Monthly Archives: September 2009

ABA Journal to Lawyers: We Quit

It was a sad day around the blawgosphere when news broke that the ABA Journal had decided to shut its doors, having been purchased in a last ditch pre-liquidation sale to Mad Magazine. The organ of the American Bar Association was no more, though it’s name would live on in an Onion-esque fashion.

Within minutes, the new owners published their first piece, and a doozy it was. Keeping the Legal Rebels theme, since the folks at Mad Mag found themselves unable to do better than the ABA Journal had already done to itself, came

Rex Gradeless: Follow the Tweeter

Rex Gradeless has a unique ability to pinpoint useful information for a variety of audiences. That probably explains why the recent St. Louis University School of Law grad has more than 71,000 followers on Twitter, where he’s known as @Rex7.

For Gradeless the question now has become what to do next, and the economy is influencing his decision-making. While he’d like to do civil litigation, the jobs are scarce. In August, shortly after taking the Missouri bar exam, Gradeless had a soft offer with a top-20 law firm he wouldn’t name. The position wouldn’t start until January 2010, Gradeless says, and he’d hopefully be doing legal and Web 2.0 work.

“You have a juggernaut of marketing types in law firms who want to control the message, and it’s hard for them to see it’s not going to be possible forever,” Gradeless says. “Hopefully I can educate them and we can start doing some of this other social-networking-type stuff.”

I swear, I don’t know how these guys come up with this stuff. What an imagination! But there was more, an interview with Rex Gradeless, offering his insights on twitter to lawyers across the nation. According to ABA Journal writer Stephanie Francis Ward, “you were so interesting we went waaaay over 30 minutes.” It offered gems like this:

@SFW70 : Can you give examples of social media that actually worked to get lawyers new, paying business?

Okay, so maybe they pushed the envelope a little too far by trying to make us think that the real ABA Journal would seriously use an unemployed law school grad to teach lawyers across America how to get business based on twits. The best one was when she asked Rex Gradeless his opinion on whether there were malpractice risks associated with social media. Can you imagine?

Granted, the old ABA Journal, before it became a satire rag, had its moments, like when it put the FBI: Gotcha website in its Blawg 100. They must have been howling in the offices over that one.

I, for one, will miss the old ABA Journal, but the new one is certainly a lot more fun to read. I can’t wait to see what they will come up with next.

Caveat: Before anyone gets their panties in a twist, this isn’t a knock of Rex Gradeless, who has done an extraordinary job of creating a public profile for himself based on nothing more than collecting followers. Rex isn’t to blame for the demise of the ABA Journal, or capitalizing on noxious fumes that overcame the judgment of its editorial staff.

They First Came For Our Shoes

Richard Colvin Reid was not successful in his efforts to light a fuse that, he hoped, would ignite pentaerythritol tetranitrate, a high explosive contained in the lining of his shoe. But because of him, millions of Americans are required to remove their shoes as they enter the security zone at airports. Whether bare or stocking-ed, we are constrained to suffer the indignity of going shoeless “for our own protection.”

If this is the measure of safety, we’re in trouble. From Bruce Schneier (note: the comments to Schneier’s post are a must read):

[L]ast month someone tried to assassinate a Saudi prince by exploding a bomb stuffed in his rectum. He pretended to be a repentant militant, when in fact he was a Trojan horse:

The resulting explosion ripped al-Asiri to shreds but only lightly injured the shocked prince — the target of al-Asiri’s unsuccessful assassination attempt.

While the efficacy of concealing explosives within a body cavity is questionable, the same could be said for a shoe bomb but it didn’t give the TSA much pause. Safety first.

As lawyers, we look at the validity of arguments taken to the logical extreme. This certainly provides an opportunity to do just that, as logic dictates that if we are to be reactive to every potential threat to airline travel, itself a delivery mechanism that has already been used, the next step will be as extreme as it gets.

Many contend that the system in place in airports is designed primarily to create an atmosphere of safety rather than assure actual safety, given that anyone bent toward terrorism would be inclined to find the next new way to secrete a weapon to defeat the existing security measures. Others suggest that it’s all designed to keep Americans afraid, and thus retain control over their thinking and facilitate their willingness to allow the government to engage in ever more intrusive means of investigation.

Either way, it’s the sacrifice of freedom on the alter of security. As Ben Franklin informs, we then deserve neither.

The illusion was revealed before Congress during a hearing on the USA PATRIOT Act last week, under the questioning of Senator Russ Feingold.

Only three of the 763 “sneak-and-peek” requests in fiscal year 2008 involved terrorism cases, according to a July 2009 report from the Administrative Office of the U.S. Courts. Sixty-five percent were drug cases.

Sen. Russ Feingold (D-Wis.) quizzed Assistant Attorney General David Kris about the discrepancy at a hearing on the PATRIOT Act Wednesday. One might expect Kris to argue that there is a connection between drug trafficking and terrorism or that the administration is otherwise justified to use the authority by virtue of some other connection to terrorism.

He didn’t even try. “This authority here on the sneak-and-peek side, on the criminal side, is not meant for intelligence. It’s for criminal cases. So I guess it’s not surprising to me that it applies in drug cases,” Kris said.

Way back when we were fighting the war against terrorism, and the Department of Justice put together everything on its wishlist for a onetime shot at gaining investigative weapons that had been routinely rejected by Congress as improper, unduly intrusive and flagrantly unconstitutional, the answer to all questions was terrorism. The mere utterance of the word made representatives, senators and citizens melt. No one, except the Gentleman from Wisconsin, would be so unAmerican as to deny the need to safeguard the American people from terrorists.

But that was when we were naive. That was when we retained an expectation of privacy, when we believed that Americans had a right to free movement, when we wore our shoes from the moment we put them on our feet until we were firmly planted in our very narrow airplane seat. That was when we needed a darn good reason to give away our birthright.

No one argues the point anymore. No one refuses to show identification in order to use the prepaid ticket to fly from one American city to another, as if we were under no duty to identify ourselves to any government agent having done nothing to justify their demand for such. No one refuses to remove their shoes.

And the Department of Justice no longer needs to pretend that any of this relates to our safety from terrorists. Don’t blame the Attorney General or Congress for fooling us or giving away our freedom. They could never have done so without our willingness to obey.

Now bend over. You’re holding up the line.

H/T Radley Balko

Up To The Task?

Most criminal defense lawyers labor in obscurity, hoping to one day get that big case that will thrust them into the limelight and turn their small time practice into a household word. It’s not always that easy, and there’s nothing like a story in the Wall Street Journal ripping the lawyer to shreds to make one wonder why you got out of bed that day.

Before Najibullah Zazi hit the headlines as America’s newest alleged terrorist, he sought out the services of a local lawyer in Denver. He ended up talking to Art Folsom, Folsom gave Zazi and told him to give him a call if he needed anything. Who knew?

It was quite by accident that the biggest terrorism case in recent years landed on the doorstep of small-time defense lawyer Art Folsom, who has made a living on drug-possession and drunk-driving cases, along with the odd divorce.

Mr. Folsom represents Najibullah Zazi, accused by the U.S. government of plotting to build and detonate a lethal explosive as part of an active al Qaeda cell. Mr. Folsom, 37 years old and a graduate of the University of Denver College of Law, is up against scores of FBI agents and federal prosecutors who have worked feverishly for weeks to build the case.

Let’s face facts. Defending someone accused of terrorism is both extraordinarily unusual within the confines of criminal defense, and difficult under any circumstances. Aside from a handful of lawyers who have chosen to take up arms in a truly brutal niche, one where the rules are all different and there’s neither money nor glory to smooth over the rough spots or sweeten the pot, even the most experienced federal criminal defense lawyers have little experience with defending terrorists. My thoughts turn immediately to Josh Dratel, who took over from me as amicus chair at the NYSACDL, who has chosen the path of defending accused terrorists. It’s a brutal, and unrewarding, road.

But that hasn’t stopped others from talking about Folsom.

Veteran criminal defense attorneys have been unusually blunt in assessing Mr. Folsom’s qualifications. “Mr. Folsom is just in over his head,” said prominent Denver defense lawyer Daniel Recht, citing Mr. Folsom’s performance so far and minimal experience in federal court.

It’s not that Recht is necessarily wrong, as he explained to the Denver Post :

Three experienced criminal defense lawyers on Monday questioned the strategy of the attorney for Najibullah Zazi, saying that allowing a client to talk to the FBI for 28 hours was at best “risky” and at worst would lead to a criminal charge.

“He shouldn’t have done it,” lawyer Daniel Recht said of Zazi’s attorney, Art Folsom. “He literally walked his client into prison. In fact, this fellow would not be in custody now but for the advice of his attorney.”

Recht would have advised Zazi not to talk to the FBI until Recht had a full understanding of what Zazi may have done, what he might be questioned about and what the FBI might have on wiretaps.

Well, yeah. Attorneys without federal experience often lack the appreciation of what they think of as being “cooperative” and are afraid of telling the FBI to get lost. The FBI can be quite intimidating, even to lawyers, and you’ve got have a pair to stare them down. Whether the problem was Folsom’s lack of federal experience, or that he was cowed by the agents, or both, he was certainly over his head and left Zazi dangling in the wind.

Still, Art Folsom isn’t giving up the reins.

With a shrug and a drag on his cigarette, Mr. Folsom begs to differ. “I’ve been practicing criminal defense for 10 years,” he says. “This is an enormous case, but when you get down to the core principles, it’s about criminal defense.”

Folsom has at least brought in J. Michael Dowling, who has “25 years of experience in drug trials and other federal cases,” though notably not handling terrorism cases. But that doesn’t mean that Folsom is relinquishing his spotlight,

But Mr. Folsom remains lead counsel. TV crews stake out his office, in a building that also houses a massage therapist and a jewelry shop. After hearings, he is the one who faces the cameras.

The lure of the klieg lights is particularly hard to ignore the first time around, but as he will find out very quickly, they are extremely hot. It’s very easy to get burned.

Then there’s the question of money, since few accused terrorists also happen to possess much by way of personal wealth.

Amid the hubbub, Mr. Folsom has his own legal problems. He was charged this summer with possession of less than an ounce of marijuana, a petty offense that carries a small fine. He says the pot belonged to a friend. A pretrial conference is set for mid-October.

Mr. Folsom expects the Zazi case to take up much of his time, though his client has no money to pay him. That’s a bit tough, he says: “I’d like to be able to keep making my car payments.”

Handling a major media case is all-consuming. Just fielding the telephone calls is a full-time job. But when the client is broke, and the car payments keep coming, and the desire to continue, whether altruistic or addiction to the limelight, takes hold, it’s a problem. In the worst of all possible worlds, Folsom is financially devastated by the case, loses whatever other cases he might have or get for lack of time, and is ultimately excoriated in the media for his inept representation. Maybe, if he plays his cards really poorly, he becomes the goat for ineffective assistance of counsel and loses his license.

And this has nothing to do with the client, Najibullah Zazi, who will not doubt feel the fullest weight of the government come crashing down upon him in one of the most intense, and difficult, cases a defendant can face. Terrorism defense really isn’t the province of amateurs. Even with vast federal experience, the demands of a terrorism defense are different, and experience in this very small niche is incredibly important if you expect to have any chance at success. It is not, as Folsom says, just a criminal defense at its core. No drug dealer faces the state secrets doctrine.

For all those young and “small time” lawyers hoping to catch the big one, be careful what you wish for. You just might be the next Art Folsom.

Retrial After More Than A Generation (Plus A Sexually Mutilated Corpse)

While an immediate retrial after a hung jury presents some additional hurdles for the defense, the situation is different when 27 years have elapsed since Robie J. Drake was first convicted of the murder of two Tonawanda teens in 1982. And according to his lawyer, Andrew LoTiempo, he’ll need $500,000 for experts if the prosecution wants to persist.

There was never any question that Drake shot the two teens, who were making out in a 1969 Chevy Nova in the parking lot of an abandoned factory. Back in 1981, there was nothing terribly unusual about that, although today two teens kissing may sound a bit quaint. From the Buffalo News :

Drake, who was 17 at the time, has never denied that he shot Smith and Rosenthal as they kissed in a rusty 1969 Chevrolet Nova parked in an abandoned factory’s parking lot off River Road in North Tonawanda.

He told police that he thought the car was empty and was using it for rifle practice. Smith was shot twice and Rosenthal 16 times.

But the prosecution’s case isn’t based on the shooting, but rather than aftermath.

Then-Niagara County District Attorney Peter L. Broderick Sr. presented experts to assert that Drake was driven to kill by a purported psychological syndrome called “picquerism,” in which a person derives sexual satisfaction from a shooting or stabbing.

Drake drove the Nova to a nearby landfill, where two policemen caught him trying to stuff Smith’s nude body into the trunk.

The results of two autopsies turned up evidence of a bite mark on the girl’s chest, which examiners said was inflicted after her death, along with other violations of her corpse.

For obvious reasons, the really good evidence, of sexual mutilation of the girl’s corpse, is what the prosecution sought to use against Drake then, and still wants to use against Drake now. In the interim, however, it caused the Second circuit to toss the conviction.

But in January, the U. S. Circuit Court of Appeals in New York City ordered a new trial on grounds of prosecutorial misconduct.

The federal court found that picquerism is “quackery” and that Broderick’s star witness inflated his resume and committed perjury with Broderick’s knowledge.

While it’s unclear whether the prosecution plans to try its hand a “picquerism” again, it has announced its intention to introduce the sexual mutilation of the corpse. LoTiempo, in his threat to require a half million for experts on retrial, is trying to put the screws to the prosecution if it seeks to use this sordid post hoc evidence.

“That becomes irrelevant now. He’s not charged with doing anything to those people after they were dead,” LoTiempo argued.

He said the only purpose of the medical evidence was to bolster Broderick’s claim of picquerism. But if the medical evidence comes in, LoTiempo said, he would have to fight it by hiring a proctologist, a pathologist and experts in DNA, bite marks and ballistics.

While no one can deny the “yuck” factor of Drake’s alleged post shooting conduct, if indeed “yuck” even begins to cover it, this really tests the bounds of undue prejudice. Certainly, the power of this absolutely horrific evidence will be impossible for a jury to ignore, and will assuredly cause a visceral reaction that will prejudice the jury against Drake. But it is, as LoTiempo notes, wholly irrelevant to the issue of murder. It’s just so darned sick and juicy. How can any prosecutor pass up such salacious and disgusting evidence?

But there are other issues raised by this retrial that raise curious issues.

Meanwhile, Brandt and Assistant District Attorney Timothy R. Lundquist are asking to have some testimony from the 1982 trial simply read to the new jury.

Some witnesses have died, including one of the two arresting officers and the doctor who performed the first autopsy. But the prosecutors say others are too old or live too far away to testify again.

That can happen after 27 years. While there may be no statute of limitations on murder, witnesses often have a finite shelf life.

LoTiempo said he would insist on live testimony whenever possible.

Whenever possible? Maybe LoTiempo is better at writing zeros on an 18b application than he is at remembering constitutional thingies, like the confrontation clause. It’s really, really hard to cross-examine a transcript, which is why those robed people in D.C. bothered to decide Crawford v. Washington. Whatever difficulties are presented by lost witnesses aren’t the defense’s problem, Andy, and you don’t have suffer testimony read from 27 year old transcripts. Even if that means it’s impossible for the prosecution to make its case.

But all this is happening in beautiful Buffalo, so it’s yet to be seen all of the bill of rights have made their way that far north yet.

H/T Our hinterlands correspondent, Kathleen.

Nassau DA Rice Feels The Heat

While it’s premature to claim democracy is alive and well in Nassau County, at least it’s not yet moribund. After Joy Watson, former heard of sex crimes and candidate for District Attorney, finally had an opportunity to state her position on why Rice blew the decision to decline to prosecute Danmell Ndonye, the Hofstra false rape accuser, her opponent, current District Attorney Kathleen Rice was forced to publicly explain.

Of critical significance, the plan to bury the decision and story after the 5:00 o’clock Friday press release was thwarted. Feeling the pressure of a story still kicking despite her efforts to use the news cycle to her advantage, Rice gave a press conference on Monday to explain herself. No matter whose position one supports, the story has been resurrected.

Newsday, which apparently has plenty of room for Kathleen Rice even if there’s little space for Watson, reports:

In her first interview explaining the decision, Rice said her goal had been to ensure that the young woman publicly admitted guilt, accepted accountability and responsibility for her crime and repaid the community through service.

Rice, who said she never personally spoke to or saw the young woman, said she was satisfied prosecutors had plentiful evidence of Danmell Ndonye’s lie, which sent four innocent men to jail.

This is a fundamental shift in strategy by Rice, who earlier explained that her reason for declining to prosecute was to avoid discouraging rape victims from coming forward and because Ndyone was “deeply troubled.” The strategy has now turned to a “tough on crime” rationale, apparently based on a belief that prosecuting would have somehow served to sweep this under the carpet.

“We did not want any loopholes,” Rice said.

Without explaining what “loopholes” she’s talking about, the only ones that come to mind our those nasty constitutional rights and criminal procedures. Was it fear that the police, or perhaps her office, had violated Ndonye’s rights in the course of its investigation? Is there a loophole that Rice knew about that remains unknown to the rest of us? Or is this merely a play on the public to denigrate the Constitution as a bunch of technicalities that let criminals go free?

Rice, who defeated Dillon four years ago, slammed back, saying Watson doesn’t understand how modern prosecution works.

“Had this case gone to court, the record would have been sealed,” Rice said, noting that Ndonye’s age and clean record, combined with a misdemeanor criminal charge likely would have netted her zero jail time.

“There would be no public admission,” Rice said, “no public accountability,” because as a youthful offender the records would have been sealed.

Rice’s flip-flop aside, this is simply wrong. The prosecution would have been public, as is every criminal prosecution. Ndonye, at 18, could not have been prosecuted as a minor, and most assuredly would not have been. While it’s possible that she might have been granted “youthful offender treatment” at the time of sentencing, which would have caused her criminal record to be sealed, it happens after the prosecution is completed, not, as Rice appears to suggest, to conceal the prosecution from public view. It would have had absolutely no impact on a public admission or public accountability, which comes before the YO determination is made.

And as to a prosecution “nett[ing] her zero jail time,” didn’t anybody tell Rice that Ndonye isn’t going to jail under her “deal”?

While it might be worthwhile to parse Rice’s explanation in further detail if it truly bore a connection to her decision to decline to prosecute, there is little to suggest that it’s anything more than an effort, in the face of public outrage, to re-spin the move..

“There is no doubt that this is not a politically popular decision,” said Rice.

Every once in a while, the public will surprise a politician by recognizing their position as fundamentally irrational. It doesn’t happen often. The problem now is that Rice’s new strategy, that the courts couldn’t be trusted to be as tough on crime as she is, makes no more sense than not prosecuting an admitted false rape accuser because it would dissuade true rape victims from coming forward.

The Silent Monday

Not to beat a dead horse too hard, but the story of Danmel Ndonye’s false gang rape accusation is nowhere to be found in today’s Newsday. Before the qualifying “false” was added, it was one of the biggest stories in Nassau County, national in fact. Now, silence. The District Attorney’s trick worked well.

Given that there’s but one newspaper that covers Long Island, New York, and that one Newspaper ran a story about what District Attorney Rice’s opponent in the upcoming election that barely mentioned the opponent, and included little more than a snippet of what Joy Watson had to say, it seemed appropriate that someone provide both the forum for her thoughts as well as a reminder that the story may have died, but not the issue.

Joy posted a comment about the case and Kathleen Rice’s decision to let Ndonye have a free ride. It appears here complete and uncensored through the filter of a reporter’s keyboard.

I welcome this opportunity to spell out my reasons for outrage over the DA Rice’s failure to prosecute. The false allegation is indeed a crime. Failure to charge sends a message to those who make false allegations – if you lie, and in this case potentially sending young men to prison for 25 years, but are troubled, the DA will give you a pass from the criminal system. Why do we need judges? Why do we need police? Let the DA handle everything. And isn’t it fair to say that anyone who would falsely accuse someone of rape is troubled? Is the DA, by her conduct, suggesting anyone who makes such an allegation gets a pass??

More importantly, Rice’s decision downplays the impact on the lives of these young men and their families. They are the true victims of a false allegation motivated by a young woman unable to explain her whereabouts and condition to her boyfriend. The focus should stay on the criminal conduct, the only criminal conduct in this case, that of the false accuser.

To suggest that charging this woman would deter true victims of rape is illogical and wrong. The prosecution of false accusers will provide greater support to those who are true victims because the public will come to realize that false allegations will not be tolerated.

For Rice’s spokesman to categorize my reaction as “shoot first and ask questions later” is also illogical and ignores my 20 years as a Nassau prosecutor, handling Sex Offenses for over 7 of those years. While false allegations in Nassau might be new to Rice, I have handled such cases, resulting in arrests, exactly as I proposed in the media.

There could be an entire new thread about the expense to the taxpayers of this County caused by this false allegation, but that’s another story. As is Rice’s failure to mention that her office signed off on the charges before they were brought.

Without comment, Rice’s camp attacked my motives as political. I am proud to be a candidate for DA. The mishandling of this case is additional evidence of why I should be elected on November 3rd.

Given the importance of the race for District Attorney, coupled with the importance of the decision to let a person who accused five men of a rape that never happened go unprosecuted, people should know more than what the one organ on Long Island deigns to tell. It should not quietly fade away over the weekend.

Today is Monday, Yom Kippur. The Day of Atonement. It’s a day to remember sins, not forget them.

Issue Joined on a Hofstra Sunday

It’s not that the Hofstra false rape case is the most important ever, but that the 5 o’clock Friday effort to bury the story over the weekend by Nassau County District Attorney Kathleen Rice shouldn’t be allowed to succeed. Whether you agree with the decision not to prosecute the false rape accuser or not, at least someone should know.

Given that Rice is up for election, which appears to be her primary motivation in the exercise of prosecutorial discretion, it’s only right that her opponent for the job be given her say.

The candidate, Joy Watson, who headed sex-crime prosecutions under former District Attorney Denis Dillon, said the seriousness of the accusation and the impact on the accused men warranted a criminal prosecution.

“I certainly would have held her to the charge,” Watson said while campaigning in Westbury. “I would have charged her and let the probation department and the court make a determination as to the appropriate sentence.”

“If the system is going to say, ‘You’re troubled, so you’re not going to get charged,’ what kind of reverberations does that send through the entire judicial system?” asked Watson, who is running on the Republican and Conservative lines. Rice is a Democrat.

Well, I’m not quite sure what is meant by “reverberations”, and unfortunately Joy Watson doesn’t tell us. Considering that she’s running for District Attorney, it would have been a better idea to tell us what she thinks rather than asking an obtuse rhetorical question. One informs. The other, well, doesn’t.

This would have been an enormously significant opportunity for Joy Watson to stake out her position on what she would do as DA, particularly since she was once the bureau chief of sex-crimes in Nassau County. While the false accusation isn’t a sex crime, the debate surrounding the decision to decline prosecution is all about sex crimes. Who better to shine some light on the subject? But she didn’t.

And Rice, not being shy, replies:

Rice spokesman Eric Phillips said the district attorney “got to the truth quickly, got four innocent guys out of jail and held their accuser accountable.” He called Watson “a candidate . . . whose political pandering has given us all an insight into her ‘Shoot first and ask questions later’ philosophy of justice.”

If one squandered opportunity is bad, two is worse. What the heck is Eric Phillips talking about? It makes no sense. First, he ought to know that Rice should never raise the issue of political pandering, her being a carpet bagger brought in by Suozzi from Philadelphia to fill the slot on his ticket that would have otherwise gone to someone he really couldn’t stand. And second, when it comes to political pandering, nothing can top what Rice has said about drunk driving, pandering in its purist form.

Then comes this “shoot first” quote. You mean like Rice throwing four innocent men in jail for a rape that never happened? There’s nothing about what Joy Watson’s said that bears any connection to that characterization. Maybe he was caught without a decent quote at hand and did the best he could?

For reasons that should be clear to anyone, the elected District Attorney’s decision is one that she will be forced to live with, if anybody remembers it after her deft media handling. For reasons that should similarly be clear to anyone, Rice’s opponent doesn’t appear to either have any clear vision of how and why discretion should be exercised either, or else her lack of experience in speaking with the media prevented her from making her position clear.

There is one additional possibility, though I hesitate to believe that it could be true. Perhaps Joy Watson had something meaningful to say about the decision not to charge Danmel Ndonye, but Newsday, whether author or editor, decided to leave that part out of the story. If so, I invite Joy Watson to let us know. Of all the various possibilities, that would be the one that is most damaging.

Real Lawyers Eat Weenies

Few in the blawgosphere are willing to post anything that might offend anyone. God forbid that a potential client or referral source is made to feel badly about himself, resulting in a loss of revenue to the writer. “Well, he’ll never get a case from me!”

There’s a name for such people, and Dan Hull at What About Clients? isn’t afraid to say it out loud. They’re weenies. They come from Generation Weenie.

What is Generation Weenie?

Being “just a copy” is outlawed. I just left Los Angeles, where it’s tough to offend anyone about anything. Like NYC, LA is not for everyone. No one cares what you think in either city. It’s wonderful. My take: both LA and NYC these days make even Chicago seem like an effeminate Alan Alda-land. PC and unoriginal thought are frowned upon in America’s two most important cities. LA and NYC tend to look down on Weenies. If you live somewhere else, try not to be a Weenie.

Frankly, I’ve been running into a lot of Weenies these days–from cultural liberals who keep surrounding themselves with no one but like-minded people, to religious educated white collars too afraid or too lazy to think anymore on their own, to “professionals” who always reserve the right to do third-rate work. They have this in common: they are highly emotional about keeping to their low aspirations and narrow views of the world.

They’ve stopped growing–and they are very happy with that, thank you very much. These people have children. It’s worrisome.

Yes, this covers a broad swathe of people. While the Slackoisie, because of its narcissism, will likely think he’s writing about them, he’s not. Generation Weenie is not about an age group but an attitude group. Weenies come in all ages. They even have a website about them, which comes with its own caveat: If it offends you, then you are a member of Generation Weenie.

Some people say that I’m mean. Mike told me the other day that sometimes I’m a “dick” in some of my responses to comments. One might suppose that was a weenie thing to say, but Mike’s no weenie. He was just being accurate, and I took no offense. The problem is that Generation Weenie is offended by anything that challenges its self-esteem and entitlement to be weenies.

We even train young lawyers to be weenies. Rather than toughen them up so they won’t cry in the courtroom the first time a judge doesn’t give them a trophy, they’re taught that totally wrong answers are just differently correct. Law student weenies have no clue that they are weenies. Tell them that they are weenies and they will tell you that you are mean and bitter. That way, they won’t have to face up to their weeniness, taking sanctuary within the bosom of their fellow members of Generation Weenie.

Generation Weenie supports its members, one coming to the aid of another to support and enable each to be a weenie. They use words like “I feel” and “I believe” and “I am confident” as if the world was about their emotions. When you prick one, they all bleed. Then they all moan about it, sharing in the pain.

It’s much easier to be a member of Generation Weenie than to be your own person. I wonder how many of you I’ve offended today?

A Case I’ve Never Tried

Over at Gamso For The Defense, Jeff Gamso tells of his experience representing a defendant in a capital case. For anyone who doesn’t understand what “capital case” means, it’s the beloved death penalty. Lose big and the defendant is put to death. If I read Jeff correctly, he didn’t try the case but either did the appeal or post-appellate work. I’ve done nothing similar.

During the brief period that New York had a theoretical death penalty within the time frame of my practice, I’ve never represented a defendant in a capital case. Thank God. I’ve never wanted to. I don’t want to. Call me what you will, but I hope to never be in that position. Never.

Jeff’s recounting of the experience sums it up.

And the family came up to me, not all of them and not together, but one at a time, his mother first. It was like a mantra as one after another said

You did all you could

Meaning it for comfort. Meaning that it was all that could be done. Meaning that some god had chosen and I should know that I’d tried my best and they appreciated that. And I said to each of them, “Thank you.” Because what else can you say. But you know, there’s no comfort in those words.

It’s not that they’re empty. They’re meant sincerely, the motive is pure and the sentiment is all positive. But that’s from the speaker.

At your end, when your client has just been murdered and you’ve been powerless to prevent it, the only answer is that if this is all I could do, then I’m not good enough. And if it wasn’t all I could have done, then I’m neither good enough nor diligent enough.

In my mind, every case I try is a capital case in the sense that I take it with the utmost seriousness. Some clients think we see cases on a sliding scale of seriousness, with less consequential offenses sloughed off and more serious cases getting all the attention. That’s not true. Every case is treated like life or death; every trial is fought to be won. Anything less is a personal disgrace, a surrender and a waste of time. If you don’t try a case to win, you have no business trying cases at all.

But others become inured to losing. The obvious example is the lawyer who sleeps during a capital case. It seems unimaginable. Real lawyers agonize over trials and especially waiting for the verdict. Jeff uses his experience to jump over to Norm Pattis’ writing about waiting, day after day, for his jury to return a verdict in a murder case. Norm talks through the pain of waiting.

For days now, Norm Pattis has been agonizing on his blog ( here and here and here, for example) about the murder case he’s been trying.

As I say, I understand. All of us who’ve been there, understand. The cases are about the clients. But the agony is about us, too. Our adequacy, our skills, our competence.

Norm’s jury came back, guilty on a lesser and hung on the top counts. That means he gets to do it over again. Jeff posts about the double jeopardy implications of this retrial, and reflects on how precedent justifies the illogic of giving the government multiple tries to convict despite the constitutional admonition that no person shall twice be put in jeopardy. But that’s the law, and they’re sticking to it.

But what of Norm? He’s pushing adrenaline through the roof waiting for the jury to utter the right words. Hung beats guilty any day, but isn’t nearly as sweet as not guilty. As soon as the words come out of the jury foreman’s mouth, your body deflates. All the energy drains out of you. You’re spent.

The thought of retrial is horrible. You o come to the first trial with an edge, psyched up to leap into the unknown, with your arsenal of weapons sharpened and a few up your sleeve that the other side knows nothing about. The ability to shock and awe your adversary and her witnesses is the moment you live for.

Retrial is an entirely different story. Norm says “there is no reason for the state to expect a better result next time,” but there is. Next time, they will clean up, smooth out, the gaps and rough edges of their witnesses’ testimony. There will be no surprises the second time around. Transcripts of every word spoken will be typed and read, and reread. The spontaneity of the first trial produces a genuiness of our arguments to the jury. The second trial comes off as rehearsed, lacking the raw emotion that electrifies the first trial.

All this works to the prosecution’s advantage. The greatest benefit is that they has the witnesses, and the witnesses always testify better on the second try. They’re still nervous on the stand, giving them the sense of authenticity, but have been well-schooled to avoid the pitfalls of the first trial.

The defense, on the other hand, has used up all its surprises in the first trial, and has shown his skills to everyone in the courtroom. Sure, some arguments can be better honed, and there are no surprises from the prosecution’s side either, But skill and surprise is a far more potent weapon for the defense than the prosecution.

My heart goes out to Norm, who has to hunker down and reach critical mass a second time to gear up for retrial. Thankfully, even if the jury foreman fails to say the word “not” before “guilty”, he won’t have to hear the comforting words of the family of a client who has just been murdered by the state.

The Look From The Rear

It seemed like Anthony Arambula did everything right. A man breaks into his Maricopa County home and runs into his son’s bedroom. He sends his wife and kids outside, then gets his gun out of the closet and holds the burglar at bay. He calls 911. But what happened after that wasn’t quite what he had in mind.

From Courthouse News :

Phoenix Police officers already in the neighborhood heard the crash of the Arambulas’ window. When they approached the house, Lesley says, she told Sgt. Sean Coutts that her husband was inside holding the intruder at gunpoint. Lesley says Coutts failed to pass on that information to the two other officers.

Inside the house, the Arambulas say, Officer Brian Lilly shot Anthony six times in the back while he was still on the phone with the 911 operator – twice when he was on the ground.

The officers ran into the bedroom after Anthony told them, “You just killed … you just killed the homeowner. The bad guy is in there.”

Darn it. Cops hate when that happens. No, not because they pumped 6 bullets into the wrong guy, but because they could get in big trouble. Cops hate getting into big trouble.

Tony Arambula didn’t die, however. Instead, he sued. In a rather interesting complaint, more along the lines of melodramatic chatting than legal description, one detail makes the cops’ efforts to cover up their mistake exceedingly difficult. It seems that the 911 call was still being recorded as Lilly was busy shooting. And still recording after he stopped and realized his mistake.

According to the complaint, Lilly can be heard on the 911 tape telling Coutts, “We fucked up.”

Lilly says on the tape that he did not know where Anthony’s gun was when he shot him and that he “opened fire because he heard loud noises and saw someone who looked like he might be the ‘Hispanic’ male they were pursuing” before getting to the Arambulas’ house, according to the complaint.

But we all look like Hispanic males from the rear.

If things were bad after Lilly put six bullets into Tony, they got worse as the cops were left to figure out what to do about it.

Sgt. Coutts was quick to commence the cover-up of their terrible mistake. Sgt. Coutts asked Office Lilly where Tony’s gun was at the time Officer Lilly had opened fire on Tony. Officer Lilly admitted that he did not know where Tony’s gun was: ‘I don’t know. I heard screaming and I fired.'”

Lilly later told a police internal affairs investigator that Anthony had pointed his gun in his direction, “in the ‘ready’ position,” the complaint states. But Anthony Arambula says he was facing away from the officers, who could not have even seen his gun.

The complaint continues: “Still not knowing that he is being recorded n the 911 tape, Sgt. Coutts interrupted Officer Lilly’s admission and apology with his assurance that the cover-up would commence: ‘That’s all right. Don’t worry about it. I got your back. … We clear?'”

And it goes on and on, with the cops dragging Tony Arambula outside the house by his shot leg onto gravel in the backyard, where he was put on display for his wife and children. He was placed on the “hot hood” of the squad car and driven down the street writhing in pain.

Later, they tried to get the gun dealer who sold Tony the weapon to go along with their pretense that the gun may have been illegal, but the dealer refused to play ball. Then detectives tried to pin drug warrants on Tony from other states that he’s never been to, but the details didn’t match.

It’s so much easier when you shoot the wrong guy and just put a throw-away in his hand to justify it. It’s harder when you shoot the homeowner. And it’s really hard when the 911 recording catches it all. And you thought it was easy to be a cop.

H/T Dissent.