
What are they gonna do? Give you life plus cancer?
I wonder if Judge Chin thought about that when he came up with 150 years.
Update: I’ve read a number of posts reflecting the thoughts of lawprofs on the significance and virtue of the Madoff sentence. Without naming names, or linking links, I need to add one bit to this post: I have yet to see one lawprof post that demonstrates any depth of comprehension of how things work in real-life courtrooms. One couldn’t fathom why Chin didn’t go along with the probation department’s recommendation, “because they’re the professionals.” I swear to God, that’s what she wrote. Another sees the sentence as a ceiling problem (as if all other defendants can somehow age themselves out of their sentence) while others don’t think it’s going to have any impact on how future white collar defendants will perceive the system. You gotta be kidding. Who will take a plea after this?
People, get out of the classrooms and books and stick your heads into a courtroom once in a while. Not just when it’s a high profile case, but a real case with real people and no TV cameras. There’s a whole wide world of law happening out there, and it’s passing you by.
“A Strong Basis In Evidence” of What?
When it comes to criminal law, the question to be answered is what would a reasonable Scalia think? After the Supreme Court’s 5-4 decision in Ricci v. DeStefano, the answer isn’t so clear under Title VII. Did the Court just tacitly overrule Griggs v. Duke Power, or did they just set up an impossible standard for employers?
For those unfamiliar with discrimination law, here’s the dilemma. There are two ways in which an employer can engage in discriminatory hiring practices, disparate treatment and disparate impact. The former is affirmatively treating employees of protected classes differently, while the latter is using a facially neutral approach which has the unintended result of affecting a suspect class differently. Following Griggs, both were equally forbidden by Title VII.
The problem arose from the fact that, in an effort to avoid discrimination by disparate impact, an employer would necessarily have to make race (for example) a consideration, which would implicate disparate treatment. Until yesterday, this was permissible when it was done to remedy disparate impact.
By 5-4 (yes, another 5-4 decision), the Supremes decided to take a reasonably clear remedy and muddy it all up. Now, an employer faced with apparent disparate impact is liable for discrimination for attempting to remedy it unless there is “a strong basis in evidence.” What that means is anybody’s guess, but you can bet on one thing: An employer won’t know for sure until after it’s been sued and a decision has been reached. In other words, the answer will only be known after an employer has been sued. Great solution. Can you imagine an employer coming into court saying, “but my lawyer said so?” The courtroom will burst with uproarious laughter.
The Ricci case has been used as the touchstone for Sonia Sotomayor’s competence to be a Supreme. Her qualifications aside, this was pure propaganda, and the reversal by the Supremes (did I mention it was 5-4?) proves absolutely nothing either way. Aside from the fact that Sotomayor was one of three unanimous judges on the panel, and that the ruling was a basic deference decision given the district court’s lengthy opinion, the Supremes didn’t reject the 2d Circuit’s reasoning but changed the rules of the game. They rejected their own decision in Griggs. The Supreme can do that. The Circuit cannot.
In an article for Forbes that proves that the keyboard is faster than the sword, Walter Olson recognizes that this is a “sued if you do, sued if you don’t” scenario. While Walter’s view is clearly against reverse discrimination, it really doesn’t matter which side of the decision matches your politics. The fact is that employers, if nothing else, need to know what is demanded of them in order to avoid violating Title VII. Walter calls the Court’s decision a “middle ground.” As any soldier will tell you, when you’re in the midst of battle, the one place you don’t want to get caught is in the middle ground. That’s where both sides are shooting at you.
The problem is that after Sotomayor has been confirmed for the Court, as we all know she will be, the Ricci decision will remain behind to haunt us. In dissent, Justice Ginsburg offered this admonition: “The court’s order and opinion, I anticipate, will not have staying power.” I have no doubt she’s right, since this decision is wholly unworkable, leaving employers screwed no matter what they do, no matter how hard they try to comply with Title VII.
This is a Catch-22, with an answer coming only after the harm to all parties has been done. Of course, how many decades it will take before some future Supreme Court disavows this foolishness has yet to be seen, but regardless of which side you are on in the reverse discrimination debate, there’s no doubt that you will come to hate this decision and demand that the Court clean up yet another mess made in the heat of political warfare.
Remember, “Shouting Fire” tonight on HBO
Just a reminder that Liz Garbus’ Shouting Fire: Stories from the Edge of Free Speech will be on tonight on HBO at 9 p.m. Watch it.
Three Answers to Nastiness
At Ex Forencis, Larry Daniels is working out the anonymity issue. Not because of the lack of credibility problem, but because they are mean. Larry, you should know, is a southern gentleman, as well as a guy who puts his name to his opinions, for better or worse. He wouldn’t post something online that he wouldn’t say to your face. Others do not adhere to Larry’s code of honor.
Is the internet making people meaner? Or is it just giving people a chance to be mean without consequences, allowing them to channel their inner monsters in a fast and convenient way?
If you read the comments that follow many news stories on web sites for television stations and other news outlets, it is frightening to see what people post about people accused of crimes, local politicians, celebrities, and anyone else who happens to raise their ire. Veiled threats, accusations about the personal lives of the person in the news, hate speech, it’s all there.
While I value free speech as much as anybody, it is funny that exercising that free speech is so much easier when you can remain hidden behind your keyboard. I don’t think people would be so quick to say some of the things they do about a person if they were within nose-punching distance of their target.
Notably, Larry hasn’t tried to work this nastiness into any side agenda in order to claim that it’s sexist or ageist or lookist, or any other “ist”. It’s just plain nasty.
While the courts go to great lengths to protect the first amendment right of anonymous speech, it is not absolute as courts are now beginning to tackle serving anonymous defendants in internet harassment and defamation cases.
States have passed or are considering passing cyberbullying laws and other protections for people who are the subject of on-line threats, defamation and harassment.
Is this the answer? It’s one of three potential solutions. Another option is to do nothing, which apparently isn’t sufficiently satisfying to those who are wounded by the harsh words of their detractors. And then there’s a third:
Sticks and stone…Remember when someone called you a name as a child, and you ran home to Mommy to seek comfort and retribution? What did Mom tell you? That’s right. Sticks and stones, baby. Sticks and stones. Anyone who has spent any time online knows that the cyberworld is filled with otherwise perfectly nice people who are disinhibited by anonymity and self-importance, allowing them to vent their worst self to compensate for their particularly small genitalia. So what?
These aren’t special people. They are the same people we meet, speak with, shake hands and give money to every day of our lives. We just don’t know if because we see the actual person rather than read his or her ugliest thoughts.
When I finished college, I put on a backpack and took to the road. Eventually, I ended up in Germany, which was a very fun place for a young man. But this was a long time ago, and every time I looked into the face of a 60 year old man, I thought to myself, “what were you doing in 1943?” It disturbed me greatly. World War II hadn’t been over long enough for the horror to wear off yet, and I found it impossible to divorce myself from the idea that anyone of these people could have been shooting at my father or murdering my distant relatives.
But I couldn’t see what was inside their heads. And I couldn’t blame them blindly for what they might, or might not, have done. So I kept my suspicions to myself and went on to enjoy my time in Germany immensely.
I don’t know who these nasty anonymous posters are. I know they aren’t me. I know they aren’t Larry. But they could be the guy at the gas station, or the gal at the grocery store. I could walk around suspicious of them, but it wouldn’t help me any. I could find out if I wanted to start suing every nasty person in sight, but that’s really not much of a life and, more than likely, wouldn’t improve the condition of life on the internet since there are far more nasty comments that courtrooms.
What strikes me as a far better way to deal with the nastiness is to come up with one of those cool internet words, like w00t or n00b, but one for anonymous posters who post nasty things. We all know, or certainly should know, that these posts are worthless, meaningless, incredible and ugly. When we read someone else’s bit of nastiness, we should be able to post that word as the response of the normal to the disinhibited nasty people. Cut them down to size with a single syllable. And the rest of us can LOL at them for being nasty and stupid.
If I can get past looking into the eyes of men who carried guns for the Third Reich, then I can certainly get beyond some disinhibited jerks who feel tough by posting nasty, vicious comments under a cloud of anonymity. I bet others can manage this as well, without asking for new laws and judicial interference to silence people who call them names. We already have laws to protect us from those who would actually act out their anger toward people whose views disagree with theirs, so we don’t need to concern ourselves with that.
But nasty comments are still just words. Sticks and stones, baby.
Why Olson’s “Better Shake” Is Mostly For The Wealthy
When the Supremes decided Forest Grove v. TA last week, it struck me as a sound statutory interpretation decision, removing an unintended barrier from the path of children obtaining a free appropriate public education. The Court held that a student could obtain reimbursement for private education for a learning disabled child who not been part of a district’s special education program first.
While it’s not surprising that school districts, faced with special education as an unfunded mandate, found the decision unpalatable. They were constrained to pay the freight, which came from budgets that were already tight and subject to the ever increasing demands of teacher contracts and the beloved step increases. But they weren’t the only ones troubled.
Walter Olson, from Overlawyered, usually has quite a good feel for such issues. But this time, he wasn’t persuaded. Quoted by San Francisco Chronicle columnist Debra Saunders, Olson said:
For those whose view of special education is from a distance, learning disabled kids all look pretty much the same. As any parent of a learning disabled child will be happy to tell you, at great length, is that no two are the same. While they tend to use the same handful of diagnoses to categorize and pigeonhole them, mostly for lack of better or more specific explanations, the range of disabilities and severity has wild swings. Their needs differ enormously, in ways that can, and have, filled tomes of academic and medical studies. The one thing that parents, as well as neuropsychologists, understand is that there is no such thing as the panacea of special education.
Schools, on the other hand, have some hard constraints. There is only so much money, room, personnel and understanding available to deal with children with special educational needs. Because of this, they use the “panty-hose method,” or one size fits all. A district with a particularly good program, and there are some, will be able to adequately educate a middle ground of learning disabled students this way, those with moderately severe disabilities of a generalized sort. Never a great solution, but FAPE doesn’t promise perfection.
But the panty-hose method is worthless for those students whose disabilities fall outside the “norm”, though there really is no norm except in the minds of public school educators. As for those districts whose programs are just awful, more like going through the motions of putting the LD kids in the same classroom to keep them away from the “normal” kids while offering a teacher who uses small words spoken in a loud voice, as if that was a viable pedagogical method, they can kiss any chance at a future goodbye. This is babysitting under the guise of special ed.
What becomes brutally clear very quickly to parents is how inappropriate these programs can be for their children. In this context, inappropriate can range from the conflicting mix of disabilities found in a single classroom to the flagrantly clueless special ed teacher to the contra-indicated teaching methodologies. Bear in mind, districts tend to have one, maybe two at most, special ed classes per grade. All the special needs students are thrown in together, despite the fact that they may have diametrically opposed needs. To use an analogy that people who have never actually held a learning disabled child’s hand will understand, it’s like putting a first grader and a high school senior in the same classroom, and telling them to have a nice day.
Walter’s question is why not give it a try, at least. Aside from the fact that it is often obvious from the outset that some public school special ed programs offer no educational benefit, Walter ignores a very basic, very real problem for parents and children: You only get one chance to be a child. There is no “do-over” for childhood. A year of school lost to worthless program is lost forever. To a child, a year is forever.
To an LD child, it’s the waste of an opportunity to improve one’s condition that we cannot afford to lose. They need every year to count, to improve their education, understanding, life. These children already function at a deficit, and need education more than “normal” children if they are going to survive, contribute and enjoy a relatively normal life. They can’t afford to lose a year just to give the school district’s a shot. This isn’t a game for learning disabled students. This is their one chance at having a life, and it’s not something to squander cavalierly.
As to Walter’s second issue, why the wealthy seem to be the ones most likely to take advantage of the law enabling learning disabled students to obtain reimbursement to private, specialized schools, his point is well-taken, but easily, and unfortunately, explainable. There are a handful of specialized schools that provide life-changing education for learning disabled students, and they cost a fortune, if you are lucky enough to get a place. If I was to guesstimate, there is one seat for every thousand children who would benefit from these schools. They tend to be very small, very specialized and very, very good at what they do. But it costs a bundle to provide this type of education to this small handful of students.
This sets up two financial obstacles that give rise to Walter’s issue. The first is the cost of litigation, when the school district refuses to place an LD student in a private school. The mechanics of a due process hearing under the IDEA take quite a while to reach fruition, meaning that the administrative proceedings that a parent must go through just to get to an “impartial hearing officer” (as they are called, to be distinguished from the “partial hearing officer” otherwise used by school districts), without even touching the issue of appeals, requires that a parent have substantial resources to pay an education law attorney.
This isn’t a contingent fee situation; the attorneys get paid for their services, and there is no assurance that the parent will win in the end. Indeed, many hearing officers have “heard it all before” and have lost any particular sensitivity to the needs of children. So the parent must not only have the ability to pay a lawyer, but the ability to lose whatever money has been paid in the case of an adverse outcome.
The time frame for these hearings essentially costs parents a year at minimum, which gives rise to the second expense. Assuming a parent is fortunate enough to get a place for his child in an appropriate private school, the next step is to enroll the child and pay the private school bill while simultaneously maintaining the action against the school district. This means that the parent must front the cost of the private school and seek reimbursement, rather than payment, of the costs. This happens while the parent is paying the lawyer to challenge the district’s placement. There is a huge amount of money at risk, and in the event a parent who is not possessed of substantial wealth loses, it could bankrupt a family. Bear in mind, families may well have other children who suffer for the lack of funds used to pay the private school and lawyer in the hope of reimbursement.
So why is it the wealthy who end up being the movers in these cases? Because no one else can afford to do it. The wealthy make the fight so that others, whose children are every bit as deserving of a real education, can hopefully benefit from their efforts. The problem isn’t that the wealthy seem to disproportionately benefit, but that the non-wealthy are precluded from obtaining a FAPE for their children by a system that makes it financially untenable for them to do so. It’s not for lack of desire
, but lack of cash in the face of a system that is shockingly onerous, time-consuming and expensive.
It’s fair to say that most parents of learning disabled children want their babies to have a real shot at being educated and growing up to live a happy life. It’s probably fair to say that most people think that’s what schools ought to be providing. That it’s our public schools that are so often the impediment to this is the real shame. It shouldn’t require a legal team and a wealthy parent to challenge the school district’s panty-hose methods, just as schools should show far greater comprehension of their mission than to just pigeonhole learning disabled students in a classroom at the back of the school building.
For now, decisions like Forest Grove are necessary to compensate for the failure of public schools to provide a free appropriate public education to learning disabled students. Great minds like Walter’s would be better put to fixing the problem with public schools than questioning the ad hoc methods of parents to obtain an education for their child.
While it’s not surprising that school districts, faced with special education as an unfunded mandate, found the decision unpalatable. They were constrained to pay the freight, which came from budgets that were already tight and subject to the ever increasing demands of teacher contracts and the beloved step increases. But they weren’t the only ones troubled.
Walter Olson, from Overlawyered, usually has quite a good feel for such issues. But this time, he wasn’t persuaded. Quoted by San Francisco Chronicle columnist Debra Saunders, Olson said:
Walter Olson of overlawyered.com nailed the problem with the majority ruling when he opined in an e-mail, “The impulse to get a better shake for one’s kid is universal, but it’s disproportionately wealthy and clever parents, with their hired lawyers and experts, who succeed in using these rules to obtain a private school education at public expense. In this case, the question was whether parents should at least try the public schools’ proffer of special-ed services before declaring them inadequate, which doesn’t seem to me to be too much to ask.”Walter’s beef raises two issues, both warranting some discussion. The larger issue, why parent’s shouldn’t have to “try” public school programs before “declaring them inadequate” seems perfectly reasonable on its face, but reflects that same sort of theoretical misunderstanding that we so often find in Supreme Court decisions on criminal law issues. It’s a view that’s disconnected from harsh reality, whether it’s the reality of life on the streets or life in the classroom.
For those whose view of special education is from a distance, learning disabled kids all look pretty much the same. As any parent of a learning disabled child will be happy to tell you, at great length, is that no two are the same. While they tend to use the same handful of diagnoses to categorize and pigeonhole them, mostly for lack of better or more specific explanations, the range of disabilities and severity has wild swings. Their needs differ enormously, in ways that can, and have, filled tomes of academic and medical studies. The one thing that parents, as well as neuropsychologists, understand is that there is no such thing as the panacea of special education.
Schools, on the other hand, have some hard constraints. There is only so much money, room, personnel and understanding available to deal with children with special educational needs. Because of this, they use the “panty-hose method,” or one size fits all. A district with a particularly good program, and there are some, will be able to adequately educate a middle ground of learning disabled students this way, those with moderately severe disabilities of a generalized sort. Never a great solution, but FAPE doesn’t promise perfection.
But the panty-hose method is worthless for those students whose disabilities fall outside the “norm”, though there really is no norm except in the minds of public school educators. As for those districts whose programs are just awful, more like going through the motions of putting the LD kids in the same classroom to keep them away from the “normal” kids while offering a teacher who uses small words spoken in a loud voice, as if that was a viable pedagogical method, they can kiss any chance at a future goodbye. This is babysitting under the guise of special ed.
What becomes brutally clear very quickly to parents is how inappropriate these programs can be for their children. In this context, inappropriate can range from the conflicting mix of disabilities found in a single classroom to the flagrantly clueless special ed teacher to the contra-indicated teaching methodologies. Bear in mind, districts tend to have one, maybe two at most, special ed classes per grade. All the special needs students are thrown in together, despite the fact that they may have diametrically opposed needs. To use an analogy that people who have never actually held a learning disabled child’s hand will understand, it’s like putting a first grader and a high school senior in the same classroom, and telling them to have a nice day.
Walter’s question is why not give it a try, at least. Aside from the fact that it is often obvious from the outset that some public school special ed programs offer no educational benefit, Walter ignores a very basic, very real problem for parents and children: You only get one chance to be a child. There is no “do-over” for childhood. A year of school lost to worthless program is lost forever. To a child, a year is forever.
To an LD child, it’s the waste of an opportunity to improve one’s condition that we cannot afford to lose. They need every year to count, to improve their education, understanding, life. These children already function at a deficit, and need education more than “normal” children if they are going to survive, contribute and enjoy a relatively normal life. They can’t afford to lose a year just to give the school district’s a shot. This isn’t a game for learning disabled students. This is their one chance at having a life, and it’s not something to squander cavalierly.
As to Walter’s second issue, why the wealthy seem to be the ones most likely to take advantage of the law enabling learning disabled students to obtain reimbursement to private, specialized schools, his point is well-taken, but easily, and unfortunately, explainable. There are a handful of specialized schools that provide life-changing education for learning disabled students, and they cost a fortune, if you are lucky enough to get a place. If I was to guesstimate, there is one seat for every thousand children who would benefit from these schools. They tend to be very small, very specialized and very, very good at what they do. But it costs a bundle to provide this type of education to this small handful of students.
This sets up two financial obstacles that give rise to Walter’s issue. The first is the cost of litigation, when the school district refuses to place an LD student in a private school. The mechanics of a due process hearing under the IDEA take quite a while to reach fruition, meaning that the administrative proceedings that a parent must go through just to get to an “impartial hearing officer” (as they are called, to be distinguished from the “partial hearing officer” otherwise used by school districts), without even touching the issue of appeals, requires that a parent have substantial resources to pay an education law attorney.
This isn’t a contingent fee situation; the attorneys get paid for their services, and there is no assurance that the parent will win in the end. Indeed, many hearing officers have “heard it all before” and have lost any particular sensitivity to the needs of children. So the parent must not only have the ability to pay a lawyer, but the ability to lose whatever money has been paid in the case of an adverse outcome.
The time frame for these hearings essentially costs parents a year at minimum, which gives rise to the second expense. Assuming a parent is fortunate enough to get a place for his child in an appropriate private school, the next step is to enroll the child and pay the private school bill while simultaneously maintaining the action against the school district. This means that the parent must front the cost of the private school and seek reimbursement, rather than payment, of the costs. This happens while the parent is paying the lawyer to challenge the district’s placement. There is a huge amount of money at risk, and in the event a parent who is not possessed of substantial wealth loses, it could bankrupt a family. Bear in mind, families may well have other children who suffer for the lack of funds used to pay the private school and lawyer in the hope of reimbursement.
So why is it the wealthy who end up being the movers in these cases? Because no one else can afford to do it. The wealthy make the fight so that others, whose children are every bit as deserving of a real education, can hopefully benefit from their efforts. The problem isn’t that the wealthy seem to disproportionately benefit, but that the non-wealthy are precluded from obtaining a FAPE for their children by a system that makes it financially untenable for them to do so. It’s not for lack of desire
, but lack of cash in the face of a system that is shockingly onerous, time-consuming and expensive.
It’s fair to say that most parents of learning disabled children want their babies to have a real shot at being educated and growing up to live a happy life. It’s probably fair to say that most people think that’s what schools ought to be providing. That it’s our public schools that are so often the impediment to this is the real shame. It shouldn’t require a legal team and a wealthy parent to challenge the school district’s panty-hose methods, just as schools should show far greater comprehension of their mission than to just pigeonhole learning disabled students in a classroom at the back of the school building.
For now, decisions like Forest Grove are necessary to compensate for the failure of public schools to provide a free appropriate public education to learning disabled students. Great minds like Walter’s would be better put to fixing the problem with public schools than questioning the ad hoc methods of parents to obtain an education for their child.
Running to Lose
The big race for District Attorney will be in Manhattan, where the candidates scramble to fill the very large, and very old (but well maintained), shoes of Robert Morgenthau. There are other races as well, but they won’t receive the same level of interest. One such race is in Nassau County, where controversial District Attorney Kathleen Rice is up for re-election.
Rice rode into office on the coattails of Democratic County Supervisor Tom Suozzi, ousting long-time Republican District Attorney Denis Dillon, who spent far too much time concerned about women having control over their bodies to worry about some out-of-town upstart who lacked any apparent qualifications to serve. In Nassau County, having the Republican Party line was all one needed to get elected. That all changed with Suozzi. Well, actually with Republican Party leader Joe Mondello, but that’s another story.
The Republicans are running Joy Watson for District Attorney, a long-time ADA under Dillon who served as Chief of Sex Crimes. She is now the principal law clerk to Nassau Supreme Court Justice Karen Murphy. I don’t know her, but my dear friend, who occasional comments here as The Blind Guy, speaks very well of her. While she’s got one huge mountain to climb, given the current political climate, he tells me that Watson is running for real.
Hoping to learn a little bit more about the race, I did a bit of checking. I was stunned by what I found. No, nothing shocking about Joy Watson, but a tidbit in one of the local throw-away papers, the Floral Park Dispatch.
I wasn’t aware that there was a Libertarian Party in Nassau County. Then again, I wasn’t aware there could be such a thing as a “sole partner” by definition. Go figure. Tony is a major user of social media, occasionally blogging as That Lawyer Dude and twitting up a storm under the same name. He works Avvo Answers, with 504 “answers” as of this writing. On Avvo, he calls himself the “senior partner,” though one would have to have a junior partner for that to make sense. Tony has worked very hard to craft an online persona for the purpose of promoting his practice.Anthony Colleluori Is Libertarian Party’s Candidate
The Nassau County Libertarian Party has named Anthony “Tony” Colleluori as their nominee for Nassau County District Attorney.
Colleluori stated that he will run his campaign highlighting his experience as a defense attorney and civil rights litigator for over 25 years. Issues which he says are his priorities include “ending the excessively punitive prosecutions against DWI suspects, cutting wasteful spending, videotaping all confessions, and de-prioritizing the prosecution of marijuana possession.”
Colleluori is sole partner of his law firm Colleluori & Associates. He is a longtime Nassau County resident presently living in Woodbury with his wife Mary Rose. They have two children Salvatore and Franklin.
And now Tony is running for District Attorney on a minor party line. What is he thinking?
Clearly, he’s got no chance of winning, so he’s running to lose. Why would someone run to lose? There are two possible answers. The first is that he hopes to have a hand in framing the discussion for the campaign. Rather than have Rice and Watson slug it out over who’s going to lock more people away, Tony will inject alternative views into the rhetoric, providing a counterbalance to the fear-mongering that typifies District Attorney races.
The second possible reason is that it’s an opportunity to promote his law practice by using the campaign as a self-promotional marketing opportunity. The benefit here is that if you know you’re guaranteed to lose, there’s no harm to the campaign by using it for personal gain.
Reason number 1 is a very good reason to run for office, even though you know that you have no chance of winning. Reason number 2 is cynical and manipulate. Well-intended supporters of the Libertarian Party will donate their time and money to help promote candidates for the benefit of the party’s agenda. They aren’t doing it so a candidate can get business.
Given how little interest there is in the District Attorney’s race in Nassau County, since Rice and the Democrats are expected to have this election locked up, and even if there is any public discussion on the issues, it will be between the two major party candidates, it’s a huge stretch to imagine that Tony will have much opportunity to contribute to the discussion. Though tilting at windmills perhaps, it would at least be an honorable effort. There is something to be said for people willing to tilt at windmills.
If it’s the second reason, then it would be a subversion of the political process and an unfortunate choice, for him and for the criminal defense bar. It would not be an honorable thing to do. I hope it’s the first reason, Quixotic though it may be, for everyone’s sake.
A Slice of the Health Care Pie
As private health insurers argue their talking points that we’re all going to die from bad health care if the government puts its fingers on the scale, while the cost of their policies rose at a rate of four times the earnings rate of the past 10 years, I had to laugh. Living with Dr. Simple Justice, a/k/a SWMBO, I’ve come to hear a bit about this world from the other side.
Most private health care providing, those not working on salary, are providers for a number of systems, such as United Healthcare, as well as medicare and/or medicaid. They have contracts with these HMOs, insurers and the government with require them to agree to their payment terms. They set the reimbursement rates for medical services, sometimes providing for the patient to pay their deductible or a co-payment.
Since Dr. SJ first opened her shop in 1984, her reimbursement rates have fallen approximately 60%. In other words, she now receives payment of 40% of what she received way back then for the same health care services. Every year, she receives a letter from them informing her of what they will be paying for her services. Each year, the number on the letter is a little lower than it was the year before.
There’s no one to argue with about the number. It is what it is. The choice is to accept patients from that insurer or HMO or government program or not. When the cost of providing the service exceeds the reimbursement rate, as it has with numerous outfits, she terminates her contract with them and stops taking their patients. She’s done this a few times.
If I do say so, Dr. SJ is awfully good at what she does. She refuses to give her patients the bum’s rush, or put them on expensive equipment and pretend its the same thing as real treatment. She makes herself available to them when they need her, calls in the evening to explain things again or to talk with family members who are worried about their parents or children. It’s all part of the job. It’s not reimbursable.
When she first opened shop in 1984, we leased a bunch of expensive equipment because she felt that it was necessary to perform treatment in some cases. The leasing company makes very clear that the only viable way to pay for their leases is to make sure that the equipment is fully utilized. When managed properly, the equipment becomes a profit center. When neglected, it’s a very expensive burden.
Properly managed equipment means that you schedule patients to use it during every available hour. Sometimes, patients don’t need this equipment, whether be cause the tests aren’t necessary or the treatment isn’t helpful. The equipment can be used as a placeholder for patients, meaning that they feel as if you’re doing something useful even if you’re not. Patients don’t argue about tests or equipment; if you tell them that’s what they need, they are happy to comply. The equipment gets used (and billed), the patients are kept busy without eating up any hands-on time and everybody is happy. Except it may be totally unnecessary and unhelpful. Not necessarily harmful, but unhelpful.
Eventually, Dr. SJ got rid of the equipment that she didn’t believe to be beneficial to her patients and only kept the stuff that she thought was really needed. And then, she only used it when it was appropriate, beneficial to her patients. Instead of equipment being a profit center, it became an expense as it sat idle if it wasn’t indicated. She ate the expense rather than use it just to bill it out or keep patients busy.
Most of Dr. SJ’s treatment is hands-on and personal. This means that her time is what she gives to her patients. It’s the scarcest resource she has, but it’s also the only resources that proves truly beneficial. She receives the same reimbursement for her time as someone who spends 12 seconds putting someone on a machine for a half hour. Her patients get better, and then they go away.
Dr. SJ loves what she does. I bet she would treat her patients if she wasn’t paid at all, not that I’m suggesting such a thing. Of course, she also has a swell husband to make sure that the milk money is always there.
Whether the government’s intrusion into the private domain of health care will put the private carriers and HMOs out of business has yet to be seen. That it will drive costs down in a competitive climate is likely undeniable, at least at first. Even without executive salaries and perks, it’s unclear that government won’t create a bureaucracy that will eat up money at pace that equals, if not dwarfs, private enterprise. The fact that it could be done well is no assurance that it will. The fact the private enterprise has been a disaster makes taking a chance on governmental involvement more palatable.
But with all the money being pumped into the health care industry, Dr. SJ makes a fraction of what she did 25 years ago. It’s not going to her. She could play the system, billing for needless tests, using expensive equipment as a profit center and quadrupling up on patients by putting them on unhelpful equipment where she need never actually touch them to make the reduced reimbursement rates less painful, but she won’t.
I pay for healthcare insurance. It costs a bloody fortune, and I’ve never come anywhere near using as much in services as I pay out in premiums. I would prefer to be “self-insured,” but the problem is catastrophic disease or injury, which could swiftly bankrupt anybody. We’re all just one car crash away from financial and medical ruin.
It’s not just what we pay into the system that matters, but what we get out of the system that counts as well. Nobody talks about it in real terms. Some complain about malpractice insurance rates, but they’re not really a problem for Dr. SJ. She’s never been sued. This vast amount of money is going somewhere, but it never manages to find its way to her mailbox. One day, when the checks that come in are less than the checks that go out, I will ask her to pack her bags and enjoy life without health care insurers, HMOs or government programs.
As people argue about how much money we pump into the system, there’s little understanding of what becomes of that money once it’s paid and where it comes out on the other end. This isn’t a guessing game around our house. We know one place where the money isn’t ending up, in Dr. SJs hands. Lucky she has such a swell husband.
In Dog We Trust?
No, not the pondering of a dyslexic agnostic, but the interesting difference in a police officer’s love of dogs when they’re theirs rather than yours. From the South Florida Sun Sentinel :
It was 1 a.m. when the doorbell rang at the McDonald family home. Deputies rushed in screaming: “Get down! Get everyone down!”
As the deputies screamed for everyone to get down, two of the McDonald children, 7 and 13, “were panicked, crying, holding onto their father as if their very lives depended upon it,” the lawsuit says.
The McDonalds asked the deputies why they were in their home without a warrant.
After detaining the family for three hours in their home, the deputies left, deciding it was the wrong address.
So why would West Palm Beach deputies do such a thing to a nice family like the McDonalds?
That night, the deputies were investigating a possible car burglary in the 18000 block of Old Princeton Lane, according to a Sheriff’s Office report. Deputies were called when the car’s alarm went off, though nothing was reported missing from the car. The dog unit was called in and led deputies to the McDonald house, according to the report.
The dog said so. And really, can you argue with a dog? That’s the question that police are constrained to ask themselves when it’s someone else’s dog that comes playfully running, leaping, barking, as they approach. Which, naturally, compels the officers to pull out their 9mm and kill the dog, lest the dog harm them with their wagging tail.
More than 10 deputies were involved in the entry. They were investigating a car burglary report and the Sheriff’s Office dog unit led deputies from the crime scene to the home about a mile away on the 10000 block of Crescendo Circle, west of Boca Raton.
The deputies spread throughout the house, some wearing colored goggles, black vests and gloves. One wearing goggles pointed a handgun at Nicolette McDonald, 17, until it touched her chest.
Could those goggles have been rose-colored? At least when it comes to dogs, they could. Nicolette McDonald? Not so much.
This is the point that Radley Balko, chronicler of dog killings, misses: Police don’t hate dogs. Police hate your dogs. They love their own. In fact, they love them so much that they are prepared to break into your home in the night and shoot your children, if need be, to honor their dogs.
The police in West Palm Beach say that the McDonalds’ description of the night is untrue. According to the cops, the McDonalds invited them into their house at gunpoint at 1 a.m. with their 7 and 13 year old children crying. While some might find the police claims incredible, they should consider the possibility that the McDonalds were deeply concerned that a car thief had slipped in through the lanai room slider and the police were there to protect them. It could happen, right?
But the question that remains unanswered is what were the cops doing for 3 hours? While I’m sure the McDonalds have a lovely home in WPB, the chances of its requiring 3 hours to search are, well, slim. Now it’s possible that with only 10 deputies inside the house, the search might take a little longer than it would with, say, 25, though it might well be that diminishing returns set in with either number.
In any event, other residents of West Palm Beach should be aware that this potentially disturbing event shouldn’t disrupt their sleep. When the McDonald’s attorney made a complaint with internal affair,
H/T Packratt at Injustice Everywhere
This is the point that Radley Balko, chronicler of dog killings, misses: Police don’t hate dogs. Police hate your dogs. They love their own. In fact, they love them so much that they are prepared to break into your home in the night and shoot your children, if need be, to honor their dogs.
The police in West Palm Beach say that the McDonalds’ description of the night is untrue. According to the cops, the McDonalds invited them into their house at gunpoint at 1 a.m. with their 7 and 13 year old children crying. While some might find the police claims incredible, they should consider the possibility that the McDonalds were deeply concerned that a car thief had slipped in through the lanai room slider and the police were there to protect them. It could happen, right?
But the question that remains unanswered is what were the cops doing for 3 hours? While I’m sure the McDonalds have a lovely home in WPB, the chances of its requiring 3 hours to search are, well, slim. Now it’s possible that with only 10 deputies inside the house, the search might take a little longer than it would with, say, 25, though it might well be that diminishing returns set in with either number.
In any event, other residents of West Palm Beach should be aware that this potentially disturbing event shouldn’t disrupt their sleep. When the McDonald’s attorney made a complaint with internal affair,
investigators in May found the claim “unsubstantiated,” records show. The report said despite the family’s assertions, there is no evidence deputies pushed their way into their house, yelled at them or pointed their guns at anyone.After all, it was the McDonalds’ word against the dog’s. Who you gonna believe?
H/T Packratt at Injustice Everywhere
The Greenfield Approach to Bernie Madoff
Having spent a fairly good amount of time and energy deconstructing the Madoff case, and the respective positions of Madoff’s lawyer, Ike Sorkin, and AUSA Marc Litt for the government, it’s time to put my own butt on the line with how I would approach the sentence if Judge Denny Chin called for advice. For the record, he has yet to do so, but the phone lines are open (call me anytime, DC).
The view from the Simple Justice bleachers is that there is little question, in fact no question whatsoever, that Madoff has caused monumental harm by his conduct, demonstrating almost no concern for the damage done to others in the process of creating and perpetuating a scheme that extended so far beyond mere financial gain that it’s truly impossible to imagine a person with the slightest concern for humanity to do so. While his weapon was investment house statements rather than a gun or a bomb, it was used with the same lack of conscience that a mass murderer or terrorist might, although terrorists usually believe in something beyond themselves. Bernie believed only in Bernie, and took no prisoners.
Thus, I can find absolutely no saving grace on behalf of Bernard Madoff. It surprises me deeply that Sorkin didn’t offer any, no less a substantial, basis to show the good works that Madoff performed with the vast wealth he accumulated, to demonstrate the there was something beating in his chest. I cannot assume it in the absence of evidence. It similarly surprises me that Sorkin offered no explanation of how Bernie started down the road to perdition, how a small larcenous heart grew to a monstrosity.
Had I been in Ike Sorkin’s (extremely well paid) shoes, my efforts would have been directed toward humanizing Bernie Madoff, showing the frailties that led an otherwise normal man to engage in conduct that was so terribly wrong, and how the “success” of his larceny fed upon itself in such a way that he couldn’t stop its momentum despite his desire to do so. Bernie had enough, but couldn’t figure out how to slow down and ultimately conclude the scheme once it took on a life of its own. But since Sorkin never made that argument, nor offered any evidence in support of it, I will not assume it either.
Clearly, the coverage of this case lends itself to a strong general deterrence argument. But this is more limited than the government acknowledges. If Bernie Ebbers’ 25 year sentence doesn’t serve to make the point that financial crimes are taken seriously and will result in far worse than the proverbial “slap on the wrist,” then this sentence isn’t going to do much to change the equation.
Moreover, there’s a very real question in my mind as to the merit of the general deterrence prong itself. It’s meant to affect the decision to engage in comparable criminal conduct, and in this particular case, it’s difficult to imagine that there will be any, no less many, who would have the ability to do anything comparable to Bernie Madoff. Further, it’s fair to question whether the potential sentence has any impact on the decision to engage in a crime, that decision being far more likely made by the expectation of not being caught rather than what happens if and when caught. While the law assumes that criminals engage in a cost/benefit analysis, my experience is that it just doesn’t work that way.
That said, the bigger question posed by the sentence of Bernard Madoff is whether a sentence should be imposed that will offer him the potential of ever walking out of prison. As Jeralyn Merritt astutely noted in one of my favorite concepts, they can’t sentence you to life plus cancer. Madoff is 71 years old. How long he will live is a known unknown, and it’s possible that he will not survive any sentence imposed. If not, then the sentence becomes immaterial to the life of Bernie Madoff.
But it is possible that Madoff will live into his 90s, maybe even to 100. No doubt his health care to date has been pretty darned good, and this may enable a longer life than most. Coupled with the mechanics of a federal sentence, with 57 days off per year for good behavior, plus eligibility for work release a year before his anticipated sentence expiration, plus the potential for time reductions for programs (though nothing comes to mind at the moment assuming he isn’t an alcoholic or drug abuser), it is conceivable that Bernie could one day breath free air despite his age and a severe sentence. Even a sentence of 25 years could result in his release in 19 to 21 years from now, and it’s quite possible that a 92 year old Madoff will take that long limousine ride back to his Park Avenue digs.
And hence, the bottom line question: Should Madoff ever leave prison alive?
My answer comes down to the distinction between the nature of financial crime and physical harm. There is, and there must be, a clear delineation between crimes that violate the physical integrity of another human being and crimes that reflect greed. This is not meant to trivialize financial crimes or the harm suffered by the victims of a Madoff or a Bernie Ebbers, but to distinguish a rape or a murder from the theft of money without any act of violence.
While greed is an ugly word, it is also one that can be used without stretch with many lawful and commonplace acts. Greed on a grand scale can cause proportionately grand harm, all the while still being lawful. We are awash with corporations cheating consumers out of their hard-earned funds by selling shoddy, deceptive merchandise, or charging improper or exorbitant fees, or taking advantage of market forces when it turns in their favor, and cause grave harm to many, all the while engaging in lawful, or at least not prosecutable, conduct.
As painful as it may be to those victims of Bernard Madoff, similar pain is spread amongst millions of individuals across our nation from losses generated by overarching economic forces. I reject the comparison to someone who has been raped, maimed or murdered. It is not the same, and the treatment should not be deemed comparable.
I would impose a sentence of 360 months (30 years for those who aren’t used to the way federal sentences are imposed), resulting in a net sentence of approximately 25 years, Madoff would likely be released from custody at the age of 96 years old, should he survive. He could then experience his remaining years as his victims will, in poverty and misery at his own hand. And if Madoff does not survive to reach his release date, so be it.