Monthly Archives: July 2009

Compromise, And Other Bad Ideas

At a very young age, we’re taught to get along with others. It’s a fine lesson for the age and circumstance, but as we mature, we need to recognize that not everything mommy told us turns out to be a universal truth. Some never do.

For some time now, the leading advocate for young lawyers, Dan Hull, has pursued an aggressive agenda designed to enlighten them to some of the more useful, but less pleasant, realities of the practice of law. Not the least of which is that there is no such thing as work/life balance when it comes to providing excellence to clients.

This has raised the ire of the Slackoisie, the lot of which has whined incessantly about why it can’t have everything to which they feel entitled. Rather than look toward their professionalism, responsibility, duty, all dirty words to Generation Y, they seek the magic bullet that will enable them to achieve success in the absence of inconvenient effort. A leader in this effort, like a pig sniffing out truffles, was the host of this week’s Blawg Review, Adrian Dayton.

Adrian used his moment in the sun to promote two concepts, the first being twitter.

One day one of the individuals I was following on Twitter sent a message or “tweet” that changed the direction of my professional life.

“Does anybody know a contracts attorney?” Was the message. There I was, a young associate practicing Corporate Law, so I responded.

Within 48 hours our New York firm had a Texas client, the client paid the retainer by credit card, and all communications were conducted by email and phone. Not only had I found a new legal client on Twitter- it was almost too easy. Over the next few weeks I tested out multiple searches, and was blown away by how many individuals and companies were on Twitter asking about legal services. Then I started developing a system to find the leads on Twitter and other social media platforms and turn them into clients.

It’s a wonderful anecdote, not so much to prove Adrian’s point but to show the failure of anecdotes to prove their purported point. One case does not a practice make. There are many lawyers out there. The streets are littered with them. Why would Adrian’s Texas client need to twit to ask blindly for a lawyer? It suggest that the client can’t find anyone locally who would deal with them. Perhaps they’ve gone through all the local lawyers and been tossed out on their butt, whether for being unduly annoying, demanding or cheap. But something is wrong when a client has to twit to find a lawyer, and will give up a credit card number to any lawyer with a twitter account.

On the flip side, what client would want to find a lawyer on twitter? A desperate one, no doubt, since there is no possibility that the client could have any sense of competency in his counsel. There is nothing one can say in 140 characters that would provide an adequate showing of skill to justify retention as a lawyer to any but the worst conceivable client.

Adrian thinks he’s discovered a panacea. In reality, he’s discovered a trap for the unwary. Worse still, nowhere in his paradigm does he concern himself with what to do with a client once he’s got one. This is perhaps the greatest failing of the focus of the Slackoisie, where they demonstrate no comprehension that they are lawyers, not soap salesmen. Nowhere does Adrian mention anything about honing his skills, providing excellent representation, serving his clients. It’s all about getting the credit card number.

Left to his own devices, he would have us all become the Alexis Neely’s of the internet, vessels filled with disgustingly sweet goo, utterly devoid of substance. Spouting words without meaning, I’m left to wonder whether the Slackoisie has the slightest clue what substance is? I suspect some do, playing the Adrian Dayton’s for their available cash to get them to jump on board the newest, shiniest bandwagon to quick and easy happiness. They keep selling “secrets”, and the children keep believing that there really are secrets to happiness, just as they believed in Pretty Ponies and Unicorns before that.

That the Slackoisie have a different view of life is neither surprising nor a matter of deep concern in itself; it has long been common for youth to believe that everyone who came before them is an ignorant Luddite, and only they possess a clear vision, unmuddled by convention. As if nobody before them ever thought of a new way to do something.

While some demand their due, that the world rotate on its axis to make their lives more special and wonderful, others whine about the need for their elders to “understand” them. They want to sit down and negotiate a truce of sorts, where we can hash out our differences and reach a compromise. They have found an ally in Diane Levin at Mediation Channel, As a mediator, every disagreement is an opportunity “bridge the gap.” If Diane was a hammer, every disagreement would look like a nail.

After describing the rancorous arguing that has ensued between members of different generations of lawyers, Dayton, a Gen Y lawyer, observes:

What does that tell us? That there is a real conflict – and lack of understanding – on both sides. The biggest message I took away from it was that we’d better figure each other out – we’re going to be together for a while.
Dayton has thus signaled his willingness to bridge the generation gap. So what about his counterparts on the other side?

There’s nothing to mediate. There are no “counterparts”. If the Slackoisie don’t like the lifestyle at Biglaw, reject the billable hour demands, want to go without undergarments, let ’em. It’s no skin off our nose. They can have anything they want; they just can’t have it on our dime. No one has a gun to their head, forcing them to work 2300 billable hours a year. Every one of them, every single one, is free to hang out his own shingle at any moment.

As far as Biglaw’s “needs” are concerned, who cares. There are still plenty of young lawyers who want to earn as much money as possible. And more significantly, the Biglaw model has crashed anyway, and they are far more likely to disappear in the next few years than hire the next class of money-hungry wannabes. So don’t worry about the pressures of Biglaw, as it won’t be there anyway.

But when you go to work for someone, you will be expected to earn your keep. Lawfirms don’t exist to provide you with a corner office and BMW so you can leave early and drink Jello shots with your buds. When the going gets tough, no one needs a lawyer who leaves the office whenever they have something more fun to do. And stop telling us how wonderful your work is. It’s not. That you disagree is immaterial, as you aren’t in a position to judge your competence. It takes years of hard work and experience to improve the quality of your work to the point where your efforts merit your self-assessed kudos. Some never improve. Most never achieve excellence. It’s not that easy to do.

Surrounding yourselves with others who similarly whine and believe in magic bullets isn’t going to turn day into night, or you into lawyers. Even if you could use twitter to get enough clients, good clients, paying clients, to maintain a practice, you wouldn’t have the capacity to serve them. And don’t throw up an anecdote about how one young lawyer somewhere did a really good job. The reason the story gets told is that it’s so rare. It won’t happen to you because you really, really want it to.

The thought is embodied in this letter from a former youngster who learned a little something along the way.

For having lived long, I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. It is therefore that the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others.

There is no argument to be had here. There is merely a learning curve that the Slackoisie has yet to climb. There is nothing to mediate, nor a gap to be filled. We all want to live in our wonderful fantasy land, where clients with loads of money troll twitter for lawyers to give it to without any demands that they perform services that might interfere with the kids little league games or dinner with our best friends forever.

Oddly, clients have similar thoughts, where they retain counsel wholly dedicated to their cause, night and day, fully prepared to drop everything at a moments notice to put in 36 hours of work in every 24 hour period. They expect lawyers to know all the magic secrets too, but not the same ones that Adrian dreams about. The magic bullets clients dream about are the ones that win their cause, do so swiftly and at a fraction of the cost (if any cost at all) they might otherwise be charged. So whose dreams are more worthy?

Adrian’s second Blawg Review theme are his 12 Virtues, “that will make our world a better place to live.” That’s nice.

Another Independence Day Parade

I find myself sitting in a hotel room in Dallas this 4th of July, wondering whether it’s worth another stab at an uplifting post about the promise of liberty and freedom. Two years ago, I felt that it was. Last year, not so much. Being in Dallas, a misbegotten pseudo-city in the Sovereign Republic of Texas, doesn’t help.

My less than optimistic perspective last year was largely due to the state of the economy and the state of the American psyche. We faced hard economic times and, in a peaceful regime change, replaced one set of folks who produced a lot of problems for this country with another set of folks who haven’t figured out how to fix the problems of their predecessors. My assumption last year was that an America concerned with keeping a job wasn’t an America concerned with higher order problems. Abe Maslow had it nailed down.

But what’s really bothering me this year, this 4th of July, is that we’re still us. Dan Hull at What About Clients? has pointed out too many times to count that we’re still a young country. He’s right, but how long can we use that excuse? There has to come a time when we grow up, open our eyes and stop substituting the fantasy of platitudes for the reality that surrounds us. We’ve now had 233 years to get it right.

The word last year was “change”. It served President Obama well, as it galvanized the dissatisfaction that permeated America. But it’s a negative concept, that we don’t like where we are. It tells us nothing of where we should be going. As it turns out, “change” in the current lexicon doesn’t mean a whole lot, as we seem to be doing much of the same as we were doing before. Frankly, I never thought otherwise.

I’ve just lived through too many elections to believe that shifts in regime mean shifts in America. I watch in faint amusement as Judge Sonia Sotomayor is castigated by Republicans as a liberal, when she would have made a fine selection had her name been put in the hopper by President George W. Bush. It’s not a positive sign. We’re fighting to keep our head above water, as if that’s the best we can hope to do. It’s not enough, really.

As another Fourth goes by, and my mind turns to barbecued ribs, I find myself thinking about the young lawyers who comment here, who have so many more answers than I do to the pressing concerns of the day. I remember when I had the clarity of my convictions, before I came to the realization that very few things pan out in reality quite the way they’re supposed to or we think they should. But youth brings the optimism of future potential. Experience brings the cynicism of past disappointment. Last year was a disappointing one in many ways.

It’s not that I want to be disappointed in how little forward progress we achieved, but that I don’t feel like I have enough time left on earth to hide my head in the sand and pretend that everything is going to work out. Too often, it doesn’t work out. At least not well.

But there is a bright side to all this. Many of us, myself included, will keep on plugging away, despite our less than optimistic perspective and our heightened skepticism that today’s choices will prove any better than yesterday’s. I will do this because I refuse to give up. Not on people. Not on the United States of America. Not on the Fourth of July.

So as I sit here trying to muster something patriotic, perhaps even stirring, to say, the best I can come up with at the moment is that I wish I was out of Dallas and back in America. And if we all do heavier lifting, starting today, perhaps next year we can look back with pride at our accomplishments and look forward with hope that we are moving forward in achieving our promise.

A Win Too Late

The prosecution of Lori Drew in the Myspace suicide case of Megan Meier was a test of the American system of criminal justice. It’s fitting on this Fourth of July to grade ourself. How did we do?

Well before the trial, the defense moved to dismiss the indictment, which charged Drew with violating the Computer Fraud and Abuse Act, 18 USC §1030, for creating a false Myspace account. While many found it impossible to divorce the disgust they felt toward Drew for her manipulation of a teenager, ultimately driven to commit suicide, the legal issues raised by the government’s imaginative use of the CFAA had disastrous implications.

Judge George Wu reserved decision on the motion. The case went to trial. Lori Drew was convicted of three misdemeanor counts of intentionally accessing a computer in violation of the terms of service. The motion to dismiss remained undecided.

On July 2nd, Drew was finally to be sentenced. She wasn’t. Instead, Judge Wu announced that he would be filing a written decision acquitting her of the charges, notwithstanding the verdict.

U.S. District Judge George Wu said he was acquitting Lori Drew of misdemeanor counts of accessing computers without authorization but stressed the ruling was tentative until he issues it in writing. He noted the case of a judge who changed his mind after ruling.

She was convicted in November, but the judge said that if she is to be found guilty of illegally accessing computers, anyone who has ever violated the social networking site‘s terms of service would be guilty of a misdemeanor. That would be unconstitutional, he said.

“You could prosecute pretty much anyone who violated terms of service,” he said.

And when the written decision is filed, assuming Judge Wu, who has been known to change his mind doesn’t have a change of heart, the case will come to its conclusion. Unless the government decides to appeal.

Some commentaries applaud Judge Wu’s decision, despite the widespread disgust with Lori Drew’s conduct on a moral level. I do as well. But I am less sanguine about its timing. As I wrote at the time of trial:

No person should be put on trial if the accusation against her fails to constitute a crime under the law. Trial is a nightmarish experience for any defendant, and that’s why a defendant moves to dismiss an indictment before trial, to avoid this experience if the allegations, even if proven, do not constitute a crime. It is a threshold issue, and it requires a threshold determination.

Judge Wu has now tried judicial roulette, to see if the jury would remove the heavy burden of deciding the reserved motions so he wouldn’t have to. He lost. I agree with Gideon that it’s past time for the judge to do his job. And having dropped the ball once, I hope he won’t do so again.

With so many people watching the case, and already way too many embarrassing moments for the legal system, it’s time for Judge Wu to earn his keep. Whether Lori Drew does probation makes little difference to most of us. Whether Judge Wu does his job is critical.

It’s good that Judge Wu has apparently reached the correct result. It’s not so good that a pre-trial motion to dismiss was left undecided while a defendant went to trial and verdict. Most notably, Judge Wu’s explanation for his decision, which will no doubt be fleshed out in loftier language when it appears all dolled up for the books, is what we’ve been saying since the day the indictment was announced. It was obvious to so very many all along. It was the subject of innumerable commentaries, article, discussions and rants. And yet it continued to go undecided while Lori Drew’s case was tried.

Is all well that ends well? Certainly, it’s better to end well than end badly. But this is not a simple dance, engaging the government in the system, and it’s many moving parts are all supposed to work properly. It’s not sufficient that at the very end of the process, we finally obtain the result desired. Not for a system that is supposed to deal with the lives of real people.

This is where so many who are deeply concerned with the more existential aspects of law fall short. There are real lives involved in the process, and these lives are often destroyed by the process itself, regardless of outcome. Financial ruin was an “extraordinary evil” when done by Bernie Madoff. Is it better when done at the hands of the criminal justice system? The trauma of prosecution and trial is a nightmare, but it’s no less a nightmare when you find out after it’s completed that there was never a crime to begin with.

Judge George Wu, on the date he set to sentence Lori Drew, acquitted her instead. Perhaps this was his way of sentencing her to the hell of the criminal justice system, then ending it all at the very last second for the benefit of the rest of us? This too would be wrong, and I would not impute any secret motive to Judge Wu’s timing. But his timing sucks.

The decision ultimately reached is clearly the right one. It seemed painfully obvious to the rest of us that there could be no other correct decision. And indeed, as obvious as it sounds when said by Judge Wu is as obvious as it has been all along. So why didn’t Judge Wu do his job and decide the motion before letting all the wheels of justice grind?

This case was a test of the American criminal justice system. It was the right decision unduly delayed. First do the harm and then try to undo it. Despite our many platitudes, like justice delayed is justice denied, the saving grace of the Lori Drew acquittal is that too often, if not most often, we don’t even end up with the right decision, making it almost disingenuous to complain that it should have issued before putting Drew to the test of trial.

This case turns out to be one of the better ones for our system. And thus, it barely passes the test. Just barely.

Taser Goes Too Far

Via Ken at Crimlaw, our friends at Taser International have expanded their line of less-lethal weaponry.

[Taser] has released a new shotgun-ready projectile similar to its other stun-gun products, but with twice the range and the first with wireless capabilities.

The wireless device has the same effect as Taser’s other products, but can be fired from up to 100 feet away. It also can be used by other 12-gauge, smooth-bore shotguns, although the Taser-produced shotgun is designed only for the less-lethal projectiles.

Because it was too darn hard for the officers to walk the 20 paces from their cruiser to the 72 year old woman who refused to sign her speeding ticket, we needed this.

The problem with tasers isn’t that they offer a less than less-lethal alternative to bullets, itself not an entirely bad thing. The problem is that tasers, both by marketing and inclination, have become a substitute for minimal intelligence. It’s just too easy to pull out the taser when there is no justification for the use of any force whatsoever. It’s become the “great persuader” for lazy and stupid cops. Why spend the 10 minutes to talk someone off the ledge when you can taze ’em and be back before the donuts come out of the oven?

Of course, there is a risk involved with getting too close to someone armed with a knife or club in order to use a hand-held taser to subdue them. They can still be shot from a bit of distance, but not 100 feet away. I can foresee circumstances where the distance makes sense, and would protect police from unnecessary risk.

I can also see the circumstance where some cop stands next to his RMP and plugs the recalcitrant but harmless citizen with his taser enabled shotgun rather than exert the effort to resolve the situation without need to resort to force at all. I see a whole lot more of this happening than the alternative. It’s just too easy to do.

Just as we can debate whether it’s the gun that kills people or people who kill people, the taser is only as good as the person holding it or, now, pulling the trigger. The problem is that experience has shown that too many cops aren’t good enough. And now it’s even easier, safer and, frankly, requires less effort. Just what we need, an easier way to get stupid.

If You Liked Secret Wiretaps, You’ll Love This

Now a Harvard Lawprof. Jack Goldsmith could only tolerate 9 months in the Office of Legal Counsel during the Bush administration, documented in his book The Terror Presidency. You might think that the lessons learned inside Ashcroft’s Justice Department would have sunk in, but unfortunately not, as shown in his New York Times Op-Ed.

After describing the obvious, that the nation, it’s daily functioning and ultimately our national security, relies on the viability of the internet, he points out that a chain is only as strong as its weakest link.

One of many hurdles to meeting this goal is that the private sector owns and controls most of the networks the government must protect. In addition to banks, energy suppliers and telecommunication companies, military and intelligence agencies use these private networks. This is a dangerous state of affairs, because the firms that build and run computer and communications networks focus on increasing profits, not protecting national security. They invest in levels of safety that satisfy their own purposes, and tend not to worry when they contribute to insecure networks that jeopardize national security.

This is a classic market failure that only government leadership can correct. The tricky task is for the government to fix the problem in ways that do not stifle innovation or unduly hamper civil liberties.

Already, the question asked suggests how Goldsmith is going to veer off course. or not “unduly hamper civil liberties.” What are the chances that his “unduly” will align with the “unduly” of the rest of us?

Goldsmith’s contention that our nation needs a secure internet, capable of preventing everyone from hackers to terrorists from seizing control of our systems and crashing our nation. But to suggest that private networks have no interest in security, and therefore needs to be under the thumb of our government to protect us from them is the attitude of those who are true believers that government, and only government, can be trusted. This trust of government leads Goldsmith down the wrong path.

Our digital security problems start with ordinary computer users who do not take security seriously. Their computers can be infiltrated and used as vehicles for attacks on military or corporate systems. They are also often the first place that adversaries go to steal credentials or identify targets as a prelude to larger attacks.

So stealing my passwords is the key to infiltrating our government computer systems? I don’t think so. Hard as it is to imagine, I have no entrée into the government’s computers. I would like to, but I don’t. Assuming computer hackers with evil intent get hold of my computer, they could lay waste to Simple Justice, but I believe that the government remains safe.

The problem with this paragraph is that this is where Goldsmith meanders down the road from major computer systems to the computers of the little people, which now, by extension, require the same government oversight, “for our own good.” See where this is heading yet?

But the private sector cannot protect these networks by itself any more than it can protect the land, air or water channels through which foreign adversaries or criminal organizations might attack us. The government must be prepared to monitor and, if necessary, intervene to secure channels of cyberattack as well.

And here it comes. We can’t protect ourselves, which is why we need the government to do it for us. Analogies between “land, air or water channels” are curious, considering they certainly require the efforts of a large military force to defend but bear no similarity to the internet. Goldsmith lays it out as if it’s obvious, but offers zero explanation for the value of this comparison. Will our wi-fis have little soldiers running in and out of the waves?

The Obama administration recently announced that it would set up a Pentagon cybercommand to defend military networks. Some in the administration want to use Cybercom to help the Department of Homeland Security protect the domestic components of private networks that are under attack or being used for attacks. Along similar lines, a Senate bill introduced in April would give the executive branch broad emergency authority to limit or halt private Internet traffic related to “critical infrastructure information systems.”

The internet version of the Gulf of Tomkin Resolution is on the table. After all, given how vital these systems are to the wellbeing of our nation, and how an attack can come at any moment and the executive branch must be prepared to respond at that very moment, we must give our President the tools to protect us. And if we can’t trust the President, who can we trust?

The government must be given wider latitude than in the past to monitor private networks and respond to the most serious computer threats.

After all, the government can’t fight with one hand tied behind its back, right?

These new powers should be strictly defined and regularly vetted to ensure legal compliance and effectiveness. Last year’s amendments to the nation’s secret wiretapping regime are a useful model. They expanded the president’s secret wiretapping powers, but also required quasi-independent inspectors general in the Department of Justice and the intelligence community to review effectiveness and legal compliance and report to Congress regularly.

You see, the problem isn’t that the government can’t be trusted, but that there are occasional regimes that overreach more than others.

Many will balk at this proposal because of the excesses and mistakes associated with the secret wiretapping regime in the Bush administration. These legitimate concerns can be addressed with improved systems of review.

Ask the wrong question and you arrive at the wrong answer. Goldsmith’s solution is to vest the government with yet another secret power to “wiretap” our computers, and while acknowledging that this might be just a wee bit intrusive, dismisses the problem by offering that one finger of government can keep a post hoc eye on the rest of it. Problem solved!

This train of thought goes off the tracks at the very beginning, with its assumption that private industry lacks sufficient desire or interest in internet security to adapt. Goldsmith’s assumption doesn’t hold water. The problem isn’t will, but way. If the government has a magic solution that will secure the airwaves from attack, then why is it hiding it? Private lanes in the information superhighway would love to be secure, free from crashes if you will, but hasn’t figured out a foolproof plan. Neither had the government, obviously, yet Goldsmith would give the government access to our laptops in the name of our protection.

Worse still, the zealous belief that government, at the end of the day, is a trustworthy player, whether in its entirety or, as Goldsmith expressly states, via some quasi-independent inspector general system of review to keep the government honest, is nothing more than an article of faith. Either we’re willing to give the government access to every aspect of our lives that exists within our hard drives, and trust the government not to abuse its authority, or not. Goldsmith’s faith is with the government. Is yours?

And yes, I do have an alternative proposal. Our government, the one that could put a man on the moon when it put it’s nose to the grindstone, may well be capable of developing security systems that can protect our computer infrastructure from outside attack. Why not put the same zeal that would otherwise go into accessing the personal computers of every American into developing the secure system, which can then be made available to every private access point around the nation, if not the world,

It may well be beyond the ability of private enterprise to develop a truly secure system, but I’m sure everyone will be more than happy to take what the government develops and use it. It’s like Tang or the pen that writes upside down. While the government may have been the impetus for the development, it can subsequently benefit everyone (except the Ruskies, who ignored the pen and used a pencil instead). We just need to make sure that our friends at the CIA don’t build their own backdoor into the secure system, “just in case.”

And what if the government can’t come up with a fool-proof secure system? Then they haven’t really demonstrated any reason why they should be allowed to access our laptops instead. If this is about security, then the failure reveals that the government doesn’t bring any more to the table than anyone else. It doesn’t have the technology to protect us, but only to spy on us in the purported hope that they will catch the hacking terrorist before the damage is done. A big if, coupled with a big intrusion.

If this is about Big Brother keeping its eye on me to make sure that Osama Bin Laden isn’t trying to bring down western civilization via my laptop, then I’m not prepared for the trade-off. And before I would even consider it, let Goldsmith focus his solutions on the government developing real solutions to internet security before they go for the fear factor of accessing my PC. If he trusts the government so much, then why not trust its ability to come up with a real solution that doesn’t require its intrusion into the lives of Americans. For our own protection.

Time, Time, Time, Is On My Side

At My Shingle, Carolyn Elefant raises the bane of every solo practitioner’s existence.

The Report opens with a reminder that 55 percent of New York State Bar Association 74,000 members are solos and that their needs must be comprehensively addressed. And one of the major problems faced by solos is decidedly unglamorous: the time waste associated with waiting in court. From the report:

It is Abraham Lincoln who is credited with having observed, two centuries ago, that a lawyer’s time and advice are his stock in trade. The message still resounds. The loss of significant periods of time spent waiting in courthouses is costly—for attorneys if they do not bill their clients out of sheer good conscience, or for their clients when their attorneys bill for those non-productive hours. Throughout the state, this waste is widely reported to be enormous—perhaps hundreds or thousands of hours daily adding up to thousands or perhaps tens of thousands of dollars or more. For attorneys, their clients and others, it is an imposition and a burden on their time and resources.

Before you say it, obviously Lincoln didn’t “observe” that a lawyer’s time and advice are his stock in trade two centuries ago. He was born in February, 1809, and I am confident these were not his very first utterances. Welcome to the detailed exactitude of the New York State Bar Association, a club where the discalcic flourish.

Criminal defense lawyers, with certain exceptions, do not bill by the hour. We suffer the waste of our time sitting in local courtrooms for hours on end, awaiting our 60 second in front of the judge. Unlike civil matters, our cases are adjourned from one date to another, with defendants required to appear, whether there is something to do on that date or not. It’s a matter of control, keeping cases and clients before the court on a routine basis to make sure that we’re all still around. This means that the lawyers return to court, along with the other 30 to 70 of our brethren on the calendar that date, to await our turn to smile and get a new date to return to court. Until the defendant’s name is called, we sit.

Over time, I’ve been able to significantly reduce the time lost to waiting by handling a substantially lower volume of cases. Other lawyers, particularly younger lawyers, don’t have that option. They are compelled to take on as many cases as possible to make ends meet. That means that they spend an enormous percentage of their day waiting in one courtroom after another for their cases to be called, time that could be spent working on their cases, investigating, writing, meeting, researching. Gone. Time lost can never be recaptured. It’s just gone.

Most judges never experienced this loss of time. Most criminal judges come from the ranks of prosecutors, who have a calendar assistant whose job it is to stay in one courtroom all day long and read from notes sent in by the assigned prosecutor. The assigned prosecutor gets to sit in his office, or do a hearing or trial, or hang out at Forlinis, but isn’t required to sit in courtroom after courtroom. Solo practitioners don’t have calendar assistants to cover their lost time. Former prosecutors who become judges lack any understanding or empathy for this situation.

But even former criminal defense lawyers, the few who assume the bench, forget what the loss of time meant to them. Rather, they just take the waste as a cost of doing business. They went through it when they worked for a living, and now they are happy to be able to impose it on others, in a “right of passage” sort of way. Former criminal defense lawyers who assume the bench are often meaner toward their own than former prosecutors, as they ought to know better.

If there is one attribute that a criminal defense lawyer must possess to survive the job, it’s the ability to sit and wait. It’s what we do most. If you can’t do it, then you can’t be a criminal defense lawyer. And it’s a terrible waste.

But He Could Run, Couldn’t He?

When it came time for R. Allen Stanford to put on the steel bracelets, he did it like a champ. While Dick DeGuerin deserves much of the credit for how well Stanford handled his surrender, Stanford had the opportunity to flee the United States long before DeGuerin’s advice came in handy. But to what avail?

When Magistrate Judge Frances Stacy set bond at $500,000, secured by $100,000, it was a triumph of reason and law. Whether or not Allen Stanford is guilty as sin, he didn’t flee despite opportunity and reason to do so if he was so inclined, and surrendered to agents, who were there to seize him despite DeGuerin’s clear and unequivocal offer to have Stanford voluntarily surrender to the United States Attorney in Houston. There isn’t anything more a putative defendant can do to make himself more amenable to prosecution.

But the same lack of class that was revealed by the U.S. Attorney’s stunt in trying to nab Stanford outside his girlfriends Virginia home reared its ugly head again when the bail order was appealed to federal District Court Judge David Hittner. And the judge showed that he was no better. Stanford was detained.

U.S. District Judge David Hittner on Tuesday approved a request by prosecutors to overturn a magistrate judge’s decision to allow Stanford freed on $500,000 bond pending his trial.

Prosecutors argue that Stanford’s international ties make him a serious flight risk. Stanford holds dual U.S. and Antiguan citizenship, has an international network of wealthy acquaintances who would help him and possibly access to vast wealth hidden around the world.

The absurdity of this line of argument is only trumped by its acceptance by Judge Hittner. Stanford is a wealthy man. Of course he’s got the wherewithal to flee. But that bears no connection, and offers no evidence of, any intention or desire to flee. Yet again, the theoretical subsumes reality, suggesting that any defendant with more than modest assets is, by definition, a flight risk and requires detention. It’s crazy.

The touchstone for bond is whether any set of conditions will reasonably assure the defendant’s return to court. Key to this determination is whether there is any basis in fact to suggest that a defendant has any intention of leaving the jurisdiction to avoid prosecution. It’s not whether he can afford to run or has friends in other countries. It’s whether there is any factual basis to believe he would do so.

In the case of Allen Stanford, not only has there been no showing of any intent or desire to flee, but there has been an overwhelming showing that he will stay and fight. Not overwhelming merely be dint of argument, but by facts. The allegations of his running a Ponzi scheme, the crime du jour, was long known by all, and Allen Stanford was free to run off to any darn place he wanted, with his alleged hidden cache of “vast wealth” and his “international network of wealth acquaintances” to provide him aid and succor. Yet he stayed.

Before these allegations arose, Stanford lived outside the United States for 15 years. Instead of ducking jurisdiction, he returned to the United States, established residence in Houston, and actually made himself available to the government for prosecution.

He hired a lawyer. He hired an exceptionally good lawyer. This isn’t what you do when your intention is to flee; this is the action of a man who is preparing for a fight. Stanford’s offer to surrender was ignored; he knew that the feds could knock on his door in the wee hours of the morning any time they wanted, and that he would have no advance notice of their arrival to decide to hop a plane to Antigua. But he didn’t flinch. He continued to live his life as before, readily available to government agents to pick him up at their leisure. This too is the action of a man who is preparing to fight.

There is nothing more a person can do to prove, by virtue of his conduct, that he will not flee, but will stay and fight. Nothing.

It’s not surprising that the government pursued an appeal of the magistrate’s decision to the district court judge. They can’t stand it when they don’t get their way. That Judge Hittner bought into it, however, is unfortunate. He’s been a judge long enough to know better. Much better.

Aside from the big deal of another erroneous and baseless decision that deprives a man of his constitutional right to appropriate bail, it presents a scenario that suggests that there is nothing, absolutely nothing, that can be done by a defendant to demonstrate that he has no intention of fleeing when faced with a government determined to detain him no matter what.

Bail is not punishment. A defendant is not to be punished until after he’s convicted, no matter how disturbing that is to most Americans. Given how Allen Stanford has conducted himself in the face of arrest and prosecution, his detention is a disgrace. It doesn’t matter whether he’s “extraordinarily evil” (anticipate that I will be using this phrase with abandon for the foreseeable future); it only matters whether he will return to court. Stanford has proven he will, and if we wish to pretend to be a nation of laws, not men, then he should be released.

Now That There Is No Bar

The ramifications of imposing a sentence of 150 years on Bernie Madoff are already rippling through the system. It’s as if judges and prosecutors have been freed from the chains of proportionality, not to mention incentives, and can now impose, or argue for the imposition, of punishment based upon unadulterated rhetoric.

“Extraordinarily evil.” Across the river in New Jersey, Glyn Richards was sentenced to 30 years on a plea of guilty for a $6 million scam. Judge Renée Marie Bumb explained:

“It doesn’t take a life – like a violent crime does, but it does destroy life,” Bumb said. “I think you are a con man. You have been and you always will be. I think you’ll be pulling a scam when you walk out the gates of prison.”

If it didn’t cause harm, it wouldn’t be a crime. So what does the empty rhetoric add to explain this vast upward departure to the guidelines? Is Richards “extraordinarily evil” too? What is ordinarily evil?

Cy Vance, Jr., running for the Democratic line for New York County District Attorney as Robert Morgenthau’s handpicked successor, applauded the Madoff sentence on twitter:

I believe the federal prosecutors have done an excellent job moving the Madoff case to a swift & just conclusion.

So I asked Cy a question :

@CyVanceforDA Should economic crimes be dealt with more severely than violent crimes, such as rape and murder?

Uh oh. Cy responded :

@ScottGreenfield Serious crime must be dealt with seriously & substantially whether it’s economic crime or a crime against a person.

Caught by the rhetoric, Cy was left to scramble. You see, the New York County District Attorney, being the only local DA who has the actual Wall Street just a few blocks down from his office, white collar fraud prosecutions are handled with some regularity, hand in hand with the more typical crimes prosecuted in state court, like murder. But under New York law, the most severe sentence available for a person convicted of murder 2 is 25 years to life in prison. So how do you square the sentence available for murder with a fraud? Is murder not “extraordinarily evil?”

Lacking any rational way to justify his position, Cy was left to dangle in the wind with a response that serious crime must be dealt with seriously. Seriously? As in, did he seriously write that?

Viewed in a vacuum, every crime is evil. Where the line between ordinarily and extraordinary evil falls can’t be discerned, but when prosecutors and judges view sentences divorced from all context and feel comfortable arguing for, and relying upon, hyperbolic rhetoric to justify the imposition of retribution, there is no longer any measure upon which to determine a sentence. It’s just numbers connected to adjectives and descriptions of pain and misery. There’s no denying that the victims suffered, but that offers nothing to explain why one sentence is more appropriate than another.

My question to Cy Vance was one of proportionality. As a matter of policy, is it his position that murders aren’t as bad as scams? If he wants to be the District Attorney, and his office will be prosecuting both, then his opinion matters. He dodged the question, poorly I might add. My purpose wasn’t to embarrass him, but since he raised the issue, the question flowed naturally.

There are sound policy reasons to have sentences that increase proportionately with the severity of the crime, and that a certain degree of leniency must be shown for acquiescence. I realize that most people aren’t wonky enough to care, and I realize that there are some insane jurisdictions with 3 Strike laws that put the guy smoking a blunt in prison for life, which makes every other sentence look ridiculously lenient. But we need to be intellectually on guard against one asinine law justifying a domino effect of irrational policy and arbitrary sentencing.

If the sentence to be imposed no longer appears to require a sound basis connected to the legitimate purpose for sentence, as was clearly the case in Bernie Madoff’s case since 18 USC 3553(a) requires that the sentence be “sufficient, but no more than necessary,” a requirement that was facially violated by sentencing a man to a term greater than his possible lifespan which by definition is “more than necessary,” we are freed from the constraints of proportionality and reason. And we have no basis remaining by which to measure a sentence, beyond “extraordinarily evil.”

I suppose that the defense can argue at sentence going forward that he’s just ordinarily evil? Is there any other limit to retribution? Or is it who uses the most convincing adjectives?