Monthly Archives: July 2009

Hope Steffey Settles With County

You may remember the disgusting videos of a young woman, strip searched by Stark County, Ohio police, and left naked in a cell, all under the watchful eye of male police officers. If you don’t remember, please go back and take a look. It’s a video you won’t soon forget, particularly if you have a mother, wife or daughter.

Via Carlos Miller, some good news.

U.S. District Court Judge David Dowd said in a court order that the plaintiffs, including Sheriff Tim Swanson and the Stark County Board of Commissioners, “have entered into a resolution of the plaintiffs’ case against those defendants, reserving only a determination by the Court as to the amount of attorney fees and costs.”

The amount of the settlement, however, is undisclosed, a rather strange thing given that it would appear that the cost of the police abuse of Hope Steffey (which had earlier been spelled “Steffi” based on news reports, but is different in this report) will be born by the taxpayers. Don’t they have a right to know just how much their police have cost them? Since when does government impropriety get to be swept under the rug so that the citizens, for whom the cops exists, are left to wonder?

When asked if the settlement is an admission of guilt, Sheriff Swanson told The Investigator Tom Meyer, “No reaction, Tom” and he hung up.
Other county officials had no reaction either.

Of course, it’s great to hear that Hope Steffey received a settlement for the harm done in this egregious case, though disappointing that the local sheriff would still hide from what happened. I can’t blame her attorneys for settling, as their duty is to Hope, not us. But it’s a shame that the full panoply of what went horribly wrong here won’t be aired publicly as a message to police everywhere. And it’s a shame that the individual cops involved won’t have to pay personally for what they did to this young woman.

It’s not everything one could want in a settlement, but it’s better than nothing. Better this than giving these sick, disgraceful cops medals.

The Valid Court Order (Update)

There is a supposition on the part of the public that courts, even when wrong, wouldn’t do anything completely nuts. After all, there are appellate courts, more appellate courts, and certainly lawyers, watching them closely, and any judge who does something completely bonkers would be called out immediately. Right?

Of course, that didn’t help Hillary Transue, but there are always exceptions.

Meet Frank Hatley. He’s an exception too. From AJC :

Frank Hatley has languished in a South Georgia jail for more than a year.

The reason? He failed to reimburse the state for all the public assistance his “son” received over the past two decades.

The problem? Hatley is not the biological father — and a special assistant state attorney general and a judge knew it but jailed Hatley anyway.

It’s not like Hatley didn’t try. He did. He tried really hard.

Even after learning he was not the father, Hatley paid thousands of dollars the state said he owed for support. After losing his job and becoming homeless, he still made payments out of his unemployment benefits.

His new lawyer says that “Hatley had paid a total of $9,524.05 in support since April 1995.” Not good enough, apparently. You see, Hatley was a “deadbeat dad” at the time it was determined that he wasn’t the dad at all. While the court relieved him from future child support payments, he remained obligated to pay past due support.

The Aug. 21, 2001 order, signed by Cook County Superior Court Judge Dane Perkins, acknowledges that Hatley was not Travon’s father.

After that, Hatley paid almost $6,000. But last year he was laid off from his job unloading charcoal grills from shipping containers. He became homeless and lived in his car. Still, Hatley made some child support payments using his unemployment benefits.

By May 2008, he apparently had not paid enough. In another order prepared by Reddick and signed by Perkins, Hatley was found in contempt and jailed. When he is released, the order said, Hatley must continue making payments to the state at a rate of $250 a month.

Did anyone mention to Judge Perkins that he’s got the authority to vacate a facially erroneous order nunc pro tunc? Or perhaps there was no point in making the suggestion, since someone has to pay the freight and better it’s Hatley than, say, the real father?

So what’s to be done about this facial fiasco?

It may be difficult for Hatley to get out from under the court order, said Atlanta family lawyer Randall Kessler, who is not associated with the case. “It’s definitely unfair,” Kessler said. “But at the same time, he’s dealing with a valid court order.”

That’s right. It’s a valid court order. And isn’t that all that really matter?

Update: Frank Hatley was released from jail by Judge Dane Perkins.

Superior Court Judge Dane Perkins ruled that Hatley was indigent and should not be jailed for not being able to make child support payments. Perkins postponed a decision on whether Hatley should have to make any more back payments on child-support for a child who is not his.

Of course, this was all true and known at the time Perkins put Hatley in jail for contempt for failure to pay child support. There’s nothing like religion and a job well done by attorney Sarah Geraghty of the Southern Center for Human Rights.

‘Cause You Got To Have Friends

A few of my fellow blawgers have posted “around the blawgosphere” posts this week, Windy. Lammers. Bennett. It’s a nice thing to do, both to share posts with readers that they might not otherwise see and to give a little link love to one’s friends in the ‘hood. Nothing wrong with being a good friend.

This is what’s been getting me in trouble with some of my friends, and others, in the blawgosphere lately. I’m something of a traitor. There are other blawgs around with whom I regularly interact, and with whom I share a great deal in common. They are my friends in the blawgosphere. I’ve grown to like them personally, respect their views, admire their efforts.

But sometimes, I disagree with something they write. For some of my friends, a healthy disagreement is no big deal. Bennett and I disagree about stuff all the time, and hash it out in public. It’s never affected our friendship, and it’s never taken personally. It’s our nature as trial lawyers, criminal defense lawyers, to take issue with ideas and duke it out.

Others, unfortunately, don’t see it that way. Not at all. It’s not that they can’t tolerate the fact that someone doesn’t agree with their every position, but that a post, a public writing taking issue with their public writing, is taken as a personal attack on them. Friends don’t attack friends. Yesterday we loved each other. Today, I hate you.

This scenario reflects a couple of fundamental flaws in the blawgosphere, and my hope is that by airing the problem, those who I’ve offended in the process will gain a better understanding of what I’m doing and why I’m doing it. Let me start by saying, just because I may not agree with something you’ve written doesn’t mean I think you’re a terrible human being, a blithering idiot or disgusting, ugly and a bad dancer. I just disagree with one of your positions. I think you’re wrong about something. So what? Maybe I’m the one who is wrong. You can disagree with me too, you know.

One such “issue” where I depart from the blawgosphere orthodoxy is work-life balance, a topic of particularly importance to a certain subsets of the blawgosphere. It’s likely that those who push the work-life balance are over-represented online, their being more attuned to technology and, frankly, having more time to promote a cause that suits their desires and comports with their lifestyle.

This creates an illusion of a groundswell of support for the cause. It’s an illusion because the other side is grossly under-represented online, yet predominant in the real world. Consequently, many begin to believe their own press releases, or support the cause that best suits their desires, even though it may be damaging to the profession and to them personally, when they get smacked in the face with the harsh reality that it’s a scam. Wanting to believe in something doesn’t make it so.

I’m asked regularly why I kick sand in the face of my friends in the blawgosphere on this subject. Why, oh why, can’t I just stick to criminal law subjects, stay within the bounds of my niche, and leave the work-life balance crowd alone. On one level, it’s because Simple Justice is a vehicle for things that interest me, whether within the criminal law arena or elsewhere. But on a deeper level, it’s because there is just too much deception going on in the blawgosphere, and few people want to confront it. Indeed, much of it is self-deception.

Someone has to tell the other side of the story. This is particularly true when people surround themselves with the chorus, like-minded wishers who keep pumping a pipe-dream because they really, really want it to come true.

Having been around the law long enough to remember when the challenge was whether lawyers should be allowed to advertise at all, I’ve watched as the professionalism of lawyers deteriorated. Law turned from profession to occupation, from practice to business. For many of my younger brethren at the bar, the concept of professionalism is foreign. Today, we are deluged with marketers and marketing, all whispering in our ear that everybody does it, that it’s the only way to survive, that we all market and that anyone who questions it is a liar or a fool.

The work-life balance agenda is inextricably tied to the marketing cabal, as the former is the feeder that supposedly feeds the coffers of part-time lawyers such that they no longer need to put the client first. I know, they insist that they do put the client first, but through their use of technology, planning, force of will, they somehow manage to do it all and do it better than old timers like me. This, according to the people who are selling their magic secrets, is how one can make millions being a lawyer while being home for dinner at 5. Horse hockey (h/t Jdog).

I’ve grown somewhat intolerant of those who would pursue an agenda that continues to diminish the professionalism of the law. We are not about making millions, though a good income will come from a learned profession as an outgrowth of excellence. We are not about kid lawyers with website touting their “expertise” when they’ve never tried a case. I see rampant lies across the internet, and none of this seems to sufficiently trouble the chorus to either change their evil ways or speak out against the liars.

But the dream of work-life balance, the one where there is no price to pay for leaving the office at 5 and kicking back to play video games in midday, presents as great, if not greater danger, to the professionalism of lawyers as it is primarily designed to appeal to those least capable of understanding the inherent dangers. So many young lawyers, coming out in a troubled economy and raised to believe that they are entitled to every shiny thing they see, willingly buy into this scheme.

These are the kids who put up sham websites to suck in clients who are in true need of help, but who buy the time of people utterly incapable of providing the representation they need, and utterly lacking the desire to fulfill the obligations that once characterized lawyers. The client suffers so the lawyer can make a buck. The lawyer loses his dignity and integrity, but no one in the movement speaks to those issues.

Travel around the blawgosphere and see what interests people, what agendas they are pursuing. It’s disheartening. A wealth of marketing. A dearth of competence. A lack of comprehension that you aren’t a brilliant lawyer because your marketing guru says so. Someone has to be the wet blanket at this beach party bingo, because Moondoggie is going back to his airline pilot job come September and Gidget is going to be left alone on the beach with no one to play with. I am so sorry to be the bearer of bad news. I wish you could all get your way. But this isn’t like your third grade soccer team, where everybody gets to play.

There are clients, real people who suffer real consequences, as a result of the delusions perpetrated on the internet. They come to lawyers believing them to be competent, even expert, and willing and capable of helping them, saving their lives sometimes. And the lawyer’s primary focus is to get paid and be home by dinner, with the client merely the conduit for the transfer of revenue and proof of the mastery of the secret to success. Is any of this getting through?

So I leave my niche in criminal law from time to time to be a voice in the wilderness, that we are not selling laundry detergent, but are lawyers, professionals, in whom p
eople repose their trust. I’ve seen their children cry when their lawyers fail to fulfill their duty. The need to enjoy a happy lawyer life will never wipe away their tears. I know that I’m being a pedantic old fool again as I write these words, but the truth is that, all the fun and sarcasm and humor aside, there is so much human pain belying what we do that this is no joke. It’s just not something to keep us busy between games of Mortal Kombat or junior’s soccer game.

For those whose toes I step on in the process, it’s not because I don’t like you or respect you. It’s just that I disagree with you on this subject, and I believe it to be important and serious. Sorry for the hard feelings I’ve caused, but it’s something that I believe needs to be done.

I hope we can be friends even if we disagree.

Welcome To Winnfield. Have A Nice Day

Winnfield, Louisiana. It sounds like a nice enough place, though the Anglo name doesn’t jive quite right with the French tradition. But according to this story in the Chicago Trib, it’s probably not where you want to hang out if you’re in the mood for a quiet gulf coast vacation.

It was the birthplace of Huey and Earl Long, a couple of vivacious Louisiana politicians. The police chief committed suicide three years ago after losing a close election amid allegations of scandal. The district attorney killed himself four months later, after skimming $200,000 from his office and selling dispositions to defendants. The new police chief got a pardon from former Governor Edwin Edwards, himself in prison for corruption, for a drug offense. And the son of the old police chief, and protégé of the new one, Scott Nugent, is a police officer himself. A police officer with a Taser.

Nugent likes his Taser. He used it a lot. On a 21 year old fellow named Baron “Scooter” Pikes. Now Pikes is dead.

At 1:28 p.m. last Jan. 17, Baron “Scooter” Pikes was a healthy 21-year-old man. By 2:07 p.m., he was dead.

What happened in the 39 minutes in between–during which Pikes was handcuffed by local police and shocked nine times with a Taser device, while reportedly pleading for mercy–is now spawning fears of a political cover-up in this backwoods Louisiana lumber town infamous for backroom dealings.

Naturally, Nugent made up a story about Pike’s resisting, about Pike’s telling him he had asthma and was high on PCP and crack. In Winnfield, Louisiana, that should have been all it took to clean up a little mess. In the scheme of life in Winfield, one dead black kid at the hands of a white police officer was no big deal. Even if Winnfield is just down the road from Jena, Louisiana, and Pike was first cousin to the lead defendant in the Jena 6, Mycah Bell.

But somebody screwed up in Winnfield. It turns out that they have a medical examiner who wasn’t on the take, or part of the club, or one of the boys.

An autopsy determined there were no drugs in Pikes’ system and that he did not have asthma, according to Dr. Randolph Williams, the Winn Parish coroner.

After consulting about the case with Dr. Michael Baden, a nationally prominent forensic pathologist, Williams ruled last month that Pikes’ death was a homicide. On the death certificate, he listed the cause of death as “cardiac arrest following nine 50,000-volt electroshock applications from a conductive electrical weapon.”

It can’t be easy to be an honest man in Winfield.

Williams is no stranger to controversy in Winnfield. Back in 2004, his garage was firebombed–he suspects the attack was ordered by the former district attorney–and he says he’s been shot at 19 times by people upset with the independence of his investigations. He wears a gun holstered at his waist even while sitting safely at his desk.

But it hasn’t stopped Williams from doing his job.

“This case may be the most unnecessary death I have ever had to investigate,” Williams said. “[Pikes] put up no fuss, no fighting, no physical aggression. The Taser was not used to take him into custody. He just didn’t respond quickly enough to the officer’s commands.”

It’s almost impossible to believe that there remain backwaters of corruption like Winnfield in a flat world, where we are aware of wrongs half way around the world in a flash. How is it possible for little hellholes of flagrant corruption and harm exist unnoticed by state government, not to mention our federal friends, who have these civil rights laws designed to make sure that no place where the rights of citizens of these United States are so systematically undermined by everyone from local government officials to tough guys like Nugent with tasers?

And of course, our old friend, the Taser, is the Winnfield weapon of choice, raising yet another question. How many times should an officer, whether scum like Nugent or a “well-intended” Taser jockey, zap someone before less than lethal becomes a definite killing tool?

What’s more, safety guidelines issued by Taser International Inc., the manufacturer of the device that is now used by more than 12,700 law enforcement and military agencies worldwide, warn officers to “minimize repeated, continuous, and/or simultaneous exposures.”

Company officials, citing dozens of medical studies, insist Tasers are safe when used properly. But few of those studies examined the effect of multiple Taser applications over a short period of time. The U.S. Department of Justice, in a study released in June, concluded that “the medical risks of repeated or continuous [Taser] exposure are unknown.”

Hey, I’ve got an idea, Taser guys. While the risk of repeated or continuous infliction of 50,000 volts are “unknown”, suggesting that it’s a study you really don’t want to conduct, how about making sure that your fine weapon can only discharge, say, twice before the battery discharges or the weapon shuts down? Is it necessary that it be capable of firing 9 times? If there is a legitimate reason to fire it 9 times, do we not have a problem that’s bigger than a Taser?

I know, Tasers don’t kill people. Whatever. Still, when you put it into the hands of a cop like Nugent, in a place like Winnfield, Louisiana, any safeguard will help.

H/T Injustice News

Fidelity to the Law is No Excuse

The games have begun. It’s not about whether Sonia Sotomayor will be confirmed. At Senator Lindsey Graham (R-SC) said, she’s got it locked provided she doesn’t have a “meltdown”. You can make book on that.

But as much as Senate confirmation hearings have turned into Kabuki theater, the political equivalent of Dancing with the Stars as Dahlia Litwick called it, it’s not without its interesting moments. Most will recall when John Roberts explained the role of a Supreme Court justice as an “umpire”. merely calling balls and strikes. That certainly caught the attention of many, and subjected Roberts to some criticism that still haunts him.

After hours of listening to sounds come out of the mouths of Senators, Judge Sotomayor finally took her turn at the microphone, as if this hearing had something to do with her. She explained :

In the past month, many Senators have asked me about my judicial philosophy.

It’s simple: fidelity to the law.

How many hours of thought went into these few words? And that’s the best they could come up with? Fidelity to the law? What the heck does that mean?

Well, this is disturbing. I’ve suggested before that the conservative attack on Sonia Sotomayor is about as misguided as it gets. I suspect Sen. Graham gets it; that they’ve got as much of a friend in Sotomayor as the Republicans are going to get from a Democratic president. No reason to piss her off, as she’s assuredly going to be a vote they need going forward, and there’s a better than middling chance that Judge Sotomayor, at least when it comes to criminal law issues, is no William O. Douglas. She may not even be William Rehnquist.

But fidelity to the law? Has anyone ever urged the philosophy of being unfaithful to the law?

Some will try to explain what this means. They’re wrong. It means nothing. It means that a bunch of wonks came up with a phrase that is utterly meaningless to counter the rhetoric that would be used against her. Its only purpose is to sound as if she said something when she really didn’t. It’s bulletproof, because it’s meaningless.

The point of preparing for Senate confirmation hearings is to escape unscathed. Let nothing be said that can used against her and it’s a good day. But what does this tell us about one of nine who have more to say about what the government can do to its citizens than anyone else in government, save the big man himself? Nothing. Absolutely nothing.

Appointment to the Supreme Court of the United States of Americans a big thing. It’s a lifetime appointment, and a bundle of power. Some judges have found it to bring a freedom that few can experience or appreciate. No longer need they be slavishly concerned with precedent or fear of reversal. They are freed from the constraints of criticism, since they will be criticized by one side or the other no matter where they come out. Yet they will still wear the robe for as long as they wish, no matter how harsh their critics may be.

This empowers a person to do the job of Supreme Court justice. What that job may be, in their eyes, is the real question. That confirmation is subject to political scrutiny is old news. But the outliers have all imposed their own views on the shell of Sonia Sotomayor, leaving the nation to pretend that they know her and have some clue who is being handed this vast power. Conservative voices take for granted that President Obama wouldn’t appoint her if she wasn’t an evil liberal. Worse still, liberal voices assume the same thing, proving the fools don’t respect ideological lines.

The Supreme Court wouldn’t be needed if deciding cases was easy or simple. Lex fidelis isn’t a philosophy, but a cop out. When the show closes, we’re going to have a new justice on our Supreme Court. Who is this Sonia Sotomayor person, and what will she do with our Constitution? Inquiring minds want to know, and “fidelity to the law” tells us nothing.

Naked Lawprof Mudwrestling, Co-Ed Edition (Update)

I’ve made no secret of the fact that I don’t think well of the Ann Bartow brand of hyper-feminism. She not only finds sexism under every rock, but attacks it with a viciousness that raises an image of a rabid dog, foaming at the mouth, who will rip out the throat of every offender. And enjoy it.

The problem is that Bartow, wielding the club of sexism in the hallways of the Academy, is the keeper of the feminist orthodoxy. It would be a crime against scholarship to be branded sexist, so the rest of the law professors put their head down and scurry past Bartow when they pass her in the hall, hoping to avoid her harsh gaze. A sigh is emitted as they escape unscathed. This power to evoke deathly fear allows Bartow to be as brazen as she wants. While the rest of the academics resort to a painful civility, beyond a fault to the point of abject unclarity, Bartow will have none of it. She can call out anyone.

UCLA law held a Symposium on Heller, and Bartow attacked. The flaw was that it included 14 men and 2 women lawprofs. Then came this exchange:

uclastudent says :

July 8, 2009 at 7:57 pm

Two points:

One, the slating of the Symposium Issue of the UCLA Law Review is done not by the Law Review staff but by the faculty.

Two, this symposium was on the Second Amendment. It’s my understanding that this topic tends to be dominated by a small group of legal scholars. I would not blame the Law Review or the faculty for any gender imbalances here.

Ann Bartow says:

July 8, 2009 at 8:44 pm

Two, this symposium was on the Second Amendment.

Really? I had no idea! Asshole.

Many of the articles listed in the ToC are written by people who do NOT have any particularly notable record of previous Second Amendment scholarship. So the field was pretty open, and more women could have easily, and without any quality dilution, have been included.

This was more than Eugene Volokh, who happens to be a lawprof at UCLA, as well as a Second Amendment scholar, could stomach. Approaching Bartow’s venom with a brutally civil, even-keeled tone, Eugene took one of the biggest chances a lawprof could: He stared down the keeper of the feminist orthodoxy.

So we have a vulgar insult of a perfectly reasonable commenter. We have what strikes me as either an incorrect summary of the credentials of those who participated, or at best an unreasonably blinkered sense of what credentials conference organizers might look for (that’s if Prof. Bartow’s view is that Cook’s and Kleck’s stature as gun control policy scholars, and Alan Gura’s role in the case, don’t count as relevant credentials). And we have an unsupported generalization about how there were other equally qualified women whom we could have included. All in all, not a particularly persuasive criticism, it seems to me.

Not only did he call her out on her bad behavior, but on her disingenuous allegations.

One commenter at Volokh made a point that’s worth repeating. What Ann Bartow indulges in is scholarly narcissism, where she is so “absorbed in their own identity and victimization to make it their focus of scholarship” that there can be no scholarship that doesn’t encompass her neo-feminism. What use would a symposium on Heller be if it included women, with neither interest nor background in 2nd Amendment issues, simply because of their gender? Yet Bartow counts the numbers, no matter what.

Eugene took a huge risk in challenging the keeper of the feminist orthodoxy, facing being branded as sexist for being so bold as to challenge Bartow. He demonstrated both the guts to stand up to her, as well as the fortitude to protect his UCLA student from her abuse. Many other male counterparts have folded like a cheap suit in the face of Bartow’s venom, at most trying to weasel out from under her gaze in the hallway. Not Eugene Volokh.

My hat’s off to Eugene Volokh.

Update: And there’s more fun and games abrewing over at Feminist Law Profs, where Eugene calls Bartow on another of her red-herrings:

Eugene Volokh says:

July 14, 2009 at 1:17 pm

Hmm — the average fraction of women in state legislatures for all six of the supposedly most dysfunctional states (not just South Carolina) seems to be nearly the same as the average fraction for all the states. New York is #22; Nevada is #12; Illinois is #17; Alaska is #27; South Carolina is #50; California is #15. The average is just a titch below #25. Likewise, if one averages together the percentages of women in the state legislature in those six states, one gets 23.83%, almost indistinguishable from the nationwide 23.5% average.

If I’m right on that, then doesn’t the South Carolina situation indeed seem to be a coincidence, at least based on the data that this post points to? Or am I missing something?

But Bartow is not to be questioned at home!

Ann Bartow says:

July 14, 2009 at 2:11 pm

Why are you so desperate for my attention, Eugene? The posts and links at your blog, the flurry of private e-mails you instigated, now this comment – very odd.

Sassy, isn’t she? But then, isn’t every man desperate for Ann Bartow’s attention? Really? After all, if it can’t be about reason, than it must be about passion. Few are as passionate as Bartow.

Return to Sanity Looks Crazy

Twenty years is a very long time. A very, very long time. Make no mistake about it. It’s looooonnnngggg. Back in the old days, a sentence of 20 years was the length one received for a murder. That’s right, a murder. The type of thing where a person deliberately took the life of another human being. Why? Because it was a very long time.

Everything changed with Bernie Madoff. Suddenly, 20 years seems like a gift. A slap on the wrist. Easy time. Soft.

Marc Dreier was sentenced by Judge Jed Rakoff yesterday to 20 years in prison for stealing somewhere between $400 and $700 million dollars. That’s a lot of money. A couple of years ago, we would be asking how any lawyer could steal so much money, but today it falls far short of shocking.

Jonathon Streeter, who spoke on behalf of our government, asked Judge Rakoff to sentence Dreier to 145 years. According to the New York Times, Rakoff wasn’t impressed.

“Mr. Dreier is not going to get much sympathy from this court,” Judge Rakoff said, “but he is not Mr. Madoff from any analysis, and that’s why I can’t understand why the government is asking for 145 years.”

Perhaps I can help the judge to understand. It’s because Madoff is the new gold standard of care for federal sentencing. If you care about the victims, then this would be the sentence to impose. If you care to send a message, then this is the message to send.

The problem with Madoff is that a sentence that falls short of the bar sends a message as well. The message here is that the victims of Marc Dreier are less worthy than Bernie’s. The message is for would-be thieves is that it’s open season on massive fraud again. Woo hoo!

No, neither of these reflect the messages that Judge Rakoff intended, nor the messages that anyone should take from the Dreier sentence. Rather, they reflect the distortion caused by the Bernie Scale. Under any other circumstance, the sentence imposed on Marc Dreier would have been perceived as severe. Remember, 20 years is a very long time. It’s only in comparison to Bernie that this sentence pales. Every sentence will be assessed by the Bernie Scale from now on.

At the end, Marc Dreier was a sad, pathetic man. He attended Yale College and Harvard Law School. It might be time to consider these institutions to be a negative, given how fragile Dreier’s self esteem appeared. He was a product of an era when fabulously successful lawyers were the mere handmaidens of financial bonus babies. A lackluster trader got a bigger bonus than the gross revenue a hard-working head of firm could anticipate, even with a blue-blood educational pedigree. No wonder Dreier felt like such a loser.

Judge Rakoff’s sentence, unlike the one Judge Chin imposed on Bernie, was clearly meant to give Dreier the hope of walking out of prison one day. Rakoff wrangled a concession from Streeter that a 30 year sentence, like 145, was a life sentence. He then imposed 20, which means 15 to 18 years at worst. So Dreier will be done in his late 70s. He should live that long, but he’ll be broke and broken. That’s sufficient to serve the legitimate purposes of sentencing, right? Well, at least it used to be.

A sentence of 20 years was once viewed as a harsh sentence. A serious sentence. A sentence that sent a message that a crime would not be tolerated, and that anyone convicted of that crime would see his life destroyed. The seriousness of a 20 year sentence hasn’t changed at all. The perception of it being harsh is now gone, barely registering on the Bernie Scale.

Sentencing will never again be viewed the same. What will it take to send the next message. Life plus cancer?

The Media Loves A Title

Miami criminal defense lawyer Brian Tannebaum, miffed at watching former Westchester County District Attorney and current TV small claims arbitrator Jeanine Pirro on his tube opining on the Michael Jackson child custody issue, a subject as close to Pirro’s competencies as finding a husband who isn’t a criminal, asks the age-old question, why?

Before delving into Brian’s deep and thoughtful angst-ridden inquiry, I must give credit to Pirro for her ability to piss people off at the bottom end of the eastern seaboard, even though her third-rate attempt at playing Judge Judy on an off-brand network has a viewership of thirty-seven, most of whom are seated in the common room at Westchester County jail. She might have a future in politics if she replaces Bernie Kerik as her campaign strategist.

Lest anyone think I’m taking a gratuitous cheap shot at Pirro in the course of discussing a greater issue, let me state for the record how much I admire her effort at rehabilitating herself and pushing her way into a position of prominence. I wouldn’t be at all surprised if she winds up with her own talk show, modeling Jerry Springer perhaps. She is an inspiration for all of us.

Back to Brian now. His beef is the medias irrational love of the “former prosecutor,” and even more particularly, “former federal prosecutor,” as if the cache of this title, bestowed upon tens of thousands of young people who march in and out of the United States Attorneys offices, as well as local District Attorneys offices, annually, elevates them to hyper-credibility when it comes to 30 seconds of opinion on subjects wholly unrelated to any legal work they’ve ever performed.

A commenter, John Freeman, to Brian’s calm and deliberative discussion reprises the question of what makes a “former prosecutor” so special.

The fact of the matter is that my experiences as an AUSA (and ADA in NYC) gives me credibility and insight when I recommend a course of action to fight off the government’s next move.

This is an asset I proudly bring to my clients’ cases every day.

In case you didn’t click on Freeman’s name, his criminal defense lawyer website uses the URL formerfedlawyer.com. Think he’s impressed with his credentials as a former prosecutor? Many are. Moreover, many former prosecutors, who have since been weened from the public teat, see their former lives as being their primary attribute as a defense lawyer. Certainly, it couldn’t be their competency at cross-examination, an art rarely developed in the prosecutor’s office. And not their experience devising a stratagem on behalf of defendants, never having had the need or opportunity to do so. But they believe that their inside knowledge of the workings of their former office gives them a marketable insight.

The error of these notions have been discussed before, both in terms of the prosecutor’s coming of age when he learns that a defense lawyer isn’t a prosecutor forced to earn a living, as well as the propriety of perpetuating the deception of the public in believing that former prosecutors possess some insider sway over their former office. That Freeman fights for his right to convince the public that experience as a prosecutor gives him credibility and insight that, say, a criminal defense lawyer who has fought well and successfully for defendants could never match shows where he places himself on the spectrum of internal and external integrity. If he wants to believe this makes him special, whatever. That he contends it’s his right to mislead the public, not so much.

But Brian’s problem is less with the individuals who work overtime perpetuating the myth than the media, which ought to know better.

I too have had this discussion with some media friends, explaining in small words why “former federal prosecutor” beneath the talking head is not merely meaningless, but counterproductive to their mission of providing accurate information. They scoff at me. Hah!

As my media friends explain to me, using words of equal length to mine, I am so naive. The criteria for who is used as a talking head on air is: First, unconditional availability at the drop of a hat. Second, a means to create instant credibility to the largest mass of audience possible. Third . . .there is no third. That’s it.

Here’s how it flows. If they can nab someone who is a household name and still willing to show at a moments notice, great. If they can corral a law professor (even though she’s never seen the inside of a courthouse), who by public definition is both scholarly and neutral, fine. And if neither of the foregoing is available, they shoot for “former federal prosecutor,” or lose the “federal” if they’re having a really bad booking day.

The appeal is obvious: They had a title that strikes an immediate reaction of credibility in the unknowing public. It’s not that they are trying to promote the genre, but that they aren’t willing to waste their time fighting it either. The public is impressed by titles. The public attributes virtue to titles. Since most people aren’t governmental officials in any respect, and since we’ve elevated governmental officials to minor iconic status, they’ve got something that defense lawyer do not, even if only in the past tense.

From the media point of view, don’t blame them that they are pandering to the public. They’ve got sudsy bubbles to sell. If a former prosecutor plays better in Peoria, so be it. Not their job to inform and educate the public, right?

Understanding how the news works, reporters need someone with adequate credentials to fill the hole in their piece requiring an “insight” to flesh out their story. Good reporters want someone both credible and with real insight. Other reporters aren’t as picky, seeking only a warm body to nod in agreement with their preconceived question. When the warm body comes with a built-in title that plays to the public’s mistaken perception of what constitutes credible, their job is easier, their mission fulfilled.

But before one blames the media, or former prosecutors, for playing to the prejudice and ignorance of the crowd, consider this. Lawyers, on the whole, have paved the way for this problem, by willingly offering themselves as free lunch meat in the media sandwich to get some cheap publicity. How many have declined to go on air when they know nothing about a case or a subject? How many have told their patron journalist that their question is misguided, replete with false and/or simplistic assumptions?

This doesn’t excuse the perpetration of a fraud on the public, but explains how so many have a hand in contributing to it. And if you think it’s sad that some reporter or producer thought it worthy to ask for Jeanine Pirro’s views on child custody, bear in mind that it could have been Starr Jones.

Where To Get A Tin Foil Hat

For as long as I can remember, people have whispered about massive governmental conspiracies designed to undermine and subjugate the American people. I would snigger at the suggestion. These were the paranoids, who saw a conspiracy under every rock. Lunatics. The people who would wear hats made of tin foil to stop the government from shooting gamma rays into their heads to steal with most intimate thoughts.

What’s troubling is that our government appears hellbent on meeting their worst nightmares. From Balko :

The Bush administration built an unprecedented surveillance operation to pull in mountains of information far beyond the warrantless wiretapping previously acknowledged, a team of federal inspectors general reported Friday, questioning the legal basis for the effort but shielding almost all details on grounds they’re still too secret to reveal.

The report, compiled by five inspectors general, refers to “unprecedented collection activities” by U.S. intelligence agencies under an executive order signed by President George W. Bush after the Sept. 11, 2001, terror attacks…

Naturally, that icon of academic freedom, John Yoo, was the scribe for the cabal, writing furiously whatever he was told to write. And then there was more :

The Central Intelligence Agency withheld information about a secret counterterrorism program from Congress for eight years on direct orders from former Vice President Dick Cheney, the agency’s director, Leon E. Panetta, has told the Senate and House intelligence committees, two people with direct knowledge of the matter said Saturday…

So what was our cabal up to?

The exact nature of the program remains a mystery. This official hinted that the secret program involved assassinations overseas but declined to provide further details.

The old joke is that even paranoids have enemies. I’m beginning to wonder whether there’s anyone out there who manufactures tin foil hats. Maybe they’re on to something? Or maybe you don’t need a tin foil hat if you can hide your head in the sand instead.

Legislators Intend to Get Re-elected

In the long line of legal fallacies, one that has come to the fore recently is legislative intent. When a court is pressed to interpret a statute, and there is some ambiguity in its language or some doubt as to how it should be applied to a particular set of facts, the next step under the rules of statutory interpretation is to look to legislative intent.

In short, the theory is that courts will attempt to divine the legislature’s purpose in enacting the law, and conform its interpretation to address the purpose of the legislature in enacting it. Well, the Boston Globe put an end to that nonsense when they put a question to House Majority Leader Steny Hoyer.

At a news conference last week, he was talking about the healthcare overhaul being drafted on Capitol Hill, and a reporter asked whether he would support a pledge committing members of Congress to read the bill before voting on it, and to make the full text of the legislation available to the public online for 72 hours before the vote takes place.

That, reported CNSNews, gave Hoyer the giggles: The majority leader “found the idea of the pledge humorous, laughing as he responded to the question. ‘I’m laughing because . . . I don’t know how long this bill is going to be, but it’s going to be a very long bill,’ he said.’’

It’s not that legislators don’t read any bills. They just don’t read every bill. Hoyer admitted this when he committed the inexcusable political crime of publicly telling the truth. Let that be a lesson.

A good buddy of mine who thought it would be a good idea to move from the trenches to the legislative easy chairs told me when he returned from his first year on the floor that it was pathetic. “They don’t get it,” he explained. “They don’t know what due process is.” Typical of a rookie, he read every bill. What a n00b.

He then discussed the laws he was being asked to vote on with his elders, more experienced legislators who could most assuredly explain how laws could be passed that were facially incomprehensible or ignored fundamental constitutional errors, like the absence of due process. They shook their head at him and chuckled as they walked away. He would learn.

In the past, I’ve asserted that the notion that our statutory scheme, and even our constitutional amendments, reflected a singular purpose was misguided. That a room full of people agreed to pass a law doesn’t mean that they all read it the same, harbored the same purpose in their heart, or even agreed on what it did or was meant to do. Chances of that happening are negligible. Yet lawyers and courts will pull out the bill jacket, or a speech given in the dark of night by a legislator looking for a quote in the local paper, to prove what Congress intended. Like that proves anything.

Ramming legislation through Congress so quickly that neither lawmakers nor voters have time to read and digest it is a bipartisan crime; Republicans have been as guilty of it as Democrats. The 341-page Patriot Act, to mention just one notorious example, was introduced in the Republican-controlled House on Oct. 23, 2001, brought to a vote on Oct. 24, adopted by the Democratic-controlled Senate on Oct. 25, and signed into law by President George W. Bush on Oct. 26.

In order to maintain the appearance of a reasoned tripartite government, courts feel constrained to pretend that duly enacted laws reflect the deliberative process of the legislative body. Having argued to courts that certain laws, and the USA Patriot Act in particular, reflect no legislative intent beyond enabling law enforcement to engage in tactics that were previously considered unconstitutional or too intrusive to be permitted, and having had judges give me the evil eye for bringing up such unpleasantries, there can be no doubt that our better judges know all too well that they are busy defending a fiction when they resort to legislative intent to reach their desired outcome.

It’s not that legislators don’t have particular areas that interest them, or at least where their brethren on the floor expect them to use their previously acquired expertise to tell the rest of the caucus to vote yea or nay. Some legislators are “health care guys,” or “banking gals,” and they are expected to read as much of a health care or banking bill as they can before the cocktail party fund-raiser that evening. But given the time demands on a legislator, coupled with the prolix yet boring nature of legislation, the expectation that they have read, no less digested and understood and considered and deliberated, the laws they are asked to vote on is absurd.

The true artform of the politician is to appear well-versed to the naked eye on the issues, sufficiently to meet and greet constituents and secure their devotion and available cash. This comes as no surprise to anyone who has ever had the pleasure of being invited to a political function, where your hand will be firmly grasped by your representative, who will stare deeply into your eyes and assure you that he’s there for you, you personally, only you, doing the hard work needed. His other hand, of course, has its palm open.

Don’t blame your legislators. Consider the burden of running for office every two years, when fundraising starts the day after election for the next one around the corner. Laws as they appear in our books may only include a few lines, but they are hundreds of pages of semi-comprehensible gobbledygook in his packet. Even if he had the time to read them, they are so monstrously boring, convoluted and painful that it’s nearly impossible to get through them.

This does little to help us to figure out what to do about laws when they reach the end of the road. We are left with poorly written, poorly conceived and difficult (if not impossible) to apply laws to abide, with judges left to clean up the legislative mess. I’m not unsympathetic to the difficulty in taking a nonsensical law and trying to find some way to rationalize it to perform its facially intended purpose. It would be far better for courts to stop trying to make sense of bad or incomprehensible laws and starting kicking them back to the legislatures. For those who rail against “activist” judges, consider why they are forced to fill in the blanks. If only judges stopped indulging in the urge to fill in those blanks to suit their own political views.

It’s time to put away the hoary chestnut of legislative intent. If they don’t read the laws they pass, then let’s put a stop to the fiction that there is anything intentional about them. There is no such thing as legislative intent, and it’s time to admit it.

H/T Eugene Volokh