Monthly Archives: June 2009

Your Family, Unwitting Stars

At Lowering the Bar, Kevin Underhill posts the rather bizarre story of how a family’s Christmas photo ended up gracing the front window of a grocery store in Prague.

Reports this week said that Jeff and Danielle Smith, of St. Louis, had learned that their 2008 Christmas-card family photo was being displayed in the window of a grocery store in Prague. Like the Taster, the Smiths learned this only by chance, after a college friend visiting Prague happened to see their life-size images enticing Czechs to buy groceries.

Now it’s one thing for a model to find out years later that his lovely face is on the Taster’s Choice label. After all, at least the photo was of someone who chose to have his image shown to millions. But absent a Christmas list the length of Harry Lipzig’s, this was not in the plans for the Smiths of St. Louis.

This goes beyond issues of online privacy, into issues of online sanity. Every photo that’s openly available on the web is subject to being used, repurposed as some call it, by anyone anywhere for any use they choose. It’s essentially two clicks away from celebrity, or notoriety, or commercial exploitation. And chances of your finding out about it are slim. I mean, Prague, of all places. Not the locale of the Smith family’s last vacation.

Funny as this may seem on the surface, it’s filled with problems that may not be easily anticipated. Initially, there is little to nothing you can do cross-border to stop someone from using your image for their commercial purposes. You can retain a lawyer from the country where the use originated, but that involves costs and laws that may not reflect anything you think are sensible, usually problems that present an insurmountable barrier to action. It’s not fair? That’s right, it’s not.

Even when the use occurs within the United States, those who willingly place their image online and become part of a story of public interest are subject to fair use, allowing others to take your photo and display it in places you might wish it wasn’t. It’s happened here. For public figures, everything is fair game.

While Kevin’s story is, thankfully, pretty funny and ends on a nice note, there is a far more insidious story lurking behind your online photos. Ten minutes with photoshop and the two lovely children in the photo can have their angelic faces attached to naked bodies engaged in horrible sexual contact. If you think it’s troubling to find your family as a blown-up come-on for a Prague grocery store, don’t even try to imagine how it would be to find your children’s heads attached to pornography.

If you think it would be incredibly cool to see a pic of yourself or your family go viral on the internet, or have no issue with someone halfway around the world exploiting your photo for commercial use, then perhaps this is just silliness to you. Post whatever foolish pics you want on your Facebook page, and let that image of your swilling booze with ten of your best half-naked friends engaged in behavior that your father will never know about become way your dream employer views you when he does a 12 second background search. That’s your call.

But as you post photos online, bear in mind that other people who happen to be in your pics, and especially children, yours or someone else’s, may not want to end up on a billboard, or worse. Understand what you’re getting into and use some judgment.

How Is She Supposed to Act?

Amanda Knox, the American student on trial in Italy for the murder of her roommate, is scheduled to testify today. The case is a travesty from the word go, for far more reasons than a blawg post can contain. So much is different in the Italian legal system, where many of the protections we take for granted, or rail about when failed, simply don’t exist. It’s not that it’s an unjust system, as much as it’s not our image of a just system. No, it sucks.

But there’s one aspect of the “proof” against Knox that is eerily reminiscent of a common effort to convict here in cases where the evidence of guilt is missing: Character assassination. In the Knox case, part of the evidence of her guilt is that she failed, in the opinion of the police, to behave the way they think she should have after she was told of her roommates death. She didn’t do it right.

This brought back a rush of memories for me, as I can vividly recall being asked for my advice by a client years ago as to how to behave after the death of a spouse. There’s no book on the subject, no rules to turn to for answers. Miss Manners never touched on the subject of how to behave after an alleged murder so as not to appear “inappropriate”. I certainly couldn’t answer the questions.

The police, however, seem to know exactly how people should behave. Where they got their rules from I don’t know. When asked, I was told that it was based on “typical behavior.” This was unsatisfying, both because I don’t believe it, that there is any typical behavior, and because it fails to account for the fact that we are all individuals and react differently. The cops scoffed. They knew. It never ceases to amaze me how much they know. They know everything.

As is normally my way, I place the onus on the judge, as gatekeeper of trial evidence, to preclude testimony that is facile and baseless. I’m often disappointed in how wide the gate swings open. One of the great ironies of trial work is that the less evidence of guilt there is, the greater the latitude of a judge in allowing bad evidence. In other words, the scrutiny is reduced in direct inverse proportion to the extent of viable evidence. It tends to make weak prosecutions more dangerous, as they are bolstered by increasingly unreliable evidence. And of course, unreliable evidence is the stuff that jurors love best. It comports with their decision-making abilities, and satisfies their prejudices.

So instead of hard evidence, of the sort that can be challenged and questioned and disputed, the case is made up of soft, ever-flexible evidence about the police’s perception of how someone acted. There’s no way to cross-examine a witness on this, as it’s all about personal opinion, colored testimony, vague yet damning characterizations. And the jury has no way to assess this testimony. They don’t know what the “typical” behavior should be. It’s not like a lot of us have the experience behind us. If the cops are allowed to say so, how is a juror supposed to disagree?

So why doesn’t the defense put on its own expert to testify what the typical behavior should be? Ah, because that wouldn’t be material. The police are testifying that the defendant’s behavior was all wrong. The defense expert would be testifying as to why the defendant’s behavior is not inappropriate. It’s speculative. It’s argumentative. It’s without factual basis. Take your pick.

There are two things you can count on when you hear it said that the defendant failed to act appropriately. First, it’s utter nonsense, since we are all the product of a different mix of psychological influences and personal motives, none of which are known by those who would judge the propriety of our conduct. Second, it means that the prosecution has no real evidence and is constrained to reach into the gutter for garbage evidence.

And remember, the worse the evidence, the wider the gate swings open.

The One-Dimensional Defendant

Rick Horowitz at Probable Cause, the blog with the really low standard of review, is still working on life in the gangland trenches. He’s compiled a set of rules for how to be a police expert on gangs, a subject that he’s been drilling home for a while. While noting that his rules won’t make the reader, or the criminal defense lawyer, an expert in anything under the sun, it’s more than sufficient to turn your ordinary cop into an expert on gangs for the purpose of testifying in court. Talk about a really low standard of review.

Rick’s first rule is the one that grabbed me.

Rule #1: You are testifying about an evil, vile, lowlife gang member. They’re all the same.

If a slimy defense attorney tries to humanize her client, you must do what you can to resist. Any ordinary emotions, motivations, or other reasons for the gang member’s behavior must be explained away. Better yet, see if you can twist normal emotions into something horrible.

Slimy. That pretty much covers it. Like slugs. Or weasels. Or sluggy weasels (weaselly slugs?). The police are there to protect all the good citizens who have yet to be tasered from the gang members. Any effort to impede this goal from God is itself evil. And that’s why Satan has sent criminal defense lawyers to court, to block the saintly efforts of cops.

Obviously, the rhetoric is ridiculously hyperbolic. Some gang members are indeed bad people who have done bad things. Some alleged gang members aren’t gang members at all. A cop may say one is, and may well believe it’s true, but that doesn’t make it so. I know, it’s hard to imagine that a police officer could be wrong, but it happens.

Rick’s problem isn’t with cops doing their job, but the twisting of reality to accomplish the task. To the police gang expert, every breath the alleged gang member takes is for the benefit of the gang.

Did he kick a dog because it yelped and startled him when he accidentally stepped on its tail? No! Weren’t you listening?! That might be a normal immature human reaction. This dude kicked the dog to earn respect and to benefit a criminal street gang. If he let people think that he wouldn’t enforce the rules on respect in this instance, the next thing you know, he’d be a laughingstock and gang members would come from as far away as New Zealand just to beat him down and laugh at him.

In other words, the defendant must be a gang member because whatever he did, according to the police expert, is definitional proof and inherently connected to gang membership. Rick gave some additional examples twitting with Packratt, of Injustice Anywhere fame, using the subject of tattoos. If a defendant has a tattoo, the expert will testify that tattoos are “brands” typically worn by gang members. If the tattoo happens to say “Tiffany”, then the testimony is changed ever so slightly to accommodate, by the expert then saying that gang members typically brand themselves with the names of their girlfriends. You get the message. No matter what the evidence, the defendant can’t win. It’s always connectible to being a gang member, according to the expert.

The problem, of course, is that defendants, like cops, aren’t one-dimensional. Some things they may do wrong, but other things they do are just ordinary human acts, with no deeper significance or secret meaning. Just regular stuff like a regular person might do.

A defendant may even do good at one moment and bad another. Like the cop who will tase a 72 year old woman one day and save a kitten from a tree the next. We’re human. They’re human too. Except to the gang expert wearing the uniform.

The justification for this manipulation of truth is that the police officer who arrests and pursues the prosecution of a person he believes to be a gangbanger is that he’s taking one bad dude off the streets. It’s for our benefit. He’s protecting our safety, whether we want to admit it or not. The problem, of course, is that through his false expert testimony, he’s reducing a trial to a farce, and has set himself up as judge and executioner. He knows best, and the rest of the process is just a weigh station on the road to the big house, something to pass through to get to the ultimate goal.

That cops play this game with their expert testimony, converting a human being into a one-dimensional gang member, isn’t really much of a surprise. The question that nags me is why judges cooperate with this farce. If they know better and still allow it, they have no business on the bench. If they don’t know better and actually believe this nonsense, they have no business on the bench. But then, judges are human too.

So You Think You Can Judge

The question of how to select the best judges has long stymied lawyers and academics alike. Politicians, on the other hand, have always had an easier time answering the question: Let them pick amongst their friends and supporters. In coal country, a new answer arose until the Supreme Court’s Caperton v. Massey decision: buy the bench with a ton of cash.

But Ken Lammers at CrimLaw has been working on an alternative, and has clearly put in a lot of time thinking outside the box. He’s come up with a very interesting proposal. These are the rough details, and Ken’s fleshed out the proposal far more than appears here, so it’s worth your time to go straight to the horses mouth to get the full idea.

Initially, the possibility of becoming a judge must be an opt in choice. If an attorney is interested in becoming a judge he should be required to have taken a test similar to a Bar exam within a set period of time prior to the judicial position becoming open (3 to 5 years probably being the best time frame).

Next should be peer evaluation. Members of the Bar who practice in the jurisdiction wherein the candidate would be eligible to become a judge should be confidentially polled as to their perception of the candidate’s demeanor, perceived knowledge, and ability to communicate.

Finally should come an examination by a group of judges. These judges should not be from the area of the State wherein the attorney practices – preferably not even from the same half of the State – and should not know the lawyer . . . The candidates with the top 5 combined scores should be interviewed and the judges should score the candidate on his demeanor, ability to communicate his ideas, and apparent ability to apply legal knowledge.

Think about it. It’s quite good. Merit based, with competence as tested by objective and subjective means. No, it’s not perfect, and can be picked apart at both of the subjective legs, since peer evaluation might put tough prosecutors at the mercy of former adversary defense lawyers or vice versa. Moreover, a zealous advocate might not be perceived as having the demeanor necessary to be a judge, when it’s somewhat unfair to take stock of a person in one position and apply it to another.

But consider the imperfections in light of a system that is far less perfect, far more prone to favoritism, leading to lazy, nasty, incompetent people sitting in judgment of others. The idea is to build a better mousetrap, even if there can be no perfect one. It seems that Ken’s process is far, far better than either the current elected or appointed systems that are used. The former, elected judges, is a joke of the worst order, The latter is rife with abuse. Even a moment’s thought about the current options makes Ken’s idea seem glowingly better.

I can hear in the back of my head a guy like Mark Bennett saying, anyone who presumes to judge another person isn’t fit for the job. Perhaps, but it defeats the point. Someone is going to want the job, and the question is whether she gets it because of competence or connections. We can decry anyone interested in judging, but it doesn’t move us forward since there will be judges in any event, and the problem is to get the best qualified people in position.

Imagine a judiciary built on ability rather than friendship or political contributions. I don’t impugn all judges, as there are many excellent, capable judges on the bench. And there are some mutts. Mean spirited and ignorant, clearly biased and devoid of soul. People who have had the experience of dealing with a bad judge leave with a hatred of the law and the system. It’s not just because they lost their case, as I’ve seen good judges send losers away with a better understanding of the law and a sense that, while they lost, they had their day in court and were given a fair hearing.

All-in-all, I think it’s a better system for selecting judges than I’ve seen anywhere. However, I doubt we shall ever see its like.

Someone will cry, why not? Aside from the fact that the institution does not change direction easily, and the love that official people have for doing things the way they always have, there are strong vested interests at stake here. Debts to be paid. Power to be managed. Even the academics will ignore a better mousetrap if one of their own didn’t come up with it, because ideas from trench lawyers like Ken are too declasse to be given serious consideration.

But Ken’s onto something here. And if the powerful and brilliant people of our nation were honest, they would give the Lammers Method some hard thought.

As Blatant As It Gets

More than a year ago, a car slammed in the police cruiser driven by Nassau Police Officer Kenneth Baribault, leaving him with massive brain injury and paralysis on his right side. It was most assuredly a tragedy. But what happened at the trial of the man accused of driving drunk and causing the injury was an outrage of a different sort.

From Newsday:

Baribault, 30, of Nesconset, appeared Tuesday at the trial of Rahiem Griffin, the man accused of drunken driving and slamming into Baribault’s patrol car on May 18, 2008, as he was arresting another driver for drunken driving. But Baribault did not testify. Rather, he was asked to take the stand while his doctor testified to show the jury what he is, and is not, capable of doing.

Could there be a more flagrant appeal to the prejudice and sympathy of the jury? Contrary to this quote, Baribault’s neuropsychologist, Philip Defina, “questioned” him about what he cannot do. The pain of watching this must have been unbearable.

As Baribault, who was brought into the courtroom in a wheelchair, demonstrated almost silently on the stand, some jurors sighed deeply, while others shook their heads.

That tears didn’t well in their eyes is amazing. I doubt that I could have kept a dry eye had I been sitting on that jury. Human suffering is deeply disturbing, and we are all, no matter how hardened, subject to its affect. Which is why this was so fundamentally wrong. Why the prosecution would try to prejudice the jury is obvious. Ethically wrong, but obvious. But why would a judge allow it?

Judge Jerald Carter told jurors that Baribault was being allowed to take the stand only as evidence that he received “serious physical injury” as a result of the crash. He said that “sympathy or empathy” are not to enter into their deliberations.

This is up there in the pantheon of ridiculous trial rulings. As if the physician’s testimony about massive brain damage and paralysis wouldn’t have been sufficient. As if the defense wouldn’t have stipulated that Baribault suffered serious physical injury. As if the jury could disregard the prejudice because the judge told them to.

And what does crusading District Attorney Kathleen Rice, who just happens to be for re-election, have to say about this play to prejudice?

District Attorney Kathleen Rice said what Baribault did Tuesday took “bravery beyond words.”

“Today, he honored the badge,” she said.

What the heck is she talking about? Perhaps Rice misunderstood the question? What at first appears to be an obvious non sequitur is merely another sound bite with no apparent connection to anything beyond mouthing words that she thinks people want to hear.

As to the defendant, Rahiem Griffin, the story discloses no particular reason why he’s chosen to go to trial, or what, if any, defense he’s got to offer. Not having followed the case, I’m unaware of how the case reached this status. Chances are pretty good that he’s gone to trial for no better reason than the prosecution offered him no other option. Plea to the charge and take a sentence of life plus cancer?

But no matter how clear the crime, how strong the proof, how tragic the victim, this is not the way to conduct a trial. If ever there was evidence where prejudice outweighed its probative value, this is it. By a mile. By a thousand miles. It’s not a matter of letting Griffin escape the consequences of his actions, but a matter of allowing a jury to see “evidence”, the only purpose of which is to inflame and prejudice them.

If Baribault “honored” the badge, the district attorney and judge dishonored the law. What an embarrassment.

H/T The Blind Guy

Was P.O. Omar Edwards Left In The Gutter?

As the hand-wringing over the needless shooting death of P.O. Omar Edwards at the hands of a fellow officer begins to fade, a report by WABC News’ Jeff Pegues raises an ugly specter. Two witnesses, whose identities were concealed, have come forward.

“We pull up and then we see a cop handcuffing him and leaving him there,” one said.

“They just left him. Didn’t give him no aid. Told the officers not to touch a gun. It was a silver gun. He was about 10 to 15 feet away from his gun,” the other said. “He was just on the floor cuffed. Face in a ditch, in the gutter… They weren’t paying attention to him.”

Of course, after a notorious shooting, it’s hardly uncommon for people to come forward who claim to have witnessed events just to enjoy a moment of fame, or make claims about wrongdoing that rely entirely on their statements. This isn’t one of those situations. The witnesses took videos on their cellphones showing Omar Edwards lying in the gutter, being handcuffed after he was pumped full of bullets, and then ignored.

The question posed is whether the downed officer received the attention he required from the police, or was left in the gutter while the blood flowed and life ebbed from his body. The problem, which Pegues unfortunately leaves unsaid, it that it wasn’t until later, when aid arrived and was rendered, that the cops discovered that they had shot one of their own. Only then did it hit the fan.

What remains behind is the tacit expectation, together with its equally tacit approval, of a process that distinguishes a cop shot from any other black man with gun shot on a Harlem street, Does the NYPD policy support letting suspects lie in the street and die, though cops are entitled to immediate attention? No doubt the policy says otherwise, though the practice may have some difficulty keep pace.

But while WABC story about these two witnesses, who were told to get out of there by cops on the night it happened rather than questioned as to what they saw, is an important piece of new to get out, the fact that nobody thought to question why it’s different and acceptable to leave any person shot, bleeding, dying, in the gutter without attention is astounding. While few of us toiling in the hard, cold trenches are surprised by the fact that police are just a wee bit less concerned with the welfare of non-officers, no matter how much they might deny the fact that they treat an officer down with the care worthy of a saint, one would hope that the media would know better and report it.

We showed the officials with the district attorney’s office and the NYPD the video. They would not comment.

This speaks volumes, if only the media was inclined to pay attention.

When The Going Gets Tough

Not that there isn’t good reason for those coming out of law school to gripe these days, as it certainly isn’t their fault that the job market disappeared and everything they spent the last seen years working towards is now a dead issue, but it won’t get you anywhere. Seth Godin offered some suggestions :

How about a post-graduate year doing some combination of the following (not just one, how about all):

Spend twenty hours a week running a project for a non-profit.
Teach yourself Java, HTML, Flash, PHP and SQL. Not a little, but mastery. [Clarification: I know you can’t become a master programmer of all these in a year. I used the word mastery to distinguish it from ‘familiarity’ which is what you get from one of those Dummies type books. I would hope you could write code that solves problems, works and is reasonably clear, not that you can program well enough to work for Joel Spolsky. Sorry if I ruffled feathers.]
Volunteer to coach or assistant coach a kids sports team.
Start, run and grow an online community.
Give a speech a week to local organizations.
Write a regular newsletter or blog about an industry you care about.
Learn a foreign language fluently.
Write three detailed business plans for projects in the industry you care about.
Self-publish a book.
Run a marathon.

He concludes the list with this gem: “Beats law school.” This apparent throwaway line is quite meaningful. How many of you really want to be lawyers? How many of you even knew what lawyers did before going to law school? How many of you really know what lawyers do as you walk up to accept your diploma?

No doubt some fully understood what they were getting into, and had goals and aspirations to be a lawyer. But we all know that law school is the place of last resort for students who can’t stand the sight of blood or suck at science. So now what?

After Godin gave great advice, get off the couch, stop whining and do something useful with yourself, he became the butt of the disaffected. Ah, how quickly they turn on you when there’s no easy answer in sight. Calling his response “Tough!”, Seth wrote:

I got some fascinating responses to yesterday’s post.

A few were from entitled college grads. They basically asked, “With all this debt, how can I possibly do what you asked? Sure, some people might be able to do this, but I have no choice but to take a menial job, look for work and then party at night so I can have some friends.”

The first thing that should register is Seth’s use of the word “entitled”. That’s right, kids. I didn’t invent this stuff. I’ve just done my small part to smack you in the face with it. For your own good. The point is that your unhappiness with the way life is playing out doesn’t change the fact that this is the only life we’ve got, and you either make the best of it or complain that it’s just not working for you. The former offers you an opportunity to do something to improve your lot, even though it won’t be quick and easy, and offers no guarantee. The latter offers a guarantee of unhappiness and failure, because stamping your feet just isn’t going to do the trick.

Seth goes on to say that he heard from more people who got the message.

More, though, were from people who said, “Yes! I can do this. I’ll sleep on a friend’s floor and eat beans and rice every night if I have to, but this is as much a part of my education as taking English 101 was.” I heard from three recruiters who violently agreed with this plan–who else would you hire?

While there is an abundance of Slackoisie roaming the internet, many with law school diplomas, claiming to be marketing consultants in the hope that they can get paid for mouthing irrationally exuberant optimism, couple with vague or simplistic assertions of how you can make a million and still be at the bar for happy hour, have you asked yourselves why they are huckstering for your last $5 rather than running the most successful young law firm in town? How does someone who has never had a successful business in their lives tell you the magic secret to success? And for those who claim that they did indeed have million dollar practices, why have they left them to spend their days trying desperately to get your last $5?

Many have argued, and some quite vociferously, that this isn’t a generational problem. In some ways it’s not, as every generation has had those who thought success was a magic trick, responsibility a burden that only fools carried and over-developed sense of their own worth. The difference this time around is that it’s the norm, the accepted frame of reference for a wide-swathe. I’m not saying this to ridicule youth, but like Seth Godin, to encourage the Slackoisie to pull it together, grow up and get to work.

Consider Seth’s query, “who else would you hire?” Picture in your heads sitting across from the hiring partner and telling him that your goal in five years is to be in the corner office, driving a BMW and out of there by no later than 5 every day. Would you hire you?

We’re sorry that this advice isn’t pleasing to you. We’re sorry that the world (the one you blame us for thrusting upon you at a time when you were supposed to due a good time) isn’t the one you expected. But as Seth says, tough. Blame us all you want, but it doesn’t change anything. You won’t find a satisfying life by complaining, no matter how strongly you believe your complaints to be valid.

When Adrian Dayton recently called me the Grumpiest Boomer on the Internet, I was honored. But it’s quite possible that I will have to share the title with Seth Godin. I don’t think he’s surpassed me yet, but it’s close.

A Dollar and A Dream

There’s a new kid in town in the blog-o-rama marketing effort, Avvo Blogs. That’s right, the same Avvo that rated you a 2.3 because you’re young and dress funny is now offering you the chance to buy a blog and tell them what you think. And this time, Avvo’s effort to monetize itself seems right on target.

Not always a fan of Avvo’s ideas (like the nasty Avvo Answers), this seems to be a great fit for Avvo, neither competing with its proclaimed core mission of providing the consumers of legal services with unbiased information about lawyer nor pushing ne’er-do-well lawyers to provide bad information to people who pay what it’s worth to get their name highlighted.

What’s most interesting about the concept is how Avvo has set itself up as the low-priced alternative to Kevin O’Keefe’s Lexblog.

With Avvo Blogs, you can blog for less than $1 per day. You shouldn’t have to spend a truckload to showcase your expertise in a professional manner.

Many companies will try to sell you “more-effective” blogging technology for thousands of dollars per year, but few bloggers will need such a fancy blog. Think of blogging like buying a suit. You can spend thousands of dollars on a custom-made suit, or you can buy one off the rack at Macy’s that your client’s will love just as much. Clients will focus on the brains in the suit, not whether you have hand-stitching on your lapel.

There are already blogging programs out there for free or low priced, substantially lower than the marketing chestnut of $1 a day, but they have plenty of drawbacks and require the blogging lawyer to put in the effort to make it work for a legal blogger. In contrast, Kevin offers customization that will make the blog of the worst lawyer in town look like a winner. It’s a fascinating conundrum, pitting the cheap generic against the finely tailored suit. If you’re a lawyer who is intent on blogging for business, which one should you go for?

Some may feel that the cheap generic approach is a poor reflection of their practice. As Avvo blogs catches on, and more of them appear, it stands to reason that the generic appearance of your blog will become immediately apparent, and make you seem inordinately common. But you get what you pay for, and not everybody is prepared to pay for the good stuff.

Of course, these are programs and templates. Nobody offers a blog that anyone will care to read. That part’s up to you. If you’re boring or flaky, no program is going to help. If you’re a flagrant marketer, the most perfectly tailored suit won’t fit. And if you just don’t bother to put in the effort to create worthy content, a dollar a day is money in the toilet.

For the record, I’ve been hanging out in the blawgosphere for a while now, and have watched a lot of blawgs come and go. Most lawyer’s don’t have it in them to keep a blawg alive. They start out all full of energy, then slowly peter out until one day they simply disappear. It’s happened with some pretty good blawgs. It’s happened with some truly awful blawgs. Most blawgs fall into the latter category.

If you think that your marketing effort might not merit the big bucks, but are willing to take a chance for a dollar a day, then you’re the guy Avvo Blogs is looking for. Just don’t sign up for too long a stretch if you really aren’t all that interested in blogging, or if you’re sole purpose is getting great new cases and making tons of money. You’re unlikely to be the sort of person who can keep it going for the long hall, and it’s not likely that the blog is going to bring in enough business to pay for itself, no less make you fabulously wealthy. But for a $1 a day, at least it won’t break the bank.

And as a parting thought, my blawg is about as low rent as it gets as far as appearance and programming go. But it hasn’t held me back.

Sentences Don’t Have to Be Arbitrary Anymore

A call came in last week from a seriously distraught woman, the wife of a newly minted guest of the United States Bureau of Prisons. “It’s so unfair,” she sobbed. She went through the 12 steps, from “he did nothing wrong” to “it’s not like he murdered somebody.” I understood the pain she felt, and knew from having heard this conversation many times before that there was nothing I could say that would help her to understand. It wasn’t rational, but emotional. And that’s the problem with sentencing.

Via Doug Berman, Dan Markel (of the PrawfsBlawg Markels) has a new abstract up at SSRN with one of the best titles I’ve ever seen, Luck or Law? The Constitutional Case Against Indeterminate Sentencing. The first three words are classic, and sum up the sense that permeates the public’s understanding of criminal sentencing. It similarly creates the problem, since it feeds the false sense that there is a solution to the problem out there somewhere.

In the majority of states indeterminate sentencing schemes prevail — under which the decision for whether a person serves anywhere from one year to a life in prison for a given crime is left largely to the unfettered discretion of a judge. Indeed, ever since the Supreme Court decided Booker v. United States and thereby rendered the federal sentencing guidelines “effectively advisory,” many state courts have read Booker to lend an imprimatur upon their indeterminate sentencing schemes. Thus, in many jurisdictions, virtually no restraints upon judicial and/or executive discretion exist to ensure that similarly situated offenders convicted of similar criminal conduct will, within the same sovereign jurisdiction, receive punishments that are roughly similar to each other.

Certainly, this was the scheme behind the sentencing guidelines, and one that even criminal defense icon Norm Pattis has endorsed for his state of Connecticut in order to stay the tide of wildly differing sentences for similar conduct. Lets face facts, there is an element of arbitrariness in every indeterminate sentence imposed. What makes a crime “worth” a sentence of 20 years to one judge and 10 to another. And where the heck does a third come up with 13 years? Why not 13 years, 3 months, 12 days, for that matter?

But the counterpoint to the argument against the arbitrary imposition of a length of time in prison is individualized sentencing, where the legitimate purpose of imposing a sentence are based on the person as well as the crime. The Guidelines allowed for this in extreme cases, though the determination of what fell outside the heartland of the guidelines was again an arbitrary call. Within the Guidelines, individuals with wildly differing circumstances, needs, fault and even crimes were treated as the same. And let’s not even touch the subject of acquitted conduct sentencing, which muddies the waters beyond repair.

I doubt that anyone would argue in favor of arbitrary sentencing, yet if we’re honest about it, sentencing by its nature is arbitrary. Typically, the victim sees the sentence as too lenient. The defendant’s family sees the sentence as too harsh. Only the judge sees the sentence as just right. And yet sentences defy explanation for their precision. There is simply no magic basis for saying that a sentence of one year, as opposed to two, is proper to satisfy the legitimate purposes of sentencing.

The gist of the Sentencing Guidelines was to take a survey of how judges, given vast discretion to impose whatever sentence they believe proper, came out and develop a norm based on the nature of the crime, the harm caused (or alleged to be caused, since the Guidelines largely rely on fictional harms as decided by the prosecution), and the defendant’s prior criminal history. This covers the basics in a rough justice sort of way. It should have resulted in a type of consensus value for sentencing, and received widespread acceptance. It never did. Not even the judges like it, though they were ultimately forced to adhere to it by the Supreme Court until the Supreme Court ~~changed its mind~~ clarified itself.

Having not read Dan’s article (largely because it’s unavailable yet and secondarily because I’m trying to find time to read Dan’s new book, Privilege or Punish: Criminal Justice and the Challenge of Family Ties), I don’t know where exactly Dan comes out on the subject, though it would appear likely that his thesis is that giving judges too much latitude in sentencing is unconstitutionally arbitrary. If so, he would be right, of course. As would be the person who argued that giving judges too little latitude in sentencing is unconstitutionally arbitrary.

For this reason, I propose to develop for judicial use the Sentencealyzer 5000. A defendant blows into a straw protruding from a little black box, which then shows a number on an LCD screen with the correct sentence to be imposed. I would like to tell you how it works, but that’s proprietary information. This will eliminate arbitrariness from sentencing, whether in terms of disparate sentences for roughly the same crime as doled out by different judges, or the same sentence for roughly the same crime as applied to different defendants. Finally, a solution.

Big Words, Little Words, Bad Words

The commentary surrounding Ed Whelan’s ill-advised outing of his nemisis Publius raises interesting questions about whether credibility is established solely through the merit of one’s writing or whether attaching a name is necessary. This made me think about both the nature of the content and the manner of presentation. This led me to Mister Thorne.

Mister Thorne has a blog called Set in Style. Before you ask, “Mister” is his first name, not his formal title or an affectation. Don’t ask me. I didn’t name him. In any event, he’s an editor and his blog is dedicated to helping lawyers present themselves in the best possible light through their writing.

Thorne (as he prefers to be called) posted about an article by Daniel Oppenheimer, professor of psychology at Princeton.

Dr. Oppenheimer reiterates what few attorney-authors can believe: readers consistently judge the writer who uses plain, clear language as more intelligent than the writer who arranges obscure terms in convoluted constructions.

To the extent that the content is internally credible, it is a function to some extent of the ability to use ordinary language in ordinary form. This idea flies in the face of those who believe that tossing around jargon, or using $10 words, makes them look smarter. It pains lawyers who, in their attempt to be hyper-precise, make their sentences so long and convoluted as to be both painful to read and far too much work for the reader to decipher. For my part, when someone makes me work that hard, I take a pass unless it’s something I’m absolutely required to read. It’s just not worth the effort.

My own version of this concept is that if you’ve got something to say, just say it. It’s far more effective to take a complex concept and say it simply than muddle it up in prolix, painful language.

But this applies to stand-alone ideas. Regardless of the source, the idea either has merit or doesn’t. When it comes to a basic opinion (e.g., I like chocolate better than vanilla), an opinion is utterly worthless if the writer is unknown. No one cares if you prefer chocolate. Each of us has our own opinion, and no one else’s preference is going to persuade us that their choice is better than ours. Each of us already has enough information to formulate our own opinion, and we don’t need anyone else’s help.

When it comes to more complex opinions (e.g., I believe that Sotomayor has demonstrated inadequate respect for the rights of criminal defendants), dealing with subjects on which we may not have sufficient information to formulate a valid opinion, we are subject to persuasion. The basis could be examples supporting the position, or the credibility of the person offering the opinion. If we tend to agree with the person offering the opinion, or hold that person’s opinion in high regard, the opinion is more likely to matter to us.

Very little of what we read online falls into the category of basic opinion. Much of it falls into the complex opinion category. This is where people get into trouble. When the person offering opinion is anonymous, we have no basis whatsoever to determine whether they know what they are talking about. Maybe it’s a Supreme Court justice opining off the cuff, or maybe it’s a 12 year old hiding in the basement trying to cause trouble. We don’t know. The fallback position is that the content should stand alone, regardless of who’s doing the writing.

Sometimes, the merit of the content is clear, and it doesn’t make a bit of difference who is doing the writing. This is far more rare than advocates of this position realize. Almost every writing of this sort involves a value judgment, which depends on the worthiness of the writer. More often than not, it involves a claim of knowledge (i.e., I read the decision and this is what it says) which can’t be tested. If we are expected to rely on the integrity of the writer, then we must have some reason to trust the writer. That he says so isn’t good enough. That he insists “strenuously” makes it even worse.

The anonymity of the internet lends itself to being a soapbox for those who hold their own opinions in unduly high esteem. There are some incredibly stupid people out there who suffer from the Dunning-Kruger Effect, yet feel compelled to make sure as many people know their thoughts as possible. They get angry when their thoughts aren’t given the respect they believe they deserve. And they believe that their mere announcement of their thoughts, standing alone, mandates that others address them respectfully. It gets tiresome.

Still, I give a substantially greater amount of credence to someone who expresses their thoughts in a clear, simple manner. I have never attributed it to a belief that they are more intelligent, as Thorne suggests, but to the honesty of their position. I’m a sucker for someone with an honestly held belief, no matter how much I disagree with it.

Patrick at Popehat added Obsidian Wings to his blogroll following the outing of Publius. In a comment to his post, an anonymous person offered this observation :

Ed Whelen is white trash.
Why do people think blogging under their real name is courageous?

In law, if you know your shit, you can prove it. Make your fucking arguments.

People who blog under their full names want to be lazy. LOOK AT MY (to my pea brain) BIG NAME. I NEED NOT CITE CASES OR ANALYZE ISSUES. BEING ME IS ENOUGH!

I think that’s being a pussy. Make your arguments. Don’t rely on who you (think) you are to make your case. (Wo)Man up.

Incidentally, I blogged anonymously until my blog was one of the first 8 Law.com blogs. (Later I quit because they cramped my style.) Then I had to out myself. It was no thing. If anything, I got “glory.” Which doesn’t really motivate me. Wow, look at me. I’m a unique snow flake. Whatever.

Now I blog only under my first name. It just spares me drama to not have people stalking me based on my blog posts. Yes, if you Google my name, my blog will be the first result. So people who know me can find my blog. But people who only know my blog need to do at least some diligence in order to find out my real name…. which is still pretty easy.

So I’m a half-coward? LMFAO!

I truly think real-named blogging is self-involved. My blogging has been cited twice in federal judicial opinions. They were “serious” posts on Section 1983 law, about which I’d say I know more than anyone what perhaps Sheldon Nahmod and Erwin Chemersinky.

Allow me to go orgasm all over myself!

Seriously, this shit cracks me up. I’ve had more success when I was blogging as a law student than most people who call others “cowards” for blogging anonymously will EVER have with their blogs.

They can all fuck off.

Get cited in some federal opinions. Then fucking tell me how brave and special you are because you blog under your real name!

The shit that impresses people about themselves truly astounds me!

Plain language? Check. Clear language? Check. Direct, uncovoluted sentences? Check. Presumption of intelligence? Nope. Credibility? Zero. On the other hand, if this was something I decided to write and post for the world to see, I would have done so anonymously too. Perhaps with some effort I could identify the author of this comment, but there is no reason why I would want to do so.