Monthly Archives: June 2009

The Risk of Outing

One debate begets another.  Jonathon Adler at Volokh does the best job of explaining the source:

Over the past two months, Ed Whelan (with whom I blog on NRO’s “Bench Memos”) and a pseudonymous blogger at Obsidian Wings known as “publius,” have traded barbs and insults while debating various issues related to President Obama’s nominations of Harold Koh and Sonia Sotomayor.

Over time, the heat-to-light ratio in the Whelan-publius exchanges increased, and Whelan learned publius’ real identity – a recently minted, untenured law professor. As part of a recent response to publius, Whelan decided to disclose this information in a blog post.

While Adler’s views are decidedly colored by his sympathies (as well as his personal history as an anonymous blogger, Juan Non-Volokh), the set-up portrays the problem of getting into a pissing match when hiding inside a glass house.

It’s long been my view that, in the absence of certain particularly well-justified reasons, anonymous blogging and commenting are for cowards.  How easy it is to throw stones when you bear no responsibility for who or what they strike.  I’m not against stone-throwing per se, when there is a need for strong words and purpose for taking a strong position, but doing so when there are no consequences to be suffered.

But this isn’t a debate about whether one should post online under a pseudonym.  Rather, this is a debate over whether one should “out” one’s pseudonymous adversary, an entirely different issue.

At Point of Law, Walter Olson and Michael Krauss have expressed two very different views.  First came Krauss’ view :

Incredibly, [South Texas School of Law Professor John] Blevins [formerly known as Publius] has defended his anonymous sniping as ethical: he didn’t want to get in trouble with his law school, he didn’t want to embarrass his family, he didn’t want to offend his students. What Blevins didn’t want to do, sez me, is take responsibility for his opinions. When you attack someone by name, you name yourself — we are not in revolutionary times where the original Publius could go appropriately unnamed.

Krauss, incidently, strongly supports Whelan’s views and disagrees vehemently with Blevins’.  But compare Krauss’ co-blogger, Walter Olson, who shares Krauss’ substantive views that Whelan was right and Blevins wrong, but:


I understand why “hiding behind a pseudonym while sniping at a critic who is out in the open”, in Michael’s words, will often provoke wrath, as it provoked Whelan’s. But I can’t go along with the seeming implication that 1) only those of us willing to attach real names to our opinions should consider participating in online controversy; 2) publicly outing hitherto anonymous commentators is the deserved response to their hopes of anonymity;
And more particularly to the punishment Whelan exacted on Bevins:


Wishing that certain personalities would publicly identify themselves, tweaking them publicly for not doing so, or vowing to ignore them until they do, are quite different from triumphantly announcing their secret in public, thus inflicting on them the train of personal consequences they had sought to avoid.
Michael Krauss, in what he describes as his “brief and only response,” states :


This may be one of those areas where libertarians and conservatives disagree. For the former, no fraud or coercion is involved in anonymous blogging and that’s that. [An anonymous blog posting is not necessarily itself a lie, even if the anonymity is motivated by a desire to misrepresent oneself to third parties.] For the latter, arguments are illegitimately launched when they are launched from behind a hood, as it were, unless there is a force majeure involved. We have the moral (not legal — I’m making no argument here about legislating any of this) right to confront our virtual accusers when they confront us, I think. Ed Whelan was deprived of that right until someone (who? I have no idea, but that would be an interesting story) had enough and removed Blevins’ hood.
Frankly, my sympathies lie far closer to Krauss.  There is something seriously amiss with the person hiding behind a closed door while hurling insults.  It’s exacerbated when they lay claim to personal knowledge or insight to support their arguments, but which can’t be known or tested because of their veil of secrecy.  It smells bad.  It smells disingenuous.  It smells like a lie.

Yet, revealing the identity of someone who, whether we agree or not, has decided to conceal his true identity is not merely to discount the pseudonymous bloggers claims, but to do him harm.  Whether we see the harm as great or trivial is immaterial; it’s not our life and we don’t get a vote in another person’s choices, a point missed with great frequency in the blawgosphere.

Was it Whelan’s right to punish Blevins by disclosing his identity?  Absolutely not.  He was entitled to ignore him, to ridicule him, to discount him and to attack his credibility as a person who lacked the fortitude of putting his name to his positions.  But not to punish him.

The unfairness toward Whelan of having a faceless, nameless accuser was beyond question.  But illegitimate arguments from anonymous attackers are legion on the internet, and there are way to deal with them (often to their dismay and disappointment, given their demands to be taken seriously).  Outing them is not the way.  Outing them goes a step too far.  They deserve to bear the risk of public ridicule, but not the risk of outing.  Whelan was wrong to do so.

A Reason To Round Up The Kids

In the swirl of outrage surrounding the tasing of Ryan Smith to compel his “voluntary” compliance with a court order to collect his DNA, we tend to forget about the reasons underlying the general desire of law enforcement to have DNA samples from anyone and everyone they possibly can.  While in Smith’s case it was to compare it with DNA involved in the specific offense, it’s taken from people convicted of crimes, and now people merely arrested. 

British cops, apparently, don’t find that sufficient, according to The Register.


Police officers in Camden, north London, are deliberately targeting kids under-18 for arrest just so their DNA samples can be taken.

The Met denies any such action has taken place, but an anonymous police officer told The Ham and High : “It is part of a long term crime prevention strategy. We are often told that we have just one chance to get that DNA sample and if we miss it that might mean a rape or a murder goes unsolved in the future.

The problem is one of incentive.  Since there’s little in the way of a disincentive to round kids up for the purpose of collecting DNA, and a huge incentive to have everyone’s DNA on file “just in case,” it seems only logical that police would be pro-active in gathering their samples.  No reason not to be prepared, you know.


“Have we got targets for young people who have not been arrested yet? The answer is yes. But we are not just waiting outside schools to pick them up, we are acting on intelligence. If you know you have had your DNA taken and it is on a database then you will think twice about committing burglary for a living.”
Plus, it serves double duty.  Not only does it provide wonderful assistance in identifying the perpetrator of a crime, but it serves the prophylactic purpose of letting kids know that they are now “on file,” easily found and identifiable should they decide to pull a move in the future. 

Oddly, I suspect that many people who learn of this Brit trend will quietly say to themselves, this is actually not such a terrible thing.  Less crime, easier apprehension and identification.  What’s yer beef, Greenfield?

It’s about a value judgment, contrasting personal privacy with governmental intrusion.  It’s about the right to be left alone.  It’s about the government having far too much information about each of us, for it to use for its intended purpose as well as any greater purpose that technology later brings our way.  It’s about our not being in a government databank simply because it makes their job easier.

Oh yeah, and it’s about not arresting innocent kids on a pretext. 

We’ve taken much of our culture from the Brits.  Will we be so cynical as to take our cue from them when it comes to the rounding up of our children to fill the government’s DNA banks?

Another Tragedy, Another Criminal

It’s spurred the Ohio legislature to name a law after her, always a bad sign.  When 2 year old Emily Jerry slipped into a coma and quietly passed away, it was a tragedy of terrible proportions.  An inexcusable combination of incompetence and neglect when a pharmacy prepared tiny Emily’s chemotherapy medicine in a hypertonic saline solution.  And Emily died because of it.

Via MedCity News,


As a result of the incident, the Ohio legislature passed what is now known as “Emily’s Law”, which provided quality control guidelines for pharmacy technicians. Prior to the law, people could obtain employment in a pharmacy lab with barely a high school diploma. Reassuring, no?

For those of us who expect that the kindly fellow in the white lab coat who prepared and provides us with medicine either does it himself, or closely watches those who do, so they don’t poison us, this comes as a surprise.  Who would have thought we needed a law to require them not to be careless, not to allow drugs to kill rather than cure.

But the pain from the death of Emily Jerry demanded something more than a law requiring the obvious.  It demanded that someone pay.


The pharmacy technician in this case, Katie Dudash, was granted immunity in return for testifying against her boss, Eric Cropp.

Eric Cropp, the supervising pharmacist on duty that day, had signed off on the preparation.

According to the Cleveland Plain Dealer, Eric Cropp pleaded no contest to involuntary manslaughter.  He was stripped of his pharmacy license in 2007, a year after this happened.  Now he stands convicted.

There’s no point in straining to think of an explanation or excuse for Cropp’s failure to demonstrate the minimal degree of competence and interest that was needed to save Emily Jerry from death by medication.  Nor does he deserve such effort.  But this wasn’t a crime and he wasn’t a criminal.  It was a tragedy and he was incompetent, negligent and should not be allowed anywhere near a pharmacy.

One of the unfortunately recurring themes is the criminalization of conduct based on outcome rather than intent.  Had Cropp meant to do harm, the story would be different.  Had Cropp voluntarily arrived at work drunk or high, knowingly engaging in conduct that presented a grave risk to patients, the story would be different.  But there is nothing here to suggest anything beyond the fact that Cropp screwed up royally by signing off on a medication that was improperly prepared by a tech.  I don’t care if he was busy or overworked and understaffed (sound familiar, for those who are apologists for indigent defense screw-ups?).  A professional carries a duty, and that duty remains in as full force when busy and overworked as it does when one has all the time in the world. 

Still, simple negligence is not a crime.  Unless some prosecutor decides that it’s his duty to put someone in prison, in which case anything and everything becomes a crime.  And, of course, the prosecutor merely sets the wheels in motion; it’s up to the rest of the system, including the defense lawyers, to make sure that there is no justice.

For those who complain bitterly about the unfairness of medical malpractice, tell that to the parents of Emily Jerry.  But it’s still not a crime, no matter how tragic the outcome.

H/T Walter Olson of Overlawyered

Blaming The Judge For Counsel’s Bad Argument

It’s a particularly odd choice of case to be given such great scrutiny, Ricci v. DeStefano.  Held as an example of why Sonia Sotomayor is unworthy of joining Clarence Thomas on the Supreme Court, despite the fact that it was a unanimous panel with Sotomayor as the most junior of the three 2d Circuit judges:


In the Second Circuit, Judge Sotomayor was the junior judge on the panel, which also included Judge Rosemary S. Pooler, who was the presiding judge at the argument, and Judge Robert D. Sack, who did not attend due to illness.

In the end, according to court personnel familiar with some of the internal discussions of the case, the three judges had difficulty finding consensus, with Judge Sack the most reluctant to join a decision affirming the district court. Judge Pooler, as the presiding judge, took the leading role in fashioning the compromise. The use of a summary order, which ordinarily cannot be cited as precedent, was part of that compromise.

Liptak at the New York Times tries to make something interesting out of a decision that defies real controversy.  But it was little more than a deference decision, no matter how one tries to spin it, ultimately following black letter law and a thorough 48 page district court opinion that was more than adequate to satisfy the outcome.


That sort of race consciousness, she said, may be perfectly lawful. “You can’t have a racially neutral policy that adversely affects minorities,” Judge Sotomayor said, “unless there is a business necessity.”

Try as one might, this isn’t a reflection of some strange devolution into activist racial lawmaking.  It’s the law, and it’s been the law for a very long time.  That non-lawyers, and lawyers who are unfamiliar with discrimination law, are unfamiliar doesn’t render it novel or damning.  You may not like the state of the law, but that doesn’t change what it is.

According to Liptak, it wasn’t the result that was surprising, or improper, but that such an important case resulted in a summary decision rather than a lengthy published decision.  What makes this such an “important” case?  Were all the other thousands of case heard by Judge Sotomayor in her tenure on the Circuit trivial?  One might think so, given the emphasis placed on Ricci, but I don’t for a moment believe that to be the case.

The reason that Ricci has emerged as a touchstone for those inclined to attack peaks through in Liptak’s piece in this “heated” exchange:


“Firefighters die every week in this country,” the lawyer, Karen Lee Torre said. Using the test, she said, could save lives.

“Counsel,” Judge Sotomayor responded, “we’re not suggesting that unqualified people be hired. The city’s not suggesting that. All right?”

That’s right.  It’s the “do it for the children” argument, firefighter version.  When the law is against you, and when the thrust of your position is to ask a judge to turn a blind eye to the Constitution, in this case ignoring the disparate impact of the test on minorities, and neither facts nor reason support your position, then devolve to the nadir of legal arguments, an appeal to emotion and fear.  Judge Sotomayor blew a hole through that effort big enough for a busload of freedom riders to drive through.

But the key to why this case has become a cause celebre isn’t that it involved white applicants failing to get their appointments because the test was tossed for disparate impact; there’s nothing new about that at all.  No-o-othing. Nothing.  The key is the identity of the lawyer who made one of the worst possible, most disingenuous, most insulting and ignorant arguments possible in favor of Frank Ricci.  The key is Karen Lee Torre.

Don’t like the outcome of Ricci v. DeStefano?  Don’t blame Sotomayor.  Blame Karen Lee Torre. 

For those of you who are unfamiliar with that name, allow me to illuminate.  I’ve mentioned her here a couple of times, much to her consternation.  She thinks I’m a meany.  I think she’s a twinkie.  She actually used foul language to describe me, but I’m disinclined to indulge in the same word choices she makes.  I’m too much of a gentleman.

Karen Lee is a rabid neo-con, and I apologize to all rabid dogs who may be insulted by the comparison.  She’s like a lawyer version of Ann Coulter, except not as smart, attractive or persuasive, and that’s coming from someone who doesn’t find Coulter persuasive in the least.  But like Coulter, Karen Lee is a true believer, foaming-at-the-mouth sort of person who will dedicate her life to the destruction of her political enemies.  After she get smacked by Judge Sotomayor for her disingenuous, not to mention idiotic, argument on behalf of Frank Ricci, Sotomayor was written into the enemies column in permanent marker.

Notably, when Ricci was argued before the Supreme Court, they wised up and wouldn’t let Torre near the podium.

With Sonia Sotomayor on the short list of nominees should Obama win the presidency, the neo-con forces had a year to gear up for their attack, giving them plenty of time to hire a flak to promote the cause and find a scapegoat when it all came tumbling down around them with a resounding Senate confirmation.  Who would be willing to sacrifice good name and credibility for such a losing cause?  It would have to be a true believer.  Someone who would do anything to help the cause.  A person who hated Sotomayor.  Where could anyone like that be found?  And so all heads in the room turned to Karen Lee Torre, who, for a brief and shining moment, would be star, a martyr to the cause.

But Adam Liptak, quietly, in the way that a journalist lawyer tries to sneak in an idea so that it’s available for anyone who chooses to see it, plucked this exchange out of the 2d Circuit oral argument to show just what an awful job Torre did in arguing the case. 



[Judge Sotomayor’s] extensive and probing questions at the argument were typical of her methodical approach to cases, and they offer sometimes conflicting hints about her views on when the government may take account of race in decisions concerning hiring and promotion.

At times, her questions were small lectures on the governing legal standards.

Judges often give “small lectures” when lawyers make arguments that demonstrate their lack of understanding of the legal standards.  It’s not to talk down to counsel, but to assist them when they appear for argument without being prepared, knowledgeable or, perhaps, competent.  It’s like a cue to the lawyer to cut the crap and start dealing with the case like a lawyer.  Good lawyers take the cue.  Bad lawyers resist, insisting that they know better. 

Karen Lee Torre suffers from a disability.  She’s blind.  And it has nothing to do with her eyesight.  Her affliction prevented her from seeing how bad her argument was before the 2d Circuit.  Her limitations precluded her from recognizing that she lost all credibility, assuming she had any to begin with, with her appeal to fear.  No judge on that panel forced Torre to take such an absurd tact.

A decision will issue from the Supreme Court on Ricci sometime soon, and it may well reverse the circuit decision.  On the one hand, Sonia Sotomayor will not be one of the judges deciding, her absence being one difference.  On the other hand, Karen Lee Torre was not the lawyer arguing the cause for Frank Ricci and 17 other firefighter applicants, being another difference.  If one was to chose between one out of a gaggle of judges or the lawyer arguing for the party as being more critical to outcome, the key becomes clear. 

Sunday Stuff That Irks Me

On occasion, I post something a bit more introspective than my typical commentary on law, news or the loss of dignity, client service and professionalism amongst lawyers.  Today is going to be one of those days.  For readers who hate when I do this, go away now.  Run.  Flee. Avert your eyes.

For quite some time now, my brethren and sistren in the blawgosphere have used the adjective “prolific” to describe my posting.  It pisses me off.  There, I’ve said it.  I hate it when I’m described that way.  It insults me.  It offends me. 

Others, usually clueless about what I do at Simple Justice and more often than not card-carrying members of the Slackoisie, assume that in order to produce posts on a blawg, not to mention respond to their silly comments, I must spend every waking moment hard at work at my keyboard.  They assume this because it would take them hours, maybe even days, to produce a post.  They can’t write worth a damn, so that means it must take me as long as them to write something.  After all, it isn’t possible that there are people out there who can do anything they can’t do.  They are the most awesomest person ever, and everyone else is measured by them.  I can easily ignore these fools, though I feel sorry for them and want to help. 

But it’s the people who have come to know me through my writing that bother me.  You know who you are.  You should know better.  You’ve read what I have to say on the subject, that I have spent the past quarter century doing pretty much the same thing I do now at Simple Justice, thinking about stuff and cranking my thoughts out in words.  I don’t count the number of words or posts or the minutes ticking away on the clock.  I just pound the keyboard until it’s out of my head and onto my screen. 

Calling me prolific elevates quantity over quality.  On very rare occasion, I look back at something I’ve written.  Usually, I do it because I see a typo (I use spellcheck before posting, but I never proof anything on the blawg, ever.  That’s reserved for real work) which bothers me when it comes on my radar.  As I reread my stuff, I usually like it.  Sometimes, I like it a lot.  I think to myself, that’s pretty good writing or that’s a pretty good analysis.  There is a measure of pride in what I produce.  Not because there’s a lot of it, but because the ideas, the language, the delivery, pleases me.  But not you, eh?

Am I just the smorgasbord with so much food laid out before you that you can gorge yourselves, but none so tasty or well-prepared that it’s worthy of mention?  That’s how calling me prolific makes me feel.  When the first thought that comes to mind about Simple Justice is that Greenfield sure writes a lot, the message is clear.  Expressio unius est exclusio alterius.  Don’t you think I can read between the lines?  I get the message.  Simple Justice, where words go to die.

Thanks for your kind thoughts.  Prolific.  Feh.  Why not just come right out and say it, ya buncha wussies.  Go ahead.  I dare you.

And now for something completely different.*

Dan Hull, who is finally beginning to shed his shrinking violet image at What About Clients?, has had enough of “big mouths, no names.”  Me too.  This is not to invite another debate about good reasons for anonymous posting, but to make a point to all those who believe that their value judgments matter when they express it under some silly nom-de-comment.  It happens constantly.

Sometimes the identity of the person posting a comment doesn’t matter because the content speaks for itself.  But that’s rare.  Usually, the content involves a rank opinion, for or against something, or an assessment which only derives meaning from the fact that you’ve got a basis to lay claim to an opinion.  What possible worth is your opinion standing alone?  This isn’t a Gallup poll, and the side with the most votes doesn’t win.  When some anonymous person writes “I’m a really good lawyer,” it means nothing since you aren’t the judge of your own competence.  On the other hand, it tells me that you’re too stupid and egocentric to realize it, so that suggests you’re a really bad lawyer who just doesn’t get it.

These anonymous commenters get their panties in a twist when I call them out.  They take it personally, and fail to recognize the irony of shielding their bona fides through anonymity while being personally hurt by being told they don’t matter.  If you want to matter, than be bold enough to stand behind your opinion by using your real name.  Hull, enemy of the spineless, thinks it’s time to start a NWZ.


Because WAC? is seriously considering a policy of “No Real Name, No Real Publish, Jack”.  A No-Wankers Policy. A No-Weenies Standing Order. No-Wank Zone. No-Wimp Zone. Set up your own No-Weakling area. Establish “Spines-Only” districts. Not sure. Maybe…”No-Wuss” zone. I think I like that one best.
Stop kidding yourself.  If you don’t have the balls to stand behind your opinions, to let others know that your views are worth the ten seconds it takes to read them, to provide some basis, any basis, to make anyone care what you think, then use your name. 

I’ve got no plans to block anonymous commenters.  But don’t expect me to fawn all over you as if you’re entitled to being taken seriously.  On the flip side, if you twit under some idiotic name that involves body parts or your favorite critter or anything else that clouds who you are, I will not follow you, respond to you or take you seriously.  I’m terribly wrong not to appreciate your brilliance?  I’ll live.

And one more thing:  No anonymous commenter, nor any commenter under the age of 30, is allowed to call anyone else “whiny”.  You are presumptively wrong and clueless.  It’s like one toddler calling the other “stupid”, and the second saying, “No, you are!”  I’ve had enough of it.  All of you, go to your rooms until your mother and I tell you to come out.

Why?  Because I say so.  So there.

And now for something else completely different.

Most blogs link to the source of a post, when something comes on their radar because another blog picked it up.  Most are very good about doing so, both because of etiquette, credibility and the mutual benefits of link love.  Most.  Some, not so good.  Some bad.  Very bad.  Some never link to the source of their information at all, ignoring completely how they became aware of a case or issue, and going instead to the initial source (like a newspaper story) as if they came up with it all on their own.  Res ipse loquitur, my butt.

It’s not quite plagiarism, but it stinks from a lack of integrity and etiquette.  If someone else did the heavy lifting that now benefits you, don’t pretend that you did it all by yourself.  That’s deceptive, and you’re milking someone else’s efforts.  It’s all out there in the ether for anyone to find?  True.  But you didn’t.  Someone else did.  Give ’em the credit.  Both because it’s the right thing to do and because your integrity is suspect. 

It’s Not For The Money

It’s been said many times the being a police officer isn’t just a job, but a calling.  Of course, that doesn’t mean that cops don’t have families to feed.  Just ask Westhampton Beach Chief Raymond Dean.

From Newsday :


Westhampton Beach Police Chief Raymond Dean makes $188,709 a year, is given a car for his work and personal use, and he wants more.

Some trustees of the 2.9-square-mile village on the South Fork are not so sure. They’re expected to discuss Dean’s contract – as well as 583 hours in compensatory time he accrued – at a meeting at 7 Thursday in Village Hall.

If Dean gets a raise of any kind – a village official says there is a 7.9 percent raise in his contract – Dean would make more than New York City Police Commissioner Ray Kelly, who oversees the largest police department in the country. Kelly makes $189,700, said his spokesman, Paul Browne.

In case you aren’t familiar with Westhampton Beach, that 2.9-square-mile description fails to do it justice.  That’s 2.9 of the roughest, toughest Hamptons miles you’ll ever see.  I can’t begin to describe how the Mercedes and Porsches whiz along Dune Road, sometimes going 40 on the 30 mile per hour road.  It’s a war zone.


Westhampton Beach Police Dept. Chief Raymond Dean It’s not easy being Chief Dean.  And yes, that certainly looks like a Rolex on his wrist.  But not a new one.  And clearly not a Daytona.  One of the lesser models.  In Westhampton Beach, that’s humiliating.

But comparisons between Chief Dean and NYPD Chief Ray Kelly are just unfair.  After all, Kelly has about 35,000 people in his department.  Dean has about 21. 


Last year, there were 116,824 serious crimes reported in New York City – a historic low, Browne said. By comparison, there were 43 serious crimes, including robbery and aggravated assault, reported in Westhampton Beach, according to state criminal justice statistics.
When you break the hundred thou mark, you have mechanisms in place to keep track of all that serious crime.  When it’s a mere 43 crimes, you have to do it all in your head.  Need I tell you what a headache a Chief can get from having to remember that many things?  Seriously, I don’t know how he does it.

The good news is that Board of Trustees of the Village of Westhampton Beach has now resolved to declare Chief Raymond Dean’s contract “invalid and unenforceable.” How exactly that works is unclear, given that even baby government’s can’t abrogate contractual obligations at will.  I expect that the Village attorney, Herman J (Bo) Bishop, will have a brilliant scheme whereby they can do any darn thing they want.  Frankly, if he’s got a lawful way to pull this off, I would be most  impressed.

But there’s still one question that remains unanswered.  How in the world did these dedicated public servants get themselves in this position in the first place, giving the Chief a deal that would make a Saudi prince blush? 

Schools Have Rules, Taser Edition

Cellphones are a problem in school.  They can be disruptive and a huge distraction.  Some schools ban them altogether.  Others, like Penn Hills High School, around Pittsburgh, has been a bit gentler in its limitation, allowing students to have cellphones in school provided they only use them for emergencies.  On the other hand, they also allow cops in school to make sure that students adhere to the rule.

Via Turley (who I might add never notes who his sources might be) comes this shocking bit of news from the Pittsburgh Tribune-Review :


The officer, who was stationed at the school, saw a male student walking in a hallway talking on a cell phone between classes and ordered the teenager to return to class, according to police Chief Howard Burton.

“The student ignored the officer, who then took him by the arm to escort him to the office,” Burton said. “But the student resisted and pushed the officer.”

“The kid was violating two rules — he should have been in class and he shouldn’t have been talking on a cell phone,” Burton said.

To subdue the student the officer used his Taser to perform a drive stun, Burton said.

Two rules at once?  This kid must be a bad seed.  He must be taught a lesson.  Tase him.

But Chief Burton’s explanation of the offense presents a problem.  If the student was “between classes,” what should he have done in response to the “order” to return to class?  Apparently, he should have bowed deeply to the officer and acknowledge his omnipotence, or at least kissed his ring.  The notion that we are not obliged to respond because a police officer speaks doesn’t enter the picture.  In Penn Hills High School, there is no right to be left alone.

No doubt, someone will think to themselves that this student, the bad seed, could have easily avoided the problem by merely complying with the officer’s order.  How hard would it be to just do whatever the cop says?  That’s what a good boy would have done, right?  Well, of course it is.  It’s what a good sheep would have done as well.  There’s a lesson to be taught in all high schools.

So having ignored the officer’s less than well-conceived order, the officer does what he has to do.  He places his hands on this student.  Mind you, no one at this point asserts that the student wasn’t in complete compliance with the school rules, as in his telephone call was not an emergency and he was still trying to get through to vote for Sanjaya on American Idol.  As far as can be told, he might have been telling his mother than he was suffering from Swine Flu.  We don’t know, though one might surmise that if the police had information to bolster the officer’s conduct (like the kid had a rap sheet), it would have been the first thing out of Chief Burton’s mouth.

Contrary to the belief of many, police officers have no inherent right to grab someone.  No one, but no one, has an inherent right to place their hands on another person and seize them.  Before doing so, there must be a cognizable basis.  In this instance, the claimed basis is that the student ignored the cop’s order.  Does that do it for you?  It falls just a bit short for me.

When someone, even a cop, grabs an arm without the permission of the rest of the body, there is a right to defend oneself.  This is where most thinking gets muddled.  I don’t recommend it, not because it’s wrong but because the immediate consequences are often dire, but the law allows each of us to protect ourselves from a seizure by a police officer acting without legal justification. 

And then the officer, locked and loaded with taser, teaches the kid a lesson.  This is where the story gets really interesting.  While the article neglects to mention the source of this information ( which is presumptively Chief Burton), it notes that the taser was on “drive stun” and then states:


A drive stun is when the Taser is placed against a person’s body, typically the thigh, and is activated, sending out an electrical charge that only contracts the muscles in the roughly 2-inch area where it is touching.
No big deal, right?  I mean, seriously, a 2-inch area?  It’s like a love tap, right?  And I bet the writer knows this first hand, as he’s probably been the target of a taser on drive stun many times before, laughing it off as a quick buzz.  Elsewhere, “drive stun” has been described as a “searing jolt of pain.”  Maybe things don’t hurt as much in Pittsburgh.

As for the bad seed, his problems have just begun:

The student was handcuffed after he went down on the ground because he continued to resist, the chief said. The boy, who complained about being dizzy and having a headache, was taken to Forbes Regional Hospital for treatment.

Not only must he be the wussiest kid in Pittsburgh, feeling dizzy from a mere tasing, but now he’s going to cost his father for the hospital bills.  Hope Dad has insurance, or maybe he’ll have to terminate his kid’s cellphone plan to cover the cost.  I told you there were consequences for ignoring a cop. And no, we aren’t done yet with our bad seed:


The teenager, whose age and grade level were not available, will likely face multiple criminal charges including a felony count of assaulting an officer, Burton said.

This part is unclear:  Did he assault the officer when he pulled his arm away (that can hurt really, really bad, right officer?) or by proxy when he assaulted the end of the taser on drive stun, thus attacking the officer’s shooting hand?  Or maybe both, since he will face “multiple” criminal charges. 

Can’t we all agree that the halls of Penn Hills High are safer today because of this police officer’s bravery, quick thinking and, mostly, adept use of a taser?  You can bet there won’t be many students chatting on cellphones come Monday, no matter how bad the emergency.


But What If She Was Black and Poor?

Following Dan Solove’s post at Co-Op on the utterly disgusting conduct of California Highway Patrol Officers who posted photographs of the decapitated Nikki Catsouris online, I jumped in to express my outrage and disgust that our protectors would do something like this.  Now Marc Randazza (of the Sicilian Randazzas) at the Legal Satyricon has stepped into the mix, and brings a very different perspective to the mess.

In an extraordinarily powerful post, Randazza, after noting that his utter disgust for the photos and the conduct of the wealth of nutjobs who enjoy such images and frequent the internet earth, hiding their diseased minds in feigned normalcy and online anonymity, reminds us that offended sensibilities, no matter how justified, shouldn’t move us to forget why we have freedom of speech.  That said, he goes into an entirely different area.

“Cultural class warfare,” Randazza explains, distinguishes the Catsouris case.  Here’s a young woman, high on cocaine, driving a Porsche, and now she’s dead with hideous pics to prove it.  Had it not been a “privilege, young white girl,” no one would have cared enough to post her photos.  And if they did, no one would have cared enough to write about it.  And if they did, no one would have cared enough to be outraged.  What was once the object of envy of the poor is now the subject of ridicule.  They got their revenge at the expense of the Catsouris’. 

Sadly, Randazza’s right.  Horrible things happen to poor people, to black people, to poor black people.  No one bothers to post the photos or bemoan the wrong done them.  It just doesn’t seem to matter.

This “phenomenon” can be more easily observed, and happens with far greater frequency, with missing, murdered and abused children.  The back of milk cartons are filled with faces, often of color, and yet we hear nothing about them.  Yet, when a white child of well-to-do parents goes missing or turns up dead, it becomes a national story.  It’s shocking how bald the distinction is.  Think Natalee Holloway.

So when images of Nikki Catsouris appeared on the internet, horrible photos that no one should ever want to see, it was time for payback.  As if the Catsouris family was to be blamed.  But this really had nothing to do with the Catsouris family, though they suffered directly,  Randazza says that this “provides a salve to the daily suffering that comes from being a low-life.”  So much of our cultural angst derives from some miserable human being needing someone they can deride to feel a momentary sense of being better than someone else.  It explains why the sickest, stupidest, lowest white man will ridicule a successful, educated black man, as if the color of his skin made the former intrinsically better.  The former needs to hate black skin to show that he isn’t at the very bottom of the ladder of humanity, all evidence to the contrary notwithstanding.

The “solution” to the Catsouris dilemma is that we ought to be far better people than we are, and by no means is there any excuse for the conduct of the CHiPs officers who initially distributed the photos.  But we aren’t better people, and those who seized upon the photos to rub it in the face of Nikki Catsouris’ family are the worst of us.  No law has ever been enacted to change the diseased mind of the miserable.  And there will always be miserable, disgusting human beings.  It’s our nature.

Bodine to Twitter: You Ugly and You Dress Funny

When it comes to marketing worthiness, I’m not exactly the first person people turn to for advice.  My strong (some would say virulent) position on lawyer marketing makes me anathema to those inclined to pursue clients the new-fashioned way: huckstering.  I realize that you need business and are prepared to put on lipstick and walk about, but don’t hate me for calling you on it.

But Larry Bodine?  That’s another story altogether.  He’s all about marketing, and he’s got some of the best street cred in lawyer marketing around.  If I was going to market, he would be the guy I would go to.

Yet Larry just made himself persona non grata in the twittersphere.  The Web 2.0 zealots, the early adapters, the sycophants of all things binary, have fallen in love with twitter and can’t gush enough about its worthiness.  Word on twitter is that it’s soon to cure cancer.  Or at least herpes.  I can’t say whether that would be simplex or duplex.

Larry, however, has not been sucked in.  Sure, he’s on it.  He tried it.  He gave it a fair shake.  And he’s arrived at a conclusion:



But that doesn’t make Twitter an effective law firm marketing tool. Consider that:



  • 60% of Twitter users drop out after one month.
  • It is the least effective way to boost traffic to your website, compared with SEO, email promotions and blogs.
  • Twitter will generate leads, but not necessarily sales.
  • Twitter can get lawyers and firms in a lot of trouble in the event of litigation.
  • Twitter is a powerful distraction from getting real marketing work done.

 When he uttered these words at the Get A Life Conference, according to Adrian Dayton, Bodine “caused audible gasps in the audience.”  The unthinkable, challenging a sacred cow of the technoslackers, was met with shock.   But, but, but . . . it’s new and it’s techie and it’s, it’s, it’s easy. 

My life on twitter has settled in to a relatively comfortable co-existence.  It can be fun for brief period of time, like some background chatter outside my office by people I like, allowing me to jump in when I feel like it and ignore it when I don’t.  This works for me.  But I am one of those twitterers who doesn’t play by the rules.  I don’t follow people because they follow me.  I don’t care if I have more followers than someone else.  In fact, I occasionally try to chase away undesirables by letting them know that (a) I won’t be following them and (b) I won’t be buying anything from them.  Whenever I twit things like this, a bunch of followers magically disappear, significantly reducing my chances of winning the prize for most twitter followers.  Bummer. 

I’ve come across some of the puffy sort of people who frequent the internet claiming to have made big money on twitter.  I bet the owners of twitter would like to know how, since they have yet to figure out how to monetize their baby.  These fast-talkers tend to be the same ones who claim to have made fortunes on blogs as well.  There are a surprising number of people who make claims of great wealth gained from promoting themselves online.  I don’t believe them.  I think they are full of it.

Some of these voices I know to be liars.  Some I merely suspect.  Some I think are so shameless in the promotion of their self-interest that they’ve lost any sense of honesty and decency, and feel no compulsion to keep their claims anywhere near the realm of reality.  But I know that those who claim their seldom-read blogs are generating millions are suspect.  I know a little something about blogs.  As does Mark Hermann.  Don’t try to sell me magic blogging beans.

Larry Bodine has guts.  I admire guts.  He looked the sacred cow square in the eye and spoke his mind.  The audience was made up of very likely candidates for his services, and yet he told them something they didn’t want to hear.  It’s so much easier to appeal to their bias.  People like you better when you tell them what they already believe to be true.  You attain instant credibility.  It would have been very easy for Larry to scam the fools to get their love, not to mention their business.  He chose not to.  That’s integrity.

Some may fear that if Bodine’s right, it could spell the death of twitter.  A meteoric rise, and similar crash.  I don’t think it means anything of the sort.  It only means that twitter’s utility, assuming utility is a word that can be associated with twitter at all, isn’t commercial.  For me, that’s more of a reason to like twitter, the hope that the self-promoters, the hucksters, the marketers, will find it worthless and abandon it in droves, leaving it to the few who just want to twit with some friends when the mood strikes.

I still don’t know how the inventers of twitter are going to monetize their creation, unless they plan to put a webcam into their offices and charge for the pleasure of watching them rid the twittersphere of Ponzi schemers.  And speaking of webcams, to the young ladies who are following me in the expectation that I will sign up to watch them in their private moments on their very own webcam, chances are not good at all.  I don’t even think they are lawyers.

H/T Carolyn Elefant at Legal Blog Watch

The Nanny Sentence

Doug Berman posts at Sentencing Law & Policy about a sentence imposed by a District Court judge in Bangor, Maine, which stretches even the hardest criminal lawyer’s heart to the breaking point.  From the Bangor Daily News :


U.S. District Judge John Woodcock last month sentenced Quinta Layin Tuleh, 28, to 238 days in federal prison for having fake documents. Woodcock said the sentence would ensure that Tuleh’s baby, due Aug. 29, has a good chance of being born free of the AIDS virus.

Both the federal prosecutor and the defense attorney urged the judge to sentence Tuleh to 114 days, or time served, according to a transcript of the sentencing hearing. Woodcock instead ignored the federal sentencing guidelines and calculated her sentence to coincide with her due date.

Talk about an activist judge, it doesn’t get more overt than this.  But it’s awfully hard to fault the judge’s good intentions.  Idealogical issues aside, no one wants to see a baby born with AIDS, and who amongst us wouldn’t want to do something to help?  Judge Woodcock made no bones about his purpose.


Woodcock told Tuleh at her sentencing on May 14 in U.S. District Court that he was not imposing the longer prison term to punish her further but to protect her unborn child. He said that the defendant was more likely to receive medical treatment and follow a drug regimen in federal prison than out on her own or in the custody of immigration officials. The judge also said that his decision was based entirely on her HIV status. If Tuleh were pregnant but not infected with the AIDS virus, he would have sentenced her to time served.

One might well question whether the judge puts a bit more stock in the fine medical care available to prisoners, but cynicism aside, his flagrant abuse of his sentencing power at least serves a greater good.  Certainly, judges have abused their power before for reasons far less worthy.

There really can be no rational basis in law for imposing this sentence.  Protecting an unborn child by assuring the provision of medical care is simply not one of the available bases for a judge to impose a sentence.  Nowhere in Section 3553 is the welfare of a child mentioned.  The point is clearly made by the MCLU:


“Judges cannot lock a woman up simply because she is sick and pregnant,” [Zachary Heiden, legal director for the MCLU] said. “Judges have enormous discretion in imposing sentences, and that is appropriate. But jailing someone is punishment — it is depriving them of liberty. That deprivation has to be justified, and illness or pregnancy is not justification for imprisonment.”
There’s no legally cognizable counterargument.  And yet, there’s a baby to think about.  Judge Woodcock did his best to fashion his sentence as if it fell under the deterrence prong of 3553, stating the this could be deemed an assault on her baby when born, and knowing that there is a likelihood that she will assault her baby when born, he must act to prevent that assault by deterring her conduct by keeping her incarcerated.  It was a valiant try, quite imaginative, but it’s hard to believe that even the judge bought it.  He said enough words to give it the color of legitimacy, so that his sentence would last long enough to keep her in until the baby was born.  He could be reversed afterward, but by then the issue would be past.

Institutionally, this is a terrible precedent, leaving it up to the sensibilities of individual judges to ignore the limits of their authority whenever something comes along where they feel that they can further an agenda in which the believe, stay a harm that they feel needs staying, and help in a way that they believe deserves help. 

But this was a baby.  It’s just so hard to argue against protecting a baby.