Monthly Archives: June 2009

Vanity Fair

Having been a litigator throughout my legal career, I don’t feel competent to assert that this is true of all lawyers, but I can tell you that almost every trial lawyer I’ve ever known is vain. It’s perfectly understandable, as a component of putting ourselves on the line for a cause in front of a bunch of other people whose purpose is to make us look like wrong at best, idiots at worst.

We must believe in ourselves or we couldn’t stand up and face the judge and jury. It’s not that we don’t have self-doubt. In fact, we have quite a bit at times, but can’t afford to let it show. Thus, it should come as no surprise that validation of our belief in ourselves is something we desire. It’s palpable proof that we exist, we are worthy, we can do it.

The other day, Deven Desai at Concurring Opinions wrote about “Who’s Who.” It’s one of those seemingly harmless things that validates us. It sounds impressive, to tell others that you are in “Who’s Who,” though I’m unaware of anyone who has ever actually referred to “Who’s Who” to figure out who’s who.

Deven, however, raises some concerns that makes it appear less benign than assumed.

In a world where people develop online reputations, being included in a database such as Who’s Who may not be desired. I always thought of the publication as one requiring payment for inclusion; that is apparently not so. Still that image persists in my mind so I don’t like being in the database.

When I received my first “Who’s Who” inquiry, it was by snail mail. There was no internet yet, and certainly no email. The mailing certainly made it seem as if it was a come-on to buy the book, touting the special insider rate for those worthy of inclusion. But I did go along with being included, though the come-on suggested that I was only being “considered”, with no guarantee. Unless, perhaps, I bought the book? I passed. I knew who I was and didn’t need a book to tell me. Especially one that costs more than $100, which was a princely sum at the time.

Over the years, I received notification from the publishers, Marquis primarily but a few others as well, of my honor. I was in Who’s Who in American Law. Later Who’s Who in America, and then Who’s Who in the World. I could understand being in the one about law, but never really understood why anyone in the world would be interested in me. Still, who was I to disagree with the sound judgment of whoever made such decisions?

With the letters came a biography of me. I never gave them any information, and yet they had quite a bit, ranging from stuff about my parents to details about my children. That was shocking. Where did these guys get all this information about me? Remember, there was no internet then, and the idea of Googling someone wasn’t even a twinkle in their eye. Yet they had it, and published it. I still assumed that while it would appear in book after book, I was safe since no one would ever bother to look me up and see it. There’s safety in being buried in the “G’s”.

Things are different now. Deven’s concern is real, given that personal information, usable for a plethora of dastardly purposes, is readily available to anyone who bothers to look. And what was once a harmless vanity is now a source of personal data that could fuel an attack upon privacy.

A couple of years ago, I was rummaging through a church used book sale and came upon a Who’s Who in the World. I couldn’t help myself, I had to look. It was a huge book, a monster. And only one of a series of huge books. It was big enough that one might assume it listed everyone in the world who had the wherewithal to buy the books. It appeared untouched by human hands, what people on eBay refer to as mint. I ruined that by shuffling through the pages until I came to the place where my name should be.

There is was. I was in it just like they said, even though I never spent a dime. Me and a few gazillion similarly situated folks.

I turned to my wife and said, “You wanna buy this?” It was only a quarter. She looked at me square in the eyes. Her passion in our household is to counterbalance any pretensions I might have of importance. “Why?” That was all she needed to say to take the wind out of my sails. Why indeed?

Lawyers, at least litigators, are always searching for some honor to put on our wall to make us believe that we are as good as we want to believe we are. The validation for which we strive in the privacy of our own minds. Some pay for the privilege. Some wait for someone to send us notice that we are the recipient of some “honor”. It’s not like we build a beautiful house that we can point to with pride as an example of our worth. The closest we come is the “ego wall” that holds the many certificates that come with bar and association memberships, which may impress some clients but which we know to be the product of mailing a check with sufficient funds behind it.

The only real validation we receive is the knowledge that there are people walking around, families eating dinner together that night, who wouldn’t be but for our efforts. It should be enough. And yet we willingly sacrifice our privacy and risk financial ruin to allow our name to be published in a meaningless book.

Taser, With Love From Niagara Falls (Update)

When the Niagara Falls police put their heads together and decided that tasing a guy was the best idea for collecting a DNA sample, I “tsked”. That, apparently, is why I’m not sitting on the big bench, like Niagara County Judge Sara Sheldon Sperrazza. I lack her imagination.

From the Buffalo News :

It is legally permissible for police to zap a suspect with a Taser to obtain a DNA sample, as long as it’s not done “maliciously, or to an excessive extent, or with resulting injury,” a county judge has ruled in the first case of its kind in New York State, and possibly the nation.

Not to nitpick, but does that mean the intentional infliction of pain in order to obtain compliance with an ex parte order is fine as long as it’s done lovingly? Must they cradle the taser in their warm and caring hands before they fire? Just asking.

For anyone who may not recall, Ryan Smith gave a DNA sample willingly, which the cops promptly screwed up, thus requiring another one.

He already had given a sample, a swab of the inside of his cheek, without protest the previous month. But police sent it to the wrong lab, where it was opened and spoiled. Prosecutors who had obtained a court order for the first sample went back to Sperrazza, who signed another order without consulting the defense.

The judge figured, if he didn’t mind the first one, why bother asking about the second? After all, nothing crazy could happen, right? But Smith didn’t see it that way, and decided that he didn’t want to give up his DNA again. So the cops have a court order and an uncooperative defendant. Normally, the refusal to comply with a court order would compel the police to let the prosecutor know, who would then move to have the defendant held in contempt for failure to obey the court order. But not in Niagara Falls.

Smith was handcuffed and sitting on the floor of Niagara Falls Police Headquarters when he was zapped with the 50,000- volt electronic stun gun after he insisted he would not give a DNA sample.

But the police took no pleasure from this, I bet. Just doing their job.

In her ruling, Sperrazza cited numerous legal precedents and the state’s Criminal Procedure Law, allowing the use of reasonable force to carry out a court order.

Although there are no New York cases specifically dealing with using a Taser to accomplish that, the judge did find a Wyoming case where a court ruled it was legal to use a Taser to force a suspect to open his hand for a search.

Balkin and other lawyers familiar with the case say they know of no other case in the country in which a Taser was used to gather DNA.

Wyoming? Let me see if I have this straight, a Niagara County Court judge wanted so desperately not to rule against the cops that she researched? And she researched Wyoming? Because Wyoming is so fundamentally relevant and persuasive in the formation of novel New York law? I’m still stuck on the part where she did research. ~~Boy, would I like to see this decisions, but it’s not yet available online. Our hinterlands correspondent, Kathleen Casey, is hot on its trail, however, so I hope we’ll have it available soon.~~

Update: Kathleen has gotten the decision and This entry was posted in Uncategorized on June 4, 2009 by SHG.

Newsflash: Indigents Need Lawyers. Judges too

The Washington Post has another article about the crisis in indigent defense. Are you surprised to learn that no one has found a pile of money to hire your public defenders or to lighten the caseload to human levels? Neither am I, but people keep doing incredibly, and inexcusably, stupid stuff that ends up landing them in the dock. Go figure.

The article opens on the tale of Kimberly Hurrell-Harring, whose husband is on vacation in Great Meadows Correctional Facility. He’s got one itty, bitty favor. Can she just squeeze a little weed into an orifice when she comes to see him? Really, is that too much to ask? And he asked on the prison phone. You know, the ones with the really big signs over them that say, “Your Call Is Being Recorded!” Oh, those prison jokesters. Who would believe them?

He was calling from a maximum-security prison, and someone must have been listening because when she walked into the Great Meadows Correctional Facility in upstate New York, guards immediately yanked her to the side.

They told her things would go easier if she handed over the dope without a fuss. She did, and things immediately got worse.

With a swiftness that made her head spin, she was handcuffed and hauled to jail. At her arraignment, there was no public defender available, though she was entitled to one. Standing alone, she was charged with one felony count of bringing dangerous contraband into a prison.

And so, lacking funds to retain counsel, standing alone, afraid, confused, guilty.

After her arraignment, Hurrell-Harring went back to jail because she couldn’t afford bail, either. Three weeks passed before a public defender appeared, and she says she spent a total of 15 to 20 minutes with him before her sentencing hearing.

He told her not to fight the district attorney’s recommended punishment _ six months behind bars and five years of probation. It was the best she could hope for, he said. But she had no criminal record. Surely, she begged, couldn’t possession of less than an ounce of pot, a misdemeanor under other circumstances, be bargained down to probation?

“It was like he had no time for me,” she says now, still unemployed 17 months after her release because she lost her nursing license when she became a convicted felon. “He told me to plead guilty.”

This tale of woe is a terrific beginning, not because it engenders huge sympathy per se, but because it reflects the start of a series of problems that seem to fly right over the head of the writer. For a story about the horrors of funding for public defenders, it’ tells a very different story. Find a good guy amongst this crowd if you can.

Let’s start with our heroine, secreting marijuana in her private parts. Did it surprise her that this might get her in trouble? Her dear husband, already in prison, wanted it, and as she later explains, women do bad things for their men. Really? Then women get in trouble for doing bad things for their men. It’s a cause and effect thing. If you can’t afford to get in trouble for trying to sneak some drugs into prison, then here’s a solution. Don’t do it. Not to hard to figure out.

And what about the guards who lied to her that it would go easier if she just gave it up? Isn’t it heart-warming to know that the primary tool of law enforcement is lying? Yes, it’s effective. No, it’s not the sort of thing that engenders respect for the law. Especially when they manipulate some clearly clueless woman. Big, tough prison guards. Aren’t you proud of yourselves?

Then we have our prosecutor, who could have charged her with a misdemeanor, given that it was only a small amount of marijuana (it’s not clear how much, but there are few places within a body where you can hide a brick). But this prosecutor was shooting fish in a barrel, so why not dump a full load on this woman and do as much damage as humanly possible. After all, it’s not like she’s in a position to fight back, right?

Strangely, the article makes no mention of a judge. Was there a judge around? We can only assume, it being a court and all, but nary a mention of why the judge held her on bail (was she going to flee with her man in Great Meadows?), thus imposing one of the most coercive means of getting a plea, nor why the charge and sentence for this minor offense was cool with him.

But since this was an article about indigent defense, I reserve my special thoughts for the lawyer charged with defending our heroine from tragedy. What does Patrick Barber, the part-time public defender, have to say about this case?

He agrees with his former client. He doesn’t have much time to visit clients. It’s not possible to see every defendant, he said. Many have no car, and can’t get to his office. Others are in jail, and he simply can’t get to all of them, he says.

Barber claims he did the best he could for Hurrell-Harring.

“She couldn’t have been charged with a misdemeanor because it wasn’t offered. It wasn’t going to be offered. The district attorney takes a very hard stance when it comes to prison contraband,” he said.

No amount of money would cure this disease. His problem wasn’t lack of time or funds, but lack of heart. The defense was lost before it even began. Was standing before the judge to accept a pre-dictated plea really the “best” he could do? Had Barber said that he would have fought this case zealously, challenging the confession and search, maybe even making a Clayton motion, if only he had the time to do so, I would give him credit for good intentions. But instead he defends his representation, and for that he gets what he deserves.

Hurrell-Harring, 33, doesn’t much care about Baker’s caseload . . .

Nor should she. What we do is defend people who do stupid things, guilty or not. That she screwed up big time is irrelevant. She still deserves representation by a lawyer who hasn’t surrendered before he met her. That’s how our system is supposed to work.

Of course indigent funding is a disaster. But this example shows a system of failure at every level, from every individual involved, not just indigent funding. No amount of money is going to change what happened here. They say it may not be perfect, but it’s the best there is. Just keep repeating that to yourself and you can sleep soundly at night.

Party, Slackoisie Style

Adrian Dayton’s found his dream world : Dilbert

Generation X Shows Boomers How to Throw a Party (Conference)

-Free massages
-Video game station with a Nintendo Wii
-Flowers and grass displays creating a virtual arboretum
-Young energetic staff
-Great Chicago food
-The man in charge with his shirt un-tucked.

(see a video of the conference hall here)
[Ed. Note: Watch the video, it’s precious]

Does this sound like a nice place to hang out?

And he let’s me know that this world is far more desirable than what I have to offer. Except for the video game station, which holds no interest for me at all if it doesn’t include Ms. Pacman or ‘stroids, it sounds wonderful. But it’s a conference, not a job, kid. And it didn’t work at that, given that there were only 110 paying attendees. Other people had kids of their own, with mouths to feed. Those darn hungry kids.

I understand why this is much more fun. It would be fun for me too, if only somebody wouldn’t mind being the grown-up and defending my clients while I was getting a massage and playing videogames. Oh yeah, and paying me the money while I did so. How cool would that be! Awesome! Awesomosity! Awesomositiness! Or however you kids say it.

Sorry Scott Greenfield, but that type of success story is just far too appealing to Generation X and Y. And to reply to your post, the issue is not that Generation Y has a problem showing up for work; we just have a problem showing up to work for people like you.

And you don’t have to. If you can find your dream world, by all means go for it. But you can’t have it with me. I don’t throw parties to appeal to children for a living. My clients have more serious concerns.

My favorite part of Adrian’s memory of a good time had is this:

I wasn’t just impressed by Edmund Scanlan as a person, but by his unique conference that was highly informative. There were awesome speakers like Stephen Fairley who besides being a really nice guy also taught how to build a 7 figure law practice,

I can’t wait to hear how soon you’re all making 7 figures the easy way. But then:

In wasn’t all good however. There was one speaker whose unprovoked criticism of Twitter as a marketing tool caused audible gasps in the audience. His recommendation to get free publicity? Use the telephone and just call newspapers. How 1970’s can you get? Actually, the unnamed person was Larry Bodine,

Someone always has to suck all the fun out of things. He’s old, you know.

So far we have been through the Months of Integrity, Courage, and Gratitude and so I think it is fitting that this month, in honor of Ed Scanlan and to spite Scott Greenfireld, that we have June be the Month of Balance.

Perhaps the problem we have is that you were not yet ready to absord the lessons we tried to teach you, Adrian. You’re older now, more mature perhaps, so let’s give it another try, shall we? I’ve watched your video. Now you watch mine. Let’s see if this time around, you get the point:

Think about it.

How Many Justices Should It Take

The platitude is that we are a nation of laws, not men. This buck stops at the Supreme Court, where we rise or fall on the sensibilities, philosophies and experiences of Nine, right? Well, not exactly. It’s actually five, not nine. Every decision of the Supreme Court of the United States is dictated by the votes of merely five people. Fine people all, but still just people.

For the most part, this isn’t, and shouldn’t be, a problem. Most critical decisions in the law are made by just one person, the trial level judge. After that, the free-hand is far more constrained, and subject to greater scrutiny. But when it comes to a court holding a law (not conduct, but a law) unconstitutional, that’s a big thing. For better or worse, our tripartite system puts laws through many eyes and hands before they are imposed on the citizenry. Each pair got there by election. We, in other words, picked them to make decisions for us.

The same can’t quite be said for the Supreme Court Justices. While they are nominated by elected officials, and subject to the advice and consent of elected officials, there are layers of distance that distinguish them from anyone else in power, not the least of which is the fact that they enjoy life tenure. Ask any teacher, there’s nothing better than tenure to turn Mr. Rogers into Bobby McGee.

For non-lawyers, there is something almost mystical about the position of Supreme Court Justice. They are endowed with an intelligence, an understanding, a wisdom, that distinguishes them from the other 300 million. It’s a branch of government, a co-equal branch at that, which is comprised of nine people, who remain for life, passing judgment over the other two. It is, unquestionably, an awesome amount of power and responsibility.

In his New York Times op-ed, Ross Douthat reflects on the fact that it takes only a majority of the nine, five human beings, to declare a law unconstitutional. While the raw number, in a vacuum, may not strike one as intrinsically problematic, consider how many decisions of recent vintage have been decided by a 5-4 split. More to the point, consider how many laws have been declared unconstitutional.

Complaints about the Supreme Court’s power are almost as old as the Constitution, but they have more merit now than ever. According to calculations by the Harvard law professor Jed Shugerman, the Court has gone from overturning roughly one state law every two years in the pre-Civil War era, to roughly four a year in the later 1800’s, to over 10 a year in the last half-century. So too with federal law: Prior to 1954, the Court had struck down just 77 federal statutes in a century-and-a-half of jurisprudence; in the 50-odd years since, it’s overturned more than 80. Under Chief Justice William H. Rehnquist, the Court invalidated federal statutes at an unprecedented rate — and by the barest of majorities, in many cases. In one eight-year period, the University of Michigan’s Evan Caminker has noted, the Court invalidated 16 Congressional statutes by a 5-to-4 vote, something that had happened just 25 times in the previous two centuries.

If it seems like it’s happening at an unprecedented clip these days, it is. Part of the reason, which Douthat neglects to mention, is that we already had a lot of laws in place that covered pretty much everything that needed to be legislated. That left Congress without much to do as far as the basic social compact was concerned, which was bad news for all those politicians forced to run for office over and over, each of whom needed an accomplishment to show their constituents to justify their remaining on the dole. That left a lot of people scrambling to find something to legislate, forcing them to tweak around the edges of appropriate governance and giving rise to far more dubious legislation than their predecessors.

But Douthat’s primary point is that 5-4 decisions declaring laws unconstitutional emits a stink. It reflects a transitory split along political and philosophical lines, one that changes with each new Justice and his or her nominating patron. Constitutionality was supposed to be for the long haul, not subject to change every time a new body dons the robe. The stability, reliability, continuity of the process demanded that there be clear, firm agreement amongst the chosen Nine about what the Constitution meant. Each 5-4 decision undermined our faith in the stability of the law.

Detractors of 5-4 decisions come from all parts of the political spectrum, We want desperately to see declarations of constitutionality, or not, be unanimous. We want to know with certainty that it’s reliable, that it won’t change with the next personnel shift. And as painful as this may be to state, we want to believe that a mere five can’t undo the balance of government, with four in disagreement.

It is unseemly that out of the nine chosen ones, five insist that no rational person could possibly see things any way other than as they do, while the four in dissent explain why the majority is clueless. After all, only one of the five need be clueless for the earth to shift on its axis and the entirety of the decision, the law, the constitutionality and the social compact to swing in the opposite direction. Ultimately, five is reduced to one. By the vote of a single Supreme Court Justice, everything changes.

There are bipartisan ways that the Court could be reined in, and the legislative branch reinvigorated. Shugerman, Caminker and others have proposed a supermajority rule, for instance, requiring a 6-to-3 vote to overturn federal legislation. To get conservatives on board, the rule would have to be extended to state legislation as well. This isn’t as crazy as it sounds — versions of the supermajority idea have been batted around by left and right alike since Reconstruction, and merely proposing it might spur the Court toward greater consensus, and perhaps greater modesty as well.

While I am very suspect of Rooseveltian methods to manipulate the Supreme Court, and would hardly agree with an attempt to try to Schechter Poultry them, Douthat has a point. By requiring a supermajority of 6 to declare a law unconstitutional, then it would put the laws of this nation in the hands of two people, fully doubling what’s required to turn the earth on its axis. That’s comforting.

“Optimism Is Not A Strategy”

While off the beaten path of Simple Justice, I spend quite a lot of time around cars. As the proud owner of a 1964 Austin Healey BJ8 (That, for the uninitiated, is what us insiders call it. Others refer to it as the 3000, MK III, phase 2), I go to classic car shows throughout the sunny months, many of which are frequented by Americans. Cars, that is, not people. From Model Ts to T-buckets, I’ve spent innumerable hours with the objects of Detroit’s lust.

That General Motors, a very large rock in the foundation of American industry, would crack and collapse is shocking. We always expect rocks to just remain rocks. Even though we know they could collapse, we never expect it to happen while we are there, watching. As it stumbled into Chapter 11 bankruptcy, after a mere $30 billion infusion, GM showed its age.

I saw this coming about two decades ago in the eyes of my mother. My parents, who (much to my personal misfortune) never accumulated great wealth. Yet my mother always aspired to own an American icon of wealth and success, a Cadillac Fleetwood. Her other dream was to be a princess, but that was more difficult to achieve. As they were entering the retirement years, they set aside some money to obtain the things that had always been the apple of my mother’s eye, the thinking being why die without enjoying the fruit of their labor. And so, during on of my weekly telephone conversations, my mother informed me that she was, finally, going to the Cadillac dealer to purchase her sleek, black Cadillac.

“Mother (I always called her mother, at her insistence, as it made her feel more formal), we need to talk,” I responded. I explained that the Cadillac she was thinking of ceased being an status icon sometime in 1972, and that the only remaining purchasers were living in the same gated complex in West Palm Beach. It was still expensive, but would no longer sate her desire. She was 20 years too late on the Cadillac.

She finished the phone call with a brave voice, but looked around afterward. She saw. She was crestfallen, having spent so many years coveting a car that had long since fallen out of favor. She told me the following week that she changed her mind. She was going to buy a Lexus! That, she informed me, was what the “in” people around the gated community were driving these days. It was a very sad day for my mother, but even she realized that the Cadillac of her youth, or her younger years, even of her more mature years, was gone.

We now are told that the new GM will demonstrate a commitment to fuel economy, alternative fuel and the American worker. There is nothing wrong with this. But it will not sell many cars. Lust sells cars. When is the last time anyone lusted for a car made by General Motors? Think quick, can you even name a model that matters?

The New York Times revisits the many announcements by GM over the past years about it’s “turnaround”, the one that never happened. Their cars are priced below the Japanese competition, yet still fail to attract. The quality remains worse, though we’re told it’s better. While its profitability will benefit from the cost cutting, falling largely on the backs of former GM workers who got more, and less, than they bargained for, this bears no connection with the selling of cars.

What’s the plan, man?

To judge from their latest rose-colored predictions, those executives still don’t quite get it. Most of their cars are not yet reliable nor appealing enough. That — not car buyers who are too slow to know a good thing when they see one — remains the biggest problem.

We’ve heard what economists, pundits, executives and politicians have to say about turning GM around. All by the numbers, making a very rational argument, well documented and empirically based. But we’re talking about cars here.

All these steps should help the company focus on building cars that enough people want to buy. But G.M. still hasn’t explained how, at long last, it will manage to do so. And optimism doesn’t qualify as a strategy

I’ve seen cars made by General Motors that inspired lust. They are all more than 30 years old.

Lisa, Jose and Profuse Apologies (Update)

Two American journalists, Laura Ling and Euna Lee, are about to be put on trial in North Korea for illegal entry. Laura’s sister, Lisa, has been making the rounds to plead for her sister’s freedom. They are very scared for her. Who wouldn’t be.

I saw Lisa Ling on Good Morning America, where she said that if her sister had illegally entered North Korea during her investigation of female sex trafficking across the North Korean and Chinese border, it was by accident and it was a totally unintentional. She offered her “profuse apologies.” The report went on to discuss how Laura Ling has health issues (an ulcer), and a daughter waiting for her at home.

One would have to be a heartless cretin not to be sympathetic toward Laura Ling and Euna Lee. I am. I believe what Lisa says, and certainly have no reason in the world to dispute it. I join in her plea for the release of these two Americans held by North Korea.

But one thing bothers me. There’s a fellow I know, who I’ll call Jose, who also crossed a border illegally. His children were starving. He lived in a country where the regime was harsh and callous, and not inclined to care much for the welfare of Jose’s children. Jose’s health wasn’t all that great either, but he wouldn’t know what was wrong as he had never seen a physician. So Jose crossed a border illegally in the hope of getting a job, making some money and feeding his children.

Jose never found a job, as he was caught and placed in a prison. He was then told that he would be put on trial for illegally crossing the border. Jose tried to explain his purpose, that he was just trying to save his children from starvation and he meant no harm. He begged to return to his homeland, to his children. He offered his profuse apologies.

No one listened to Jose.

I waited as a watched the Lisa Ling interview on Good Morning America. As long as they were interested in the topic of illegal entry, this would be the perfect opportunity for Diane Sawyer to ask that Jose be returned to his family. There was no mention of Jose in the story. There was a great deal of hand-wringing over Laura Ling, as well there should be. Let her go.

Of course, the situations are entirely different. We are the United States of America. North Korea is, well, North Korea.

Update: To the extent an imperfect analogy could be used to make a point, it stops dead in its tracks with the sentencing of Laura Ling and Euna Lee to “12 years of reform through labor.”

Tolerance and Tolerance for Ambiguity

Dealing with defendants in state court, charged mostly with standard street crime of the malum in se variety, it’s common to expect the client to demand answers of his attorney, the most notable being “what’s going to happen?” While the obvious response is that we never know, lacking the ability to see into the future, it’s a very unsatisfying answer. Clients want to have a clue of whether they have a chance or are dead in the water. Naturally, they are happier to hear the former.

One underlying problem is the lack of tolerance for ambiguity. We can explain how the various pieces of the puzzle fit together, or should fit together if things go according to plan, but there are always variables that defy our prediction. Trying to handicap the outcome is a dangerous endeavor, often leading to discontent and recriminations later.

But the client doesn’t care at the time of the inquiry. Many of our clients lack formal education, or at least much of it, and have a remarkably low tolerance for ambiguity. Their world consists of concrete things, things that can be touched, seen or felt. Things either are or are not; they refuse to allow voids to exist because it disturbs the clarity of their world. It’s understandable.

The problem is that my inability to provide a concrete answer to their question leaves them to arrive at their own conclusion and attribute it to me. I tend to be fairly cautious and explicit in my discussions of outcome with my clients because of my concern for being as truthful with my clients as possible. Others differ. Yet I still hear the subsequent refrain, “but you said . . .” even though I didn’t. It doesn’t bother me that this happens. I expect it and tolerate it. It’s the nature of representing criminal defendants.

What surprises me, however, is that this lack of tolerance for ambiguity has reared its ugly head here with shocking frequency in the comments received from young lawyers. Most are lawyers, so lack of education can’t be the problem. Or can it?

My observation is that they engage in pervasive assumption to fill the gaps in information, but do so without the slightest recognition of what they are doing. Gestalt explains this phenomenon to some extent, but fails to address the fact that once they assume, they argue to the death the validity of their assumptions. Even when confronted with facts to the contrary, their belief in the infallibility of their own assumptions persists. What’s with that?

It’s of little real consequence when this happens on something as innocuous as the comment section of a blog. After all, it’s just sound and fury, soon to drift to the bottom of the page and be forgotten. Sure, tempers flare on occasion, and foolish words are written, but one need only ignore it for the feelings to fade away.

What’s more significant is that this abiding belief that these young lawyers maintain in their own assumptions. If they do this on a blog, do they do this when representing their clients as well? I fear they do. There are few things more dangerous for a lawyer to do than assume facts they don’t possess, and act upon them as if their assumptions were real. We are forced at times to fill in voids in our information, but must recognize that these are mere assumptions, of dubious worth and subject to change as better information becomes available. We can never afford to get stuck on our own assumptions. This is not tolerable.

Having given this some thought, I wonder why this remains true after the completion of three years of law school. Regardless of what insanity drives them to be so protective of their assumptions, one would think that law school would teach them to think like a lawyer, part of which is to appreciate and gain a tolerance for ambiguity. Is this a by-product of the Socratic method falling into disrepute, or of the lack of critical reaction by lawprofs? It’s hard for me to say, not having sat in a classroom for a number of decades. From what I hear, no one is ever wrong anymore. They are just “differently right.” Of course, that comes to a complete halt with the first judge they meet head to head, a very tough lesson indeed.

Encouragement and positive reinforcement are certainly important pedagogical tools, far more likely to motivate a student than criticism. Yet, there are indulgences that are inherently dangerous to a lawyer, or more precisely, the client. The lack of tolerance for ambiguity is one, and it appears that there is an abundance of tolerance for this lack. It’s got to stop. No matter how smart or self-absorbed a young lawyer may be, she cannot be allowed to believe that her assumptions take on the value of fact simply because they pop into her head and she believes them to be valid.

Ironically, I fully expect the people who have demonstrated the greatest inclination toward assumption to be the first to deny or defend it. And I shudder at the implications for their clients. I hope somebody teaching law school gives this some thought.

A Cache of Guns and Two Chickens

As every criminal defense lawyer knows, clients are sometimes a little short on cash to pay the legal fee. They mean to pay it. They want to pay it. They just don’t have it. It happens. So in an effort to reach an accommodation, we are forced to take payment in kind. Is there anything wrong with that?

According to this post by Dave Hoffman at Concurring Opinions, it’s not a great idea.

A pharmacist accused of murder decided to pay his lawyer with his firearm collection. When the Judge presiding over his case inquired as to how many guns, exactly, that collection entailed, a constitutional fight ensued.

“I gave every weapon of mine to my attorney. I swear to the Lord,” Jerome Jay Ersland said.

Oklahoma County District Judge Tammy Bass-LeSure last week allowed Ersland, 57, of Chickasha to be released on $100,000 bail but she banned him from any access to weapons. The hearing today was to see if he had complied with her order.

Ersland told the judge he no longer owns the weapons. Defense attorney Irven Box said he took the weapons and other personal property from Ersland as payment of part of the attorney fees in the case.

The report comes from the Oklahoman, which offers little clue as to why Box was reluctant to tell the judge how many guns he received in lieu of payment. Dave reads between the lines and concludes that the reason is that the murder weapon was amongst them.

This advice is generalizable. Take cash over credit, and credit over barter. And never, ever, take the instruments of the crime.

I don’t see that as being the problem. Rather, since the defense isn’t that Ersland didn’t kill the individual, but rather did so in self-defense as his store was being robbed, the gun is likely locked safely away in the evidence vault and isn’t in issue in any event. More likely, the number of weapons that Ersland kept would relate to the depth of his interest in maintaining deadly force, and the suggestion that having so many weapons, he was inclined to use them at the first possible opportunity. Motive for over exuberance in the use of a gun to stop a robbery.

Normally, the amount of the fee paid a lawyer is not privileged, a ruling that I fundamentally disagree with but the court never asked me what I thought about it. So if the fee is paid in weapons, it would seem that the number (not to mention type, value and other details) would be subject to the court’s inquiry.

Irven Box was asked how many weapons he received, and told Judge Bass-LeSure to go fly a kite. The basis for his refusal was the defendant’s privilege against self-incrimination:

District Attorney David Prater also said prosecutors could use the answer to that question against Ersland at trial.

This is a prime example of a good time to keep one’s mouth shut. Had Prater just stood there twiddling his thumbs, Box’s position may well have found no legal justification. But with the addition of the prosecutor’s acknowledgment that he planned to take this otherwise innocuous bit of information and use it against the defendant, suddenly Box has the force of the 5th Amendment behind him, and is not merely justified in his refusal to disclose information that would be used against his client, but stands tall as a defender of righteousness. A very well armed defender, I might add.

The judge was not pleased.

The judge at one point said she would put Ersland back in jail if he didn’t answer her question but eventually she decided not to revoke his bail. She said she had learned a lesson and will not in the future let a defense attorney collect a defendant’s weapons.

While the revocation of bail based upon the assertion of a constitutional right raises other problems, the judge’s threat amounted to nothing and, in the finest of legal traditions, falls under the heading of “no harm, no foul.” On the other hand, what business it is to the judge how the lawyer gets paid remains a mystery. Whether it’s a cache of guns or two chickens, it’s not her call and her approval isn’t needed.

As for Dave Hoffman’s admonition to prefer cash over credit, credit over barter, that’s a bit facile when your family’s next meal is paid for via a check bearing the name George Washington Law School. It’s not that criminal defense lawyers necessarily desire barter over cash, but that’s just the way it happens sometimes when we try to accommodate our clients.

Barr Is Right, But So Very Wrong

Bob Barr, the man who shut the doors to the courthouse on defendants for whom the system failed, says nobody understood him. From his New York Times op-ed in which Barr, no enemy of the death penalty, argues to spare the life of Troy Davis.

This threat of injustice has come about because the lower courts have misread the Anti-Terrorism and Effective Death Penalty Act of 1996, a law I helped write when I was in Congress. As a member of the House Judiciary Committee in the 1990s, I wanted to stop the unfounded and abusive delays in capital cases that tend to undermine our criminal justice system.

With the effective death penalty act, Congress limited the number of habeas corpus petitions that a defendant could file, and set a time after which those petitions could no longer be filed. But nothing in the statute should have left the courts with the impression that they were barred from hearing claims of actual innocence like Troy Davis’s.

Nothing? Try everything. Try that’s precisely what your beloved law does when an convicted man who claims actual innocence comes late to the party or gets smacked by the court on the first go-round and has to try for a second bite of the apple to show his innocence. That’s what your law says and does, Bob. Didn’t you read it?

But now that a man whose guilt is in serious doubt is about to be put to death, you’ve suddenly discovered that your law, so manly and firm in its end of “the unfounded and abusive delays” in court proceedings designed to make sure that only the guilty, the unquestionably guilty, the absolutely positively guilty, are executed. A bit disingenuous in light of the fact that your law left out any mention of allowing defendants who are “actually innocent” from coming back when his evidence or counsel improves.

The problem with Bob Barr’s epiphany is that I don’t, for a moment, believe that he would have done anything different in supporting his beloved law had someone argued that it would result in the execution of innocent people. There would be no sympathy, but hot rhetoric about abuse of the system by filthy murderers who feign innocence when we all know that they are guilty as sin. He would have shrugged it off as a casualty of war at worst. He would have pulled the switch on Troy Davis himself.

Using post hoc belief of innocence to cover the law’s inflexibility, and claim it was never intended to work that way, is palliative nonsense. Barr can claim to be the good guy, supporting Troy Davis, when he was the same congressman responsible for Davis’ plight. Now he blames the courts for following his law? It’s not that the courts shouldn’t be capable of finding a viable way around this misbegotten law, but that of all people in the country to have no standing to complain, Bob Barr is at the head of the line.

The message behind Barr’s conversion to sanity is that these are the views of the very people who are entrusted with crafting the procedures that seek to deny justice, claiming afterward that it wasn’t their intention. Well, wasn’t it your job to make sure the law you passed reflected your intention? Your newfound claim that your law is a monument to cavalier and clueless legislating hardly provides us with faith in your ability to serve.

Bob Barr now asks the Supreme Court to take the “activist” position of ignoring his law based on unintended consequences and rewriting it to prevent a single case of injustice, because Barr agrees that the execution of Troy Davis would be terribly wrong. Sorry Bob, but while you are absolutely correct that Davis should not be executed, he’s just the one who found his way onto your radar. Your law still shuts the door on thousands of other innocent men and women who might have a chance to find redress but for you.

It’s good that Bob Barr had his epiphany. Too bad they never seem to get religion while they still have the power to do something about it. Funny how that works.