Monthly Archives: June 2009

When Bennett Goes Slumming

The Texas Tornado, Houston criminal defense lawyer Mark Bennett, isn’t one to hang out at the Harris County Criminal Justice Center all day long waiting for something fun to happen.  He goes out and finds it, and he’s done it again in this post.  That’s why he was voted the best criminal law blawger around.

Bennett has taken notice of the growth of cop blogs, and lists a few of his favs.



I started reading, and frankly, found it incredibly hard to stop.  These are simply fascinating.  And there are plenty more, from the venerable Beat and Release to the depth of The Philosophical Cop.  While each brings a slightly different twist on a remarkably common theme, my favorite is the first one listed by Bennett, If you got stopped….you deserved it.  Not only does our dirty talking motorcycle cop have plenty of stories about the really bad people who speed, but he’s got a marvelous way of telling them which makes it almost sounds as if he wasn’t totally insane.

Once I started reading the cop blogs, I found myself mesmerized.  If ever there was good reason to blog anonymously, this was it.  These were posts straight from the heart, if not the mind, of real cops.  They smelled real.  They tasted real.  They were real.  If they had to put a name to them, you can bet that they would be utterly worthless and totally official.  This is what goes on in the mind of an officer when they are free to tell it as they see it. 

No sense in my telling you any more about these blogs when you can read them yourself.  One warning: Put aside a good hour of your life to read and absorb.  Once you start, you’re going to keep reading and reading.  If you ever wondered whether your view of cops was a product of prejudice or paranoia, these will put the question to rest and answer all of your doubts.

Invitations to the Party, Academic Edition

Criminal Law Professor Michael O’Hear of Marquette Law School, famous for its “we don’t teach nobody to be stinkin’ lawyers” approach to education, provides a fascinating insight into how scholars go astray.  In this post at PrawfsBlawg, O’Hear asks some questions about how best to throw a party.  He calls it a conference.

First, a bit about O’Hear for those who may not be familiar.  A 1996 Yale Law grad, he clerked for Connecticut District Court Judge Janet Bond Aterton, of Ricci v. DeStefano fame, before getting a job with Sonnenschein Nath & Rosenthal in Chicago doing civil and criminal litigation.  After three years, he joined the faculty at Marquette Law School, where he’s described as:


A nationally recognized authority on sentencing and federal criminal law, Dean O’Hear teaches Criminal Law, Criminal Procedure, and related courses. He is an editor of the Federal Sentencing Reporter and the author of more than thirty scholarly articles on sentencing and criminal procedure.

Michael O'Hear

Just in case you don’t recognize him, his photo is on the right.  You wouldn’t want to be the only one nationally who doesn’t.  Now that I’ve written something overly snarky to highlight that even academics have a knack for needless self-aggrandizement, I happen to think well of Michael O’Hear’s writing.  The fact that I’m taking advantage of his post to make my point shouldn’t be read to suggest otherwise.  But that said, let’s consider O’Hear’s question to the other lawprofs, about how best to throw a conference.


Finally, who should the audience be? I have attended some conferences that have plainly been conceptualized as academics talking to academics, but others that have just as plainly been designed for a larger, more diverse audience, including students and practitioners. I have taken the latter approach with my two conferences. If my law school is footing the bill to fly in a bunch of smart people from around the country to have an interesting conversation, it seems only natural to try serve as many institutional interests as possible through that conversation, including teaching and community outreach interests. Moreover, I’ve found that law students and practitioners, while perhaps not as steeped in the scholarly literature as academics, often have valuable comments and questions that inject important practical considerations into scholarly discussions.

Reading this query, I was constrained to begin with the fact that O’Hear, who I assume to be smart as a whip, has substantially less actual experience than your basic public defender.  To the extent that he’s got anything to say about criminal law, procedure or sentencing, it’s theoretical.  He can’t even claim a stint in the U.S Attorneys office to say he’s got the chops to talk about the practice of law.  And yet he teaches it to future lawyers?  It’s a fascinating thing, scholarship.  So high-brow, yet so disconnected.

But when it comes time for conferences, O’Hear takes the position that the larger community, students and practitioners, should be allowed in the door.  Here’s the line that caught me:


I’ve found that law students and practitioners, while perhaps not as steeped in the scholarly literature as academics, often have valuable comments and questions that inject important practical considerations into scholarly discussions.
The first curiosity is the lumping together of students and practitioners, who O’Hear notes, “often have valuable comments.”  By feeling compelled to mention this, he suggests that this is something that other academics would dispute.  Of course, students and practitioners are fundamentally similar, as far as scholars are concerned, neither being “steeped in the scholarly literature.”  To me, there are a few distinctions worthy of note, but then, I’m a practitioner.  What would I know?

In the past, Marc Randazza has characterized the doings of academics as a “circle jerk,” a phrase which  at least one finds “juvenile”.  Yeah, well, it may be but it’s just so darned descriptive.  The question that demands an answer is why bother to hold a conference at all?  Is there a purpose to all this scholarship, aside from getting tenure or gaining even greater national recognition for one’s scholarliness?  Might a conference on a topic of, oh, say criminal law, have some ultimate applicability to something like, oh, say criminal law?  Or is this a chance for the gang to party?  Put on those blazers with the leather patches over the elbows and impress your friends in the Academy?  Share a glass of sherry while smoking a pipe?  Actually, I don’t think smoking is allowed any longer, so strike the pipe thing.

In my effort to avoid needless offense as I offer my low-brow, unsteeped practitioner view of the world, might I suggest that putting a group of lawprofs into a room who sum total of actually experience in the real world is the practical equivalent of kindergarten serves little utility?  If you think you’ve got a brilliant theory, test is against my reality.  If it’s got any rigor, it can withstand a little scrutiny.  But if it doesn’t fly to the unsteeped crowd, the ones who stand besides the folks who you would have live with the theories you develop under your sanitary conditions, then what the heck are you wasting your time for?

Again, I use Michael O’Hear as my example only because he was foolish enough to ask a question that I’ve no doubt many in academia have considered.  There’s nothing he’s done, that I’m aware of, that suggests he’s a bad sort of fellow, or hasn’t contributed some good ideas on the issue of criminal law.  But he reveals the scholarly bias that compels confrontation.  Since so many of us, practitioners and media, turn to lawprofs for their thoughts on very important substantive matters, and the lawprofs are ever so eager to give their opinion, it’s of critical importance that we appreciate the value of these comments.  These opinions frame issues and thought.  Scary.

The problem with filling a room with very intelligent, overly steeped lawprofs, whose only gap is that they’re possessed of such limited actual experience that their most enlightened thoughts are wholly disconnected from reality, is that it serves no functional purpose whatsoever.  This may not disturb scholars, but it makes the rest of us wince in pain.  We don’t see much point in engaging in discussion about subjects that lead nowhere and have no actual purpose or application.  It matters not how many pats on the back the conference coordinator receives from his peers. 

As for the students, they really don’t have much to offer for our purposes.  Lacking any experience at all, they’re finest thoughts are even less connected to reality than yours.  But on the other hand, since it’s their tuition that pays for your sherry, you ought to let them sit and watch so that at least they will know why they’re in debt for the decade following graduation.

Who You Gonna Call?

On the heels of Brian Cardall’s death by taser comes the demise of Manny Morales in Port St. Lucie, Florida.  Depressed and suicidal, after losing custody of his four kids as well as his job, he locked himself in a room and started drinking.  His sister Angie was worried for him, so she sought help.

According to police, Manny was first tased and then shot twice in the abdomen.  The media reports are sparse on details, with the police saying that he was “armed”.  The family said that there was a BB gun in the house, but no other weapons.  Of course, a man with a BB gun can look sufficiently armed to cause an officer to pull his weapon out and protect himself.  Yet that doesn’t appear to be what happened.

According to WPTV News :


“They gave him several commands,” said Tom Nichols with the Port St. Lucie Police Department.  “He didn’t comply and the officers felt their life was in jeopardy.”

If Manny had a gun, even if only a BB gun, you can bet big money that Nichols would have said so.  Few would seriously question a cop facing a gun and acting upon it.  When the reports are limited only to the vague term “armed”, it’s because whatever “weapon” he was supposedly holding would be more embarrassing if disclosed than concealed. 

But the point isn’t whether the shooting was justified.  The officer involved, Albert Riccardi, has been placed on administrative leave and is under investigation.  No doubt he wishes he could take those two rounds back, for his own sake if not Manny’s.  But it’s done.  He’s tainted for life and Manny Morales is dead.


“We didn’t want to shoot anybody,” Nichols said. “But at the end of the day our responsibility is to protect and serve.”
Therein lies the problem.  By some tacit twist of logic, the death of a psychologically disturbed man falls into the “protect and serve” hole.  What he means to say is that, at the end of the day, stercus accidit, and the world of policing moves on.

The irony is that we still believe that when we are in need of assistance, we can turn to police, close our eyes, click our heels twice, and believe that they will arrive, exercise intelligence, discretion and, dare I say it, empathy, and help us.  We believe that our loved one will weather the encounter alive. 

When someone you care about is suffering from psychological distress, think twice about who you call.  Once for Brian Cardall.  Once for Manny Morales.  Once the call is made, there’s no going back.

Soapbox Justice

The first post on Simple Justice, long before the regular readers today even knew of its existence, was entitled “Justice is a funny thing.”  It reflects my pragmatic view of the system and my role of criminal defense lawyer.  We aren’t advocates for justice.  We’re advocates for defendants accused of crimes.  This upsets those who want to climb up on the soapbox.

Many readers, and particularly many commenters, wear the helmet that Cervantes placed on Don Quixote.  They get on a soapbox to rail against injustice.  These people tend to be shocked when I dismiss their naiveté, or fail to applaud their cries for justice.  They expect me to stand behind them 100% and provide them with a platform for their views.  They turn on me for my failure to do so, whether because I disagree or because I don’t allow Simple Justice to become a church to the cause.  They can’t begin to understand why.

Here’s the deal.  I join with others to expect and demand justice from the government, the police, the prosecutors.  These are institutions of government, the existence of which depends on their serving the purposes for which we have given them power and authority to control the lives of others.  It’s my belief that these institutions must be held to their purpose or they have no reason to exist. 

But criminal defense lawyers are not the opposite of these institutions.  Our existence is not to serve justice, as some mistakenly assert.  Our existence is to defend clients using whatever means the law allows, with the single-minded zeal our clients deserve.  This means that we are often the enemies of justice, to the extent that justice is defined as the outcome that best serves the greater good.  This means that if we do our jobs properly, guilty people will walk free. 

I see the audience at Simple Justice as being lawyers and sophisticated non-lawyers.  But I have no control over who reads this stuff.  I frequently get comments, often prolix, barely comprehensible rants, tangentially related to a post and screaming about Freedom, and Due Process and the like.  Most readers never see these comments, as I delete them as soon as I see them.  They are the rants of ideologues who, their fervor aside, present a simplistic, usually ignorant, perspective.  They bring nothing intelligent to the discussion, even though I may well be sympathetic to their cause.

This happens with lawyers as well, unfortunately.  Usually young lawyers, naive and full of their own self-importance, believing that thoughts that just popped into their heads are so valuable and original that they must be shared with others.  Sometimes, I try to talk these lawyers off the ledge, but they tend not to believe that they haven’t come up with a truly novel and important idea and get angry with me for trying.  These lawyers tend not to last long here either.  They get angry with me for speaking my piece here without letting them speak theirs.  It’s unfair. 

I’m often told that my posts here are properly characterized as “rants”.  That may be, but it’s not how I see them.  I write what I think, as clearly as possible.  My suspicion is that my writing tends to be far clearer, and stronger, than many others, which makes them appear rant-like in contrast.  From where I stand, the problem is not me, but others in their failure to present a point of view clearly or forcefully.  So many people write posts that, after reading them, leave you either unclear as to their point or so equivocal that they can wiggle out of their opinion as needed.  Many writers are deathly afraid of writing what they think lest someone disagree.  I do not admire people who are too afraid to state their true opinions, even if unpopular or potentially contrary to their carefully-crafted marketing persona.

At least the ideologues, stupid as their comments often are, have hard opinions.  At least they have the guts to write what they mean.  This is tempered by those who  use absurd names, like “Truth Seeker” or “Voice of Reason,” which almost invariably assures us that they are the views of a nutjob.  This, by the way, is a word of caution to anyone who is inclined to post under such names; Chances are very good that I will assume you’re insane and either delete or ignore whatever you post.  Just because you belief your thoughts to be the “truth” doesn’t mean they are, or that they are worthy of consideration.  Sorry, but if they don’t pass muster with me as offering anything worthy of consideration, they are subject to deletion.  You are free, of course, to start your own blog and post your thoughts to your heart’s content, but I don’t have to let you use my bandwidth.

If you expect to find a sympathetic ear at Simple Justice for those who are on a mission for justice, you might find be disappointed.  First and foremost, I am a criminal defense lawyer.  I defend people accused of crimes.  They don’t come to me for justice; they come to me to win.  That’s what I try to do.  My commentary is colored by my role as a criminal defense lawyer.  For my intended audience, this comes as no surprise.  Ideologues, however, are not pragmatic.

Other criminal defense lawyers may well believe that they stand for justice.  I stand for clients. 

Another Prosecutor Loses Her Virginity

This could have started out as another story about bad cops, lying their way into a drug bust of two innocent men.  But then, what’s new about that, except that this time there was a videotape proving that the two men were innocent.  Not less guilty than alleged, but totally, 100% innocent, as in there was no drug deal at all and the bust was a wholesale fabrication.

On the one side of this story, but for an uptown bar with video surveillance, there would have been no way to prove that the two men, bothers Jose and Maximo Colon, did not do what the undercover detective claimed they did.  Their word, the word of two Dominican immigrants, against the word of New York City Police Officer Henry Tavarez.  Guess who wins that swearing contest? 

But this isn’t a story about the victory of truth over police lies.  The brothers owned a convenience store.  Owned, as in past tense, as the arrest caused them to lose their license to sell tobacco, alcohol and lottery tickets, the lifeblood of convenience stores.  Their business was ruined, and their lives left in shambles.  So they weren’t convicted of crimes they didn’t commit, but hardly escaped unscathed.

Jose was represented by a Queens lawyer, Rochelle Berliner.  When he brought her the surveillance videotape from the bar proving that no drug deal occurred, her reaction, according to the New York Times, was quite strong:


”I almost threw up,” she said. ”Because I must’ve prosecuted 1,500, 2,000 drug cases … and all felonies. And I think back, Oh my God, I believed everything everyone told me. Maybe a handful of times did something not sound right to me. I don’t mean to sound overly dramatic but I was like, sick.”

It’s good that Berliner had this epiphany, and disturbing in the extreme.  She promotes herself heavily on her website as a former prosecutor.



CRIMINAL DEFENSE ATTORNEY WITH OVER 17 YEARS EXPERIENCE
FORMER NEW YORK COUNTY ASSISTANT DISTRICT ATTORNEY,
ASSISTANT SPECIAL NARCOTICS PROSECUTOR,
AND APPELLATE PROSECUTOR

Her biography goes into greater detail. 


Immediately after law school, I started working at the New York County D.A.’s Office, where I stayed for approximately 14 years. I spent my first two years in the Appeals Bureau and then transferred to Special Narcotics, where I remained until I left the office in May 2005. While in narcotics, I worked on long-term and short-term investigations, a lengthy wiretap case and, of course, street-level drug sale cases. During that time, I tried many cases and acquired extensive litigation skills and experience.

I left the D.A.’s office in May 2005 and started my own criminal defense practice, and that is what I am doing today.

She does indeed have 17 years of experience, though only 4 years as a criminal defense lawyer.  Those four years became more valuable after she met Jose Colon.  I’ve discussed the problems, both ethical and practical, with the exploitation of prior experience as a prosecutor.  Rochelle Berliner just learned the lesson the hard way.  This case stole her virginity.

What is disturbing about Berliner’s exclamation is not that she spent 14 years prosecuting people without having realized that maybe, just maybe, her cops weren’t perfect.  That’s to be expected of career prosecutors, who often spend their entire careers with their heads deeply embedded in the cops’ derrière.  It tends to give one a poor view of reality.  It’s that she spent four years since leaving Special Narcotics as a defense lawyer and yet, not until now, was aware of the fact that cops, sometimes, fabricate crimes out of whole cloth.  That’s four years of defendants represented by someone who was certain that they wouldn’t have been arrested if they weren’t guilty.

Now, Rochelle Berliner knows better. That’s good.  It was time she learned what it means to be a defense lawyer.  After four years as a criminal defense lawyer, the time was long past due that she pulled her head out.

The District Attorney’s office has a pat response whenever someone claims that the cops fabricated a crime:  Why would they do such a thing?  It’s not like they have a vendetta against the defendants, where they would go out and find Jose and Maximo Colon, target them for a false allegation and manufacture a case against them.  Why would police officer risk their jobs, their careers, their pensions, to get two men they never met before?  It’s ridiculous.

And it is ridiculous, but that doesn’t mean that it doesn’t happen.  It means that neither Jose nor Maximo Colon could explain why.  Only Police Officer Henry Tavarez can explain his motive in framing the Colon brothers for a crime, and no doubt he’s not talking.  There are, of course, some generic reasons, to get a bust, any bust, under his belt.  To get some overtime.  To get a medal.  To show his pals in the group that he’s not a screw up.  But this is mere speculation. 

Consider the learning curve of a former prosecutor turned criminal defense lawyer.  Full of their insider knowledge, they take on cases believing that they have all the weapons that any other lawyer would have, plus the knowledge gained from their years on the other side, giving them a great advantage over those lawyers who lack a prosecutorial background. 

Consider how many times this caused the former prosecutor to rush to the wrong assumption about her own clients, believing that the defendant was dead in the water despite his protestations of innocence, and persuading defendants to cop a plea.  No sleep was lost because, at the end of the day, the defendant was where he belonged.  You can’t spend that long in the District Attorney’s office without gaining a belief that its mission is pure and its judgment sound. 

Rochelle Berliner now knows better.  Welcome to the ranks of criminal defense lawyer, where we don’t have all the answers but we do know that the prosecution doesn’t either.  You’re lucky that you’ve joined in the age of pervasive video, or you still wouldn’t believe this possible.  Imagine how many times before the age of video Dominican immigrants like the Colon brothers were convicted for crimes that never happened, with someone like you feeling awfully good about it.  I can understand why this would make you sick.

So congratulations on losing your virginity.  I hope it didn’t hurt too much.  I’m sure it didn’t feel very good for Jose and Maximo Colon, and I hope Police Officer Henry Tavarez loses his soon.

Dead and Dying Links

Every now and again, I take a spin around the blogosphere to see who’s still alive.  I check my own blogroll to see whether blogs that were once vibrant are now dormant.  I check the blogrolls of others for blogs I’ve never read before or blogs that once held some interest but for one reason or another have failed to keep it.

So many are gone.  So many dead links.

There are many reasons why blogs die.  The bloggers were sold a bill of goods by the marketers that social media was the future of the law, and they learned that it was a load of crap after the 12th telephone call from a person desperately in need of a lawyer.  Pro bono.  The bloggers learned that it isn’t easy to write a couple times a week, particularly if you want to produce content of any substance.  The bloggers learned that if you post crap, nobody comes.  The bloggers found out that telling others how great you are really isn’t going to help your practice.

What I find particularly interesting is the correlation between blogs with grandiose names, or pompous claims, and blogospheric failure.  I suppose this is due to the fact that the lawyers who desire the most readily searchable names are likely to be the lawyers least capable of producing a worthwhile blog.

What this does produce, unfortunately, is a ton of flotsam and jetsam left behind in the blogosphere, the sort of debris floating about the ether into which the unwary will crash.  Bear in mind, dead blogs don’t necessarily go away, but simply exist like the ancient shipwrecks at the bottom of the ocean, except with nothing interesting or cool about them.  A better analogy would be the lawn signs of losing candidates left along a highway, reminding people that the candidate lost until the signs finally deteriorate and disintegrate.  But nothing disintegrates on the internet, so the reminder of the failure of these blogs could be there forever.

It’s understandable that many lawyer wanted to hop on the bandwagon when blogs were the newest, coolest thing going.  It’s similarly understandable that it didn’t work out, whether because it failed to produce your desired outcome or you just couldn’t handle the pace.  It’s okay.  Blogging isn’t for everybody.  And blogging certainly isn’t the magic bullet to success that its promoters contend.

But when you decide to call it a day, I ask you one thing.  Take it down.  Pull it.  Remove it, once and for all.  Do this for me.  More importantly, do this for you.

For my purpose, you’re leaving your litter and cluttering up my blogosphere.  Clean up after yourself so the blogosphere doesn’t become a dump, a wasteland of old/bad news. 

For your purpose, your dead blog is a tombstone.  When someone googles your name, they may find your old, ugly, dead blog, a monument to failure.  Is that the image you’re seeking to promote?  Trust me, when your last post dealt with a novel bit of news from October, 2008, you’ve brought yourself no glory.  It makes you look bad, particularly when your sidebar proclaims that you’re on the cutting edge of legal news and thought, and that your blog reflects how great you are as a lawyer. 

There was no expectation that every lawyer would one day have a blog, except from the folks who make their living off selling lawyers blogs.  The rest of us knew that this wasn’t for everyone, and didn’t serve the purpose that motivated the vast majority of short-run bloggers.  So you had to find out for yourself?  Fair enough. 

Now that you’ve given it a shot, and moved on to greener pastures like twitter, please take your old blog down.  Consider it the greening of the blogosphere.

We’re Not Just Self-Promoters

When the case of Stern v. Bluestone was first discussed here, it was following a 3-2 loss at the Appellate Division, First Department, which held that “it defied common sense” to believe that a lawyer would write an essay on a legal subject and distribute it but for the purpose of advertising.  I took umbrage with that characterization.

Well, it’s no longer the law of the State of New York.  The Court of Appeals decision has come down, and the decision of the First Department was reversed, with costs.  That our names may be attached to our writings is no longer conclusive proof that lawyer speech is, by definition, commercial.  Not that the judges believe we’re altruistic, but they have chosen to give us the benefit of the doubt.

The case, arising under the Telephone Consumer Protection Act, was a flashpoint between those who hate junk faxes (which is pretty much everyone with a fax machine) and those who understood that this wasn’t about faxes at all, but about defining lawyers as self-promoting scoundrels worthy of only limited speech rights. 

It’s not say that some lawyers aren’t just scum, whose exercise of free speech brings disgrace upon them and shame upon the profession.  We certainly have our share.  But not all of us, and not every lawyer should be tarred by those lawyers who just can’t help themselves from the constant, nauseating self-promotion that the hypsters tell them will bring great wealth and success. 

This was a crucial battle fought to establish that there are lawyers whose speech deserves full protection.  And there are.  As Eugene Volokh and Eric the Turk have noted, the emanations from this case had the potential for disastrous consequences for all lawyer writings, from articles to the blogosphere.  No longer will the equation be “lawyer + writing = advertising.” 

Discussion of this case, and the TCPA, has raised many cackles in the past, with TCPA supporters arguing zealously that nobody, but nobody, has the right to send them an unsolicited fax.  Lest this issue arise again, and I get the rush of zealots who want to argue the same irrational arguments that have been tried and rejected by intelligent people (as happened to Eugene when he posted about this), the question has nothing to do with intrinsic right to annoy anyone or intrude on their fax machine, toner or paper. 

The TCPA prohibits what it prohibits, and it’s limited, by its terms, to commercial solicitations.  If you think it should cover everything, that’s fine but irrelevant to the issue in this case.  The law simply does not prohibit faxes that are not commercial solicitations, and that’s not a subject of debate.  It’s the law.  You can disagree all you want, but you’re wrong.  End of story.

Of course, that doesn’t mean you should go out and hype yourself under the guise of being a great humanitarian.  We know who’s full of it and whose not, as does everyone else.  And if there’s anyone out there who still uses a fax machine, don’t send anything out that hasn’t been requested.  It just pisses people off, whether you have a right to do so or not.

There’s No Cravath System For Criminal Defense

Jordon Furlong’s Law21 posts are always worth reading, both for his exceptionally good writing as well as his always thoughtful topics.  If I had anything nit-picky to say, he sometimes isn’t entirely clear where he comes down on a particular issue, trying not to offend and occasional equivocating to cover his bases.  Not this time, though.

Jordon goes full bore on the “best and the brightest” claim that is supposed to bring comfort to the top law schools and top law firms, who promote a self-image that, in the trenches, has long been recognized as utterly meaningless.


Let’s start with the law schools. Everyone knows there are elite schools and non-elite schools, right? Even if you don’t read the noxious US News & World Report law school rankings or their equivalents in other countries, you “know” which are the “best” schools, especially if you graduated from one of them.

Whether it’s chalked up to an American obsession or elitism, we feel compelled to “keep score,” even if we have no clue what our score is based on.  This is where it starts, with the presumption of law school greatness, that the smartest kids go to the best law schools, and we know them to be the best because someone says so.  It’s a self-fulfilling prophesy, since the kids with the best grades and LSATs go to the best schools.  The best lawprofs want to teach at the best schools.  And they feed the great law firms with young lawyers, which brings us to step two.


And that brings me to the final aspect of the “best and brightest” phenomenon that’s so problematic: this belief  that the “top” lawyers are to be found at the “top” firms. I am not saying, not a for a nanosecond, that large well-known firms don’t count among their  ranks some of the finest lawyers the profession has produced. Of course they do. But they don’t own the exclusive monopoly on that particular asset.

But the main reason these firms are considered the best is — wait for it — they recruit only from the best law schools! The Cravath system has been around for so long that the “top” law schools and the “top” law firms now perform a little pas-de-deux, each using the other tautologically to confirm its own higher sense of self (”our graduates go to the best firms”; “we recruit only from the best schools.”)

For those who have worked hard to follow the path most acknowledged, their faith in the truth of the path is unshakable.  And they consider others who been unable to meet their achievements failure.  Those who attend the best schools and are hired by the best firms are, by definition, “the best and the brightest.”

Put aside for a moment that the phrase comes from David Halberstam’s book about those who laid claim to the title proving to have failed miserably; a ignominious title of self-aggrandizing, massive failure.  The phrase has been used for so long to signify the opposite of its original intent as to assume the nouvelle meaning.  It’s become a blanket of self-fulfillment that its adherents wrap around themselves to shield them from actual scrutiny. 

Indeed, the obsession and assumption is that law school/Biglaw answers all questions when it comes to legal greatness.  Jordon has had enough of it.  I’ve never accepted it.  Neither should you.  If this means that everything you’ve done, struggled for, fought for, achieved, amounts to nothing, tough nuggies.  The pas-de-deux is not a substitute for proving your mettle.

Recently, a commenter tried to ridicule me by point at my law school, as if the absence of HLS on my diploma proved me a loser.  He could not have missed the mark any worse.  For one thing, after 25 years of practice, I can barely remember my law school.  But more importantly, I am the product of my 25 years of cases, of clients, of causes and arguments and verdicts and decisions.  No Harvard diploma would save me from a career of lost cases.  No lack of a Harvard diploma changes the victories, successes and lives saved by my work. 

As it happens, my first civil trial was against an older lawyer, a name partner in a mid-sized New York law firm (which would be considered huge almost anywhere else).  During the preliminary jousting, my adversary announced that I, unlike him, had obviously not been an editor of the Harvard Law Review.  I responded that he was quite correct, and yet I fully expected that the decision would be a product of the law and evidence rather than my adversary’s pedigree.  The judge laughed loudly and told my adversary to move on.  The judge was an alumnus of the same law school that I attended, as it turned out.

There is some need that humans have to possess status unrelated to performance, a shorthand method of letting the world know how great we are without having to prove it.  It’s the hallmark of Biglaw, and its pas-de deux with the great law schools.  It no doubt makes those whose employment starting dates have been deferred feel better about themselves as they wonder how, having done everything right, it now feels so horribly wrong.  Of course, if they want to know what wrong feels like, just wait until they wear their butt image in the seat of the firm library while writing the same memos that their predecessors wrote for the past 5 decades.

Criminal defense lawyers present a curious contrast to the Cravath system.  By CDLs, I don’t mean the faux white collar kids, fresh out of the United States Attorneys offices, trotted out to CEOs under indictment as “insider” experts.  I mean lawyers who actually have the competency to defend those accused of crimes, regardless of the color of their collars.  While there are a few firms that try to mimic the Biglaw approach with the pretense of greatness, they are notable for their fine reputations and usually losing results.  But they have “resources”, which brings comfort to corporate types who need to believe that bigger is better.

A real CDLs law school or firm reputation means nothing.  We prove our worth one case at a time, one client at a time.  What we did yesterday, or for the other guy, means nothing to the human being we stand next to today.  Our wall of parchment doesn’t buy a single vote on the jury.  No comfort is taken by wearing our rep tie to court, as if the government machine will quiver when they get a whiff of our importance. 

Jordon points out that there is no correlation between the tests that open the doors to the great law schools, and hence the great law firms, and the skills that make a great lawyer.  This truth is painfully, no brutally, clear in the trenches.  Whether you’re 10 minutes or ten years out of Harvard, it’s meaningless.  Either you can cross-examine a federal agent to tears or you can’t. 

Unlike Jordon, however, I believe that the Cravath system is largely a fraud.  I’ve seen lawyers from the bottom of the barrel law school beat the crap out of a witness.  They don’t teach you how to do that at Harvard, and my experience is that the best and the brightest don’t have the killer instinct that a lawyer who has had to fight and claw his way possesses.  I’ve seen lawyers who aren’t brilliant, perhaps even not particularly smart, demonstrate unbelievable skills in the courtroom.  I’ve asserted that brilliance is often a handicap for lawyers, taking up that space in the brain that might otherwise be filled with an understanding of human nature.  Gut instinct means a whole lot more at trial than a working knowledge of case citations or the evidentiary rule numbers.

This makes me a heretic.  So what?  When a lawyer stands in the trenches questioning a witness, arguing a summation to the jury, no one cares what law school he went to.  Not every lawyer from a Tier 39 law school turns out well.  Not every lawyer from a Cravath does either.  But if I had to pick one to stand next to me, I wouldn’t ask what law school he went to.  And I wouldn’t pick the partner from Cravath who has tried 3 cases when I could get a real lawyer who has tried 300 and proven that he’s got the chops.

Was It The Cop Or The Taser?

When Brian Cardall’s wife, 6 months pregnant, dialed 911, she couldn’t have expected to end the day as a widow.  Cardell, a doctoral student in molecular ecology, had an episode of mental illness while passing through Hurricane City, Utah on his way home from his parents.  His wife called for help.  Things didn’t turn out well.

“During the incident, a Hurricane City Police officer deployed a Taser and the subject lost consciousness,” Undersheriff Jake Adams, of the Washington County Sheriff’s Office, said in a prepared statement. “The subject was treated within moments by EMS personnel, but was pronounced dead after being transported to the hospital,” the statement continued.

According to a witness, Cardall removed his clothing and stood on the side of the road, as if directing traffic.

The woman says Cardall was calm; he’d taken off his clothes and was waving his hands as if he were directing traffic next to the officers on the side of the road.

“As I looked back, he was still standing there. The kids looked back. He was still standing there. He was not running at all the whole time I was driving,” the woman said.

She was able to view the scene for about a minute and didn’t see Cardall behaving aggressively toward police.

Not exactly worthy of death.  But that’s a disingenuous statement.  I’m sure the officer had no intention of causing Brian Cardall any harm.  After all, he was using less-than-lethal force.

Taser International is defending their safety record, saying no device is 100 percent risk free, but its safer that other options.
When it comes to the appropriate time to use a taser, each law enforcement agency has it’s own policy.

Hurricane police are not commenting yet use a general use of force police when in the line of duty, similar to the Washington County Sheriff’s Department.  “In the Sheriff’s Office we consider the taser to be a less lethal weapon so in our use of force continuum, we would put it on the same level as pepper spray,” says Adams.

Taser International’s statement, however, is most disingenuous.  The officer involved, aside from likely having inadequate training in the handling of mentally ill individuals, was led to believe that a Taser is a quick and easy way to deal with anyone for whom reasoning fails.  If you can’t order them to do what you want, there’s always the Taser.

The problem is the Taser.  It’s too easy.  It’s the “go-to” tool for anything that might otherwise require some patience, thought and discretion.  It’s marketed that way, and used that way.  Why try to calm down a mentally ill man when you can immediately subdue him?  Why waste time when you have a magic weapon that fixes problems in a flash?

Before Tasers, the choice was limited.  Shoot to kill or be forced to physically beat a person.  The former had reporting consequences, and the latter took a certain degree of personal connection that most cops won’t want when dealing with a non-violent or otherwise non-criminal person.  Sure, they will happily beat the perp, even if just for fun, but to physically harm someone perceived to be innocent is a harder, more personal, problem.  Now we have Tasers.

It’s too late to change the mindset about Tasers, I suspect.  Not for the officer who will live with the fact that Brian Cardall died at his hand.  Not for the officer who will think of the child born without a father because he couldn’t spend the time to wait out the episode and gain control without using a weapon.  The officer will live with this for a long, long time, as will the Cardall family and the unborn child.  But police everywhere else will shrug this off as the anomaly, the thing that will never happen when they use a Taser.

Tasers.  They are just so easy.

H/T Injustice Everywhere (@InjusticeNews)

 

No, He Doesn’t “Get It”

One of the saddest situations occurs when someone who is mentally challenged crosses paths with the criminal justice system.  It’s simply not constructed to accommodate such people, and the many factors that comprise the structure of the law, from definitions of crimes to purpose of punishment, just don’t apply properly.  But that doesn’t stop the system. 

From MSNBC via Doug Berman :



[Aaron] Hart has an IQ of 47 and was diagnosed as mentally disabled as a child. He never learned to read or write and speaks unsteadily.


Despite being a target of bullies, he was courteous, well-behaved and earned money by doing chores for neighbors, supporters said. His parents say he’d never acted out sexually.

Until one day in Paris, Texas, Hart, 18,  was found fondling his 6 year old neighbor.  After trial, the jury spoke the community, demonstrating its understanding of what is proper in addressing the needs of a severely retarded young man.  They returned sentences on the 5 counts charged of three 30 year sentences and two 5 year sentences.


Jurors said they sent the judge notes during deliberations in February, asking about alternatives to prison, but didn’t get a clear answer. They believed the judge would order concurrent sentences, jurors said.

This sentence is staggering.  So the choice was between a 30 year sentence and an alternative to prison?  Even assuming concurrent sentences, there are a whole bunch of numbers between zero and 30, any one of which would have been better.  But if the jury’s solution is distressing, consider the judge’s:



Lamar County Judge Eric Clifford decided to stack the sentences against Hart after jurors settled on two five-year terms and three 30-year terms, The Dallas Morning News reported Wednesday. The judge said neither he nor jurors liked the idea of prison for Hart but they felt there was no other option.
Add ’em up, and it’s your basic 100 year sentence.  In what rational sense can a judge, on one side of his mouth, claim he didn’t like the idea of prison, but then run the sentences consecutive to end up with a century?  Perhaps I lack a basic understanding of Texas logic, but this makes no sense whatsoever. 

What belies this nightmare is a gross misunderstanding of the nature of mental disability.  Make no mistake, with an IQ of 47, Aaron Hart is profoundly mentally retarded.  People don’t like to use that phrase, as it makes mental retardation appear ugly and undesirable.  Guess what?  It’s unfortunate that it exists, but it exists.  That it hurts feelings is an unfortunate, but sometimes necessary, by-product.  There is no coloration to Aaron Hart’s world that will make it the same as others, to allow him to share the understandings that others in society come to inherently recognize.  This kid was severely retarded, and to consider him in any other light is absurd.

But then, even mentally retarded teens have hormones, giving rise to sexual urges they don’t understand but feel compelled to do something about.  For Hart, it’s not like he could ask out a cheerleader and borrow dad’s car, hoping for the best.  He manifested his sexual urge in a wholly wrong and horribly improper way.  For the child fondled, Hart’s IQ was irrelevant.  But for the criminal justice system, it’s at the core of our purpose.

Did Hart act maliciously, comprehending the wrongfulness of his action?  He couldn’t do so even if he wanted to.  It was beyond his ken, completely outside his understanding of the norms of behavior.  To prosecute him as if he understood and meant harm is to ignore every purpose of the criminal justice system and undermine any sense of legitimacy to the use of police power.  They beat up a retarded teenager because he behaved like a retarded teenager. 

Certainly, Aaron Hart needs to be taught with utmost clarity that he cannot touch a child at any time, or anyone else without their permission.  The parents of other children who are mentally retarded need to learn the problems that hormones will bring for their children, and teach them as well to behave properly.  But to sentence a mentally retarded teenager to 100 years in prison serves no purpose whatsoever.

At least we’re supposed to feel better knowing that neither the judge nor jury really wanted to do it.  Even though they did.