The confluence of two issues raised, one by Eugene Volokh and the other by Rick Horowitz, presents a disturbing question as to who owns what when it comes to the law, and why we’re paying for things that should belong to all of us in the first place.

Eugene posted the question of whether Lexis and Westlaw infringe upon copyright when the publish appellate briefs.

The question is whether the commercial posting of the briefs is fair use; and fair use law is, as usual, vague enough that there’s no clear answer. I do think that the posting is quite valuable to researchers and to others who are trying to figure out what actually happened in a case, and why courts reached the results they did, and I think courts can consider this social value in the fair use analysis. It’s also quite unlikely that allowing such posting would materially diminish the incentive to write good briefs, or the market value of a good brief; that too is potentially relevant to the fair use inquiry. But the case isn’t open and shut, because there are no precedents (at least that I know of) that are clearly on point, because the various fair use factors seem to cut in both directions, and because fair use analysis is so vague in such situations.

It was indeed a sad commentary on something when San Francisco lawyer Francis T. Fahy’s vote mysteriously switched from plaintiff to defendant, thus ending the deadlock that prevented his return to his law practice. The California Supreme Court decided unanimously that the commentary was about Fahy, and stripped him of his license.

Certainly, his lack of fortitude to stand firm with his belief, to honor his oath as juror, and to tell the trial judge the truth (and not “disrespect the court”) don’t serve him well.  Fahy was an embarrassment.  But let’s not forget that juror’s switching votes to end a hung jury that kept them from other things is hardly a unusual issue.  Any lawyer who has sat while his jury remained out for days, four, five, six days, knows that deadlock is only as strong as the pull on the holdout juror.

The Allen charge is carefully crafted to suggest that it’s not intended to coerce the holdout juror into agreeing with the majority and giving up their firmly held belief.  But no one believes in their heart that it works that way.  It’s just more legal gobbledygook to a juror with pressing affairs to address. 

Now that juror reform commands that previously exempt folks must be part of the venire like regular people, no longer cloaked in that special treatment that annoyed so many and made jury duty seem unfair, we added a new dimension to the problem.  You see, when a mother of young children is called for duty and selected to sit, her mind is on the needs of her babies who have no one to greet them at the door, fix them a healthy snack, help with their homework and kiss their knee when they fall.  Is anyone so myopic to believe that the trial is more important to a mother of young children than the welfare of your kids?

While jurors can make arrangements for someone else to stand in their place for a while, time begins to take its toll.  First the time is lost to selection process.  Then more time is lost to the trial.  Finally, time is lost to deliberations.  That time is the worst, since after a day or two there is nothing that hasn’t be said.  Repeating positions over and over, to people who have heard it again and again, strikes no one as a particularly good use of time.  And the children are sitting at home, essentially motherless.  While they can live without mom for a few days, and while mom may be willing to sacrifice for a worthy cause, all of this is drained by the fourth day of deliberations.  It’s too long.  The sacrifice is too great.  There is no longer purpose to the sacrifice, and the kids really need their mother back.

But if the mom switches her vote to end the deliberations, return to her children and put everyone out of their misery, there is no penalty.  A lawyer can be disbarred.  A mom can’t be dis-mommed. 

Had Fahy been a physician, would he have lost his license?  What if he was a priest, would he have been defrocked? 

Inside the jury room, Fahy was not a lawyer, but a juror.  Indeed, the jury is told that his opinion is no more worthy than anyone else’s, and clearly they agreed with that assessment as his opinion carried no weight with the others whatsoever.  Not much of a recommendation, frankly, as a lawyer hold out who cannot persuade others to see his point of view doesn’t sound like much of a lawyer.  But since he was there solely as a juror, why would his license to practice law come into play at all?  Punish him for his misconduct if you must, but in the role he was playing, juror.

It struck me as silly pandering when it became fashionable to end the jury duty exemption for lawyers.  I don’t want one on my jury.  No one I know wants a lawyer on theirs.  Lawyers are distinguishable when it comes to jury duty from everyone else.  Courts are about law, and lawyers are, well, lawyers.  Nothing deeper than that, and that seems to me to be enough.  Reformers tend to overlook the obvious sometimes.

Having decided to ignore common sense and put lawyers on juries anyway, however, shouldn’t give rise to another potential means of pulling the plug on a bad juror cum lawyer.  It seems quite likely that Francis Fahy had some collateral issues, as a lawyer, that informed the court that he might not be the best of the profession, and might give rise to some sense that his disbarment was neither a great loss to the profession nor a decision to lose sleep over. 

Fine, if he’s a bad lawyer, disbar away.  But not because he was a bad juror.  That’s not a risk one takes when compelled to sit as a trial juror. 

Whether Atlanta lawyer Ella Hughes intended to make a point, or just let her feelings show, it clearly didn’t work out well for her.  Sure, the Georgie Court of Appeals reversed her contempt citation for the judge’s failure to give her the opportunity to purge the contempt before executing sentence, but that’s hardly vindication and the price, a $1000 fine and 10 days in jail, was steep. 

Hughes’ offense?   Looking at the judge with a sarcastic expression.

It doesn’t matter whether the judge, A.J. “Buddy” Welch Jr., handled the matter well.  It doesn’t matter whether Buddy deserved Hughes’ disdain.  It doesn’t matter whether Buddy deserved worse, as is often the case. 

Rule of thumb:  Offending the judge rarely* helps your client.  It often doesn’t do much for you either.

While I could hardly divine what really happened with Ella Hughes that day, or what she was thinking, I have seen a trend in young lawyers of allowing their displeasure with the judge’s rulings or actions show on their face, and sometimes in the words that come out of their mouths.  Do they not understand that their job is to persuade this person to do what is in their client’s best interest, not vent their personal spleen? 

There appears to be a mistaken understanding of the relative nature of the relationship in a courtroom.  The young lawyer is not the functional equal of the judge.  No matter what your professor taught you at Legal Theory Law School about due process, you are not entitled to express your personal feelings about the judge’s decision.  You exist in the well as an advocate.  The judge, for better or worse, sits as a decision-maker.  Pissing off the decision-maker is not the most effective way to advocate. 

As young lawyers may already be aware, not all judges are temperamentally or intellectually suited for the position.  Some are elected because they look remarkably like Judge Wapner.  Others for worse reasons.  But they still wear the robe and you don’t.  This is an important distinction, whether you want to acknowledge it or not.  You argue, they decide. 

A friend of mine tells a story about his arguing a point before a judge in Brooklyn Supreme Court.  After getting a little carried away with the judge’s inability to understand a nuanced point of law, he told the judge that the problem was the he, the judge, didn’t get it. 

The judge responded, “Counselor, are you looking to be held in contempt?”

The lawyer responded, “Not at this time, your Honor.” 

No client ever enjoyed a benefit from his lawyer being held in contempt.  Don’t forget why we’re there, and no matter how awful you think a judge’s decision or action might be, don’t get held in contempt.  Make your argument as firmly and clearly as possible, but know enough not to go over the line.  It helps no one.

*  There is one caveat: When the judge is about to something that will cause irreparable harm to your client, all bets are off.  Sometimes, taking a bad situation and making it worse will result in quicker and more effective review than allowing the normal course to play out.  Be very careful before going down this path, as it may be a path of no return.

Another acorn from our friendly blind squirrel, Above the Law, from  Raw Story :

The Southern Thirty Adolescent Center near Mount Vernon, IL, filed the lawsuit on behalf of three children in its custody, who the lawsuit says were tasered by Jefferson County sheriff’s deputies who had been called to help subdue two misbehaving children, aged 11 and 12. Neither of those children were among those who were tasered during what one news service described as a police “rampage.”

Dear Member Attorneys:

It has always been our mission to improve and increase the public’s access to affordable and reliable legal information and resources. In early February we wrote that we were developing a new system that in addition to allowing users to continue to submit free questions like they always have, would also allow our users to choose to pay a small fee to have access to additional features for their legal question (e.g. expedited answers, privacy options, enhanced communication with the attorney, etc.). Participation in this new paid system by our member attorneys would be purely optional and would have the potential to provide them with a nice additional revenue stream.

We received a significant response to this announcement. Most loved the idea, but others expressed concerns regarding such ethical issues as fee-splitting and attorney-client relationships. Because LawGuru has always been about our community of lawyers, we listened and took the concerns very seriously. Over the last four months, we hired some of the nation’s leading ethics attorneys and with their help, reexamined and redesigned the system to address these concerns.

Today we are happy to announce the introduction of LawGuru Answers! The key difference between this process and the process described in our February message is that now the users submitting paid questions and the answering attorney will be entering into a limited representation agreement which will create an attorney-client relationship which is limited in both scope (only involves the answer to the question) and duration (ends when the answer is delivered to and accepted by the user). Although a recent phenomenon, these types of agreements (also known as unbundled services) are gaining popularity and believed to be an integral part of the future of legal representation.

File this story under “What were they thinking?”  That was my first reaction when I read this disciplinary decision, Cincinnati Bar Association v. Mullaney, in which three lawyers were sanctioned  for partnering up with Foreclosure Solutions, a non-lawyer company which referred the lawyers foreclosure cases (yes, that’s right – cases where folks were about to lose their homes!) for $125, then $150 a matter. 

Mom, recovering attorney, post-modern neo-feminist, disrespectful dyke, unlikely punk, nice Catholic girl, passionate freedom-loving libertarian, thinking conservative, sappy romantic, spiritual redneck, softball enthusiast, shopaholic and unrepentant flirt.

Which is worse, a man’s sexual attack of a woman, or drunk driving?  These “clash of the titans” cases create a dilemma for advocates, all of whom promote their most hated offense as the worst thing that could ever happen.  Fortunately for 48-year-old Donna Powell, the attack trumped drunk driving, resulting in her acquittal.

From Newsday :

Powell, who admitted driving last October with more than twice the legal limit of alcohol in her system, said she was forced to get behind the wheel drunk after a man she had left a bar with took her to a remote area and attacked her.

The man,Long Island Jewish Medical Center executive director John Steel, denied in court that he had attacked Powell, though he admitted that he is addicted to crack, and said he took Powell to buy and then smoke the drug.

Powell did not tell police that Steel had attacked her when she was arrested, a fact that prosecutors said was a major hole in her story. Powell’s lawyer, James Pascarella of Huntington, said it is common for sexual assault victims to delay reporting attacks.

Happens all the time.  All the time.  Judge Beck found Powell credible, and that there was some external evidence to support her allegations.  He also found Steel less credible.  Crack addicts are often found to be less credible, and one should bear that in mind when considering their drug of choice.  Once Powell sufficiently established that the attack happened, the burden shifted to the prosecution to prove it didn’t.  Upon failure to do so, the justification defense prevailed

When the feces began to rain down on the Cambridge Police Department, and particularly on the head of Sgt. James Crowley, it was unclear what it all meant.  The details in the Boston Globe’s report were fuzzy, making it uncertain whether an officer was simply doing his best to make sure that a house wasn’t being robbed, a man over-reacted, a black man believed himself to be unfairly targeted and lost his cool. 

The police report offered a clear version of an officer just trying to protect and serve.  Police reports always provide a clear version.

But since the black man was Henry Louis Gates, director of Harvard’s W.E.B. Du Bois Institute for African and African American Research, further scrutiny was inevitable.  As the picture came into focus, reports firmed up the details of Gates’ encounter with Sgt. Crowley.

There is no question that a call was made by a white woman who observed two black men appearing to force a door to a house open, and the police responded to the call.  When they arrived at Gates’ home, he was inside. 

According to his lawyer, Professor Gates told the sergeant that he lived there and showed his Massachusetts driver’s license and his Harvard identification card, but Sergeant Crowley still did not seem to believe that Professor Gates lived in the home, a few blocks from Harvard Square. At that point, his lawyer said, Professor Gates grew frustrated and asked for the officer’s name and badge number.

According to the police report, Professor Gates initially refused to show identification.

Others, of comparable virtue, will argue that it was Henry Gates’ home, his castle, and no one, not even a cop, has the power to tell a man what to do in his castle.  Indeed, they might suggest that he come out firing, the defense of one’s castle being a primary duty of a homeowner.

Had a white man opened the door to Sgt. Crowley’s knock, it was likely that he would have been assumed to be the owner of the small white house on Ware Street.  Of course, the report was that it was two black men who were pushing against the door, so the inconsistency may have played some role in Crowley’s assumption. 

On the other hand, Henry Louis Gates doesn’t exactly give the appearance of a gangbanger.  With his cane in hand, he was a distinguished looking man.  Even in his mug shot, courtesy of HuffPo, he appears distinguished, if disgruntled.  But more to the point, when a cop knocks on the door to question whether a break in has occurred, the robber doesn’t usually answer.  These factors alone should have given Sgt. Crowley some sense that he was not staring a bad guy in the eyes.

There are some things we should not be compelled to do in our own home.  Be directed to step outside to speak with a police officer is one of them.  Prove to the officer’s satisfaction who we are is another.  While answering the door with a shotgun is not a sound approach, the Castle Doctrine does have a role to play here.  Henry Gates was within his sanctuary.  Sgt. Crowley had very good reason to believe that the homeowner answered his knock.  A calm conversation as to why he was there might have ended in Gates thanking the sergeant for his efforts in protecting his home from possible invasion, and the encounter would have ended without incident.  Instead, it ended with Gates’ arrest.

Was the tenor of Sgt. Crowley’s approach to Gates the result of racist assumptions, that the distinguished man who answered the door was black rather than white?  This can only be answered in a meaningful way if there was a basis for comparison.  It could well be the case.  Or, it could equally be the case that Sgt. Crowley would have done the same thing no matter what color the skin of the man who came to the door. 

The problem is that the American experience with police has achieved a certain degree of racial equality, in that police can be just as wrong in dealing with a white man as a black man.  The stories are legend of police officers demanding compliance from people of all colors except blue.  Be obsequious and survive.  Be defiant and suffer the consequences.  Black or white, defiance to the command of a police officer will not be tolerated.  It doesn’t matter whether the officer has the authority, or the propriety, to make demands; it only matters that he is a police officer.  Compliance is the only acceptable response.

Once Henry Gates showed Sgt. Crowley his drivers license and Harvard identification, an act of compliance that some will believe already exceeded any obligation on the part of a man standing inside his own home, the sergeant had everything he could possibly want to confirm, as if confirmation was necessary, that this distinguished man was within the walls of his castle.  The reports emphasize that Gates at first resisted Crowley’s demand for identification, but then complied. 

While the implication of the initial refusal is that Gates had his cockles raised to begin with, it’s important to bear in mind that he was being asked to prove to a cop’s satisfaction his right to be inside his own home.  Many, including a few hardened officers of the court, might well have refused the officer’s demand, that bone in their head requiring them to be passive and compliant having long been excised.  That Gates ultimately complied by providing identification is an act of cooperation above anything required of him as a man in his own castle.

Even if we were to credit Sgt. Crowley with a excess of zeal, but a well-intended purpose of making absolutely certain that no intruder had entered this lovely Ware Street home, he used up all his chits after checking Henry Gates’ identification.  That would have been a good moment to apologize for challenging a man within his castle and disturbing his tranquility.  An awkward smile, head slightly bent, and Sgt. Crowley might well have been offered some small degree of appreciation for his thoroughness, even if it exceeded what a thoughtful officer might have done.

Instead, Sgt. Crowley remained firm in his resolve that Henry Gates, the man unquestionably within his own home, acknowledge the sergeant’s supremacy of authority.  Gates, for his part, demanded the same of the sergeant.  Gates believed the officer’s conduct to be the product of racist excess, and he said so in no uncertain terms.  Some will find Gates to have rushed to an unwarranted conclusion, a hyper-racial sensitivity perhaps.  Those who do are likely white, and never lived the life of Henry Louis Gates.  Even if Gates was mistaken in his accusation that Sgt. Crowley was racially motivated, Gates is as entitled to believe in his view of events as anyone else.  We find it far easy to be critical of the conclusions of others, whose life experiences differ from our own, though we are absolutely certain of our own conclusions.  Ours are always justified.  Theirs may not be.

It doesn’t matter whether we interpret events the same as Henry Louis Gates.  Whether he was right or wrong is not for us to judge.  It is his interpretation of events that forms his reality, and it’s not as though it was an absurd leap into the abyss.  There is some very good reason to suspect that this would never have happened had this been the home of Alan Dershowitz.  Indeed, not even Sgt. Crowley would likely to have a sufficient metacognitive appreciation to explain why, at critical moments, he acted and reacted as he did.  Racial assumptions are often too deep below the surface to be facially appreciated.

But there is similarly a possibility, based upon a larger experience by those who follow the conduct of police officers, that this was unrelated to Henry Louis Gates’ race.  This encounter could have, and has, happened to whites as well as black, to Hispanics as well as Asians.  To old women and young men. 

Henry Louis Gates was arrested for engaging in “tumultuous” behavior.  Only in Cambridge would the complaint use the word “tumultuous”.  But many a man forced from his castle upon the command of a police officer who refused to accept that he was at home would have been outraged.  Tumult seems an appropriate way to act.  The crime was Gates’ hurling words at Sgt. Crowley at a time when the sergeant commanded him to be obsequious and compliant.  Gates would not calm down.  There is no law that requires him to be calm because a police officer ordered him to do so.  Other than the expectation that we do what an officer tells us to do, no matter what.

It may well be that what happened to Henry Louis Gates reflects, as he is accused of screaming at Sgt. Crowley, “what happens to a black man in America.”  Because the black man happens to be the director of the W.E.B. Du Bois Institute for African and African American Research at Harvard, perhaps the pre-eminent black scholar, it will open a discussion that we still need to have, black president notwithstanding. 

It is also possible, however, that what happened to Henry Louis Gates is the outgrowth of the conflict between law and order, order represented by police who have been empowered, in our p
ost 9/11 age, to believe that their every command is the law, that our blind obedience is mandatory.  Other than a few old-timers on the Supreme Court who live in a fantasy world where ordinary people can assert their rights and refuse to comply with the command of a police officer with impunity, this encounter between a distinguished scholar, within his own home, and a police sergeant who believes that his command is sufficient to create the divide between citizen and criminal, may offer the chance to question who commands whom in our society.

Perhaps Henry Louis Gates suffered the experience of a black man in America.  Perhaps he suffered the experience of all men in America.  The conversation needs to include both possibilities, as neither one is acceptable.

Update:  The AP reports that charges against Gates have been dropped.

The city of Cambridge issued a statement saying the arrest “was regrettable and unfortunate” and police and Gates agreed that dropping the charge was a just resolution.

“This incident should not be viewed as one that demeans the character and reputation of professor Gates or the character of the Cambridge Police Department,” the statement said.

Is this the end of the issue?  I don’t think it’s going to be quite that easy.