This has already made its way around the internet, but just landed on my screen courtesy of Dave Hoffman at Co-Op.  Given how much we lawyers just adore science, and view it with awe and wonderment, relying on it as irrefutable proof of fact and convinced beyond a doubt, reasonable or otherwise, that if it’s in a journal, it must be so, it’s critical that we understand the sausage-making process.

Sit back.  Grab a full bottle of Patron Gold and bowl of guacamole on this Labor Day weekend, and relish in the fact that we, criminal defense lawyers, aren’t the only miserable people in the world who feel as if we’re trying to stop the tide from coming in.  Feel the warm glow, from the Patron if nothing else, envelope you.  And have someone you love notice the wry smile on your face as you reach point 104, which reads in reaction to the demand that length be shortened, “Declare ‘death to all commas’ a worthless piece of unnecessary punctuation if ever there was one.”

Enjoy.

How to Publish a Scientific Comment in 1 2 3 Easy Steps

Last week, researchers at Stanford University published a study showing that the most persistent multitaskers perform badly in a variety of tasks. They don’t focus as well as non-multitaskers. They’re more distractible. They’re weaker at shifting from one task to another and at organizing information. They are, as a matter of fact, worse at multitasking than people who don’t ordinarily multitask.

“Multitaskers were just lousy at everything,” said Clifford I. Nass, a professor of communication at Stanford and one of the study’s investigators. “It was a complete and total shock to me.”

Initially suspecting that multitaskers possessed some rare and enviable qualities that helped them process simultaneous channels of information, Professor Nass had been “in awe of them,” he said, acknowledging that he himself is “dreadful” at multitasking. “I was sure they had some secret ability. But it turns out that high multitaskers are suckers for irrelevancy.”

The 911 operator tells the distraught caller not to worry, the police are on their way and will be there any moment.  There’s a sigh of relief.  The people we depend on to come in an emergency, to help us, to make things better, are on their way.  Everything will be alright.  That’s what goes through our minds.

Things didn’t quite work that way for Pam Jordon, via Turley, according to the EyewitnessNews12 in Wichita, Kansas.  Her grandson, Isaiah, was found floating in the backyard pool.

What hole exists in the psyche that makes some people, some lawyers, feel the need to make someone their leader, and them his follower?  Whatever it is, whether the cool-aid, the fear, the lack of self-esteem, it’s flowing freely at Gerry Spence’s Trial Lawyer College.  And Norm Pattis has become the target of their ire.

Norm, a one-time follower, one-time challenger to the cult, had made peace with Spence.  Why Spence cared whether he had Norm’s love is beyond me, but being a magnetic personality and perhaps the greatest lawyer of our time, Spence apparently had the opposite void of his followers, the need for admiration and validation.  When Norm withheld his love, Spence wanted it back.  The Treaty of Versailles followed.

But when questions arose about financial practices at TLC, called the Ranch by those whose “lives are changed” by a bit of psychodrama and a lot of basking in Spence’s reflection, Norm called them on it.  It’s not clear why Norm broke the truce, or why he wanted to jump into a fray where there were so many happy sycophants to beat him to a pulp.  Norm is either inordinately brave or stupid, and which one is subject to where you stand.

Having never attended the Trial Lawyers College, and therefore not being one of the Tribe (as they call themselves), I have no horse in this race as to whether this is part of a financial scam being run for the benefit of Spence, or whether he’s deserving of whatever scarce resources he can get his hands onto such that any infidelity should be overlooked.  I can squint with the best of ’em, but leave it to others to sift through the numbers and the lease and the 501(c)(3) paperwork.  There are plenty of dirty not-for-profits in my own sphere that Wyoming can deal with its own.

But the attack on Norm from the anonymous Tribespeople presents a different problem.  These are lawyers all, and as such should be able to separate their need for religion from their intellectual ability to recognize legitimately raised issues.  They may well choose to ignore or overlook them, but attack because someone announced that Gerry Spence is marching around the ranch naked?  Scratch that image.  Too late.

In a question posed to Norm in a tone that was so frail as to melt the hardened heart and compel a response, Cheryl Carpenter asked why Norm had abandoned the Tribe, had chosen to attack Gerry.  Why, if nothing else, couldn’t Norm just sit it out and let things go as they would.  Norm explains, to the extent anyone can explain, the path that led him to do the unthinkable: Question the leader of the cult. 

As someone who doesn’t care much for cool-aid, I can clearly sense Norm’s ambivalence toward Gerry Spence.  There is some weird love and admiration there, while simultaneously discomfort with his elevation to lawyer-god status.  Isn’t it enough that Gerry Spence is a great, if not the greatest, lawyer of our time?  Must his Tribe go that next step to make him above reproach?  And does his Tribe, many members of which I know and respect, lose their ability to detach themselves from their spiritual leader and see that he’s just a man?

Not to bring the believers down, but there’s one hard point about which you need to be reminded.  You’ve gone through TLC and have come out the other end. Yet you are not Gerry Spence.  You haven’t achieved lawyer Nirvana.  Your pinball score isn’t any higher than top quality non-tribespeople, and some of you aren’t anywhere near high score.  You may have enjoyed the filling of that spiritual hole left behind by childhood trauma or parental neglect, but it didn’t make you Super Lawyer (with or without cheese).

You can adore Gerry Spence all you want.  Put up that really cool photo of him on your office wall if it makes you feel better.  Hang the sage/dirt amulet on the corner of your law school diploma.  Whatever.  But don’t blame Norm Pattis because the cool-aid doesn’t last forever. 

If Gerry Spence is your cup of tea, enjoy.  But this cultish behavior borders on the sick.  Whatever you do, ignore the call to buy brand new Nike sneakers. 

When the breathalyzer showed that Jamie Lockard, 53, wasn’t above the legal limit, Lawrenceburg, Indiana, Police Officer Brian Miller wasn’t satisfied.  Odd, isn’t it, that the magic black box that conclusively proves guilt wasn’t good enough to prove innocence.  So like any good police officer who is certain that he’s right, evidence notwithstanding, Miller did what he had to do.

Lockard was taken to the hospital, strapped to a gurney, where he was held down as a nurse inserted a catheter into him to extract urine.

Apparently, this was done pursuant to a warrant, raising the curious question of what exactly Miller alleged, and what exactly the judge who signed the warrant was thinking, given the nature of this most intrusive invasion of his body in light of the breathalyzer reading.  Regardless, the end result of the urine test showed that Lockard was still under the legal limit.

Most people are painfully well aware of how successful advocacy groups like Mothers Against Drunk Driving have been in overstating the harm, and vilifying ordinary citizens, in their zeal to stop drunk driving.  But just how far is this going to go?  We’re just a heartbeat away from removing kidneys to prove that a fellow drove drunk, all evidence to the contrary notwithstanding.

As most men can attest, there are few things that one can do to a person that will induce immediate nausea and the fight reflex than insert a catheter against one’s will.  There are places where no one should go, and this is one of them.  Is there anything that Lockard could have done, or Miller could have believed, that would justify an intrusion into a body like this? 

So we’re clear on the evidentiary need, if Miller so firmly believed that his observations proved Lockard drunk, then he’s certainly permitted to offer them as testimonial evidence to make his case.  Drunk driving can be proven through testimony, as it was in the days before we had little black boxes that do mysterious and magical things, or even lengthy catheters.  Sure, it lacks the panache of scientific evidence, which no jury would ever reject since science supplants reason, but it’s perfectly viable evidence.

The catheter invasion, therefore, is merely the cop’s preference to obtain better proof than whatever it is he’s got to offer.  In other words, he wanted the test to gild the lilly, afraid that his own observations wouldn’t cut it.  And if so, the worst that would happen is that Lockard walked. 

Did these thoughts not occur to the judge who signed the warrant authorizing the forcible insertion of a catheter in a man’s penis?  A man, I might add, who the magic black box said was not intoxicated beyond the legal limit.  Do we need to add “insertion of catheter” to “tasing” on the list of things that should be done to prosecutors and judges before they trivialize the consequences of their actions?

As a society, we give an extraordinary amount of authority to a handful of people and expect them to demonstrate an iota of sound judgment before using force against us.  What we cannot allow, after the fact, is to ask over and over, what the hell were they thinking.  Does it really require much thought for this cop, or his enabling judge, to have realize that the forcible insertion of a catheter to obtain better evidence is just plain sick?

And naturally, having failed to obtain the evidence of Lockard’s drunkenness after execution of this disgusting and disgraceful conduct, they were constrained to charge him with obstruction of justice.  Maybe because he didn’t smile as they shoved the catheter into a place where no one should ever go.

H/T Popehat and Turley

It could easily be seen as a compliment to Defending People blawger, Mark Bennett, that he finds himself in the crosshairs of others who want to be him.  Just recently, he’s had to fend off some local third-stringer named Andy Nolen who got the brainstorm to smear other Houston criminal defense lawyers with fake reviews on yahoo!, while making himself the savior.  After being called out by Mark, a false review was posted to Avvo, which was quickly tossed.

These are the things real lawyers are forced to go through in the digital world.

And then there was Melina Benninghoff, whose blog was a simple scraping of posts stolen from elsewhere, notably Bennett’s.  It doesn’t matter whether Benninghoff did it personally or left it for someone else to do for her, since (as has become Mark’s mantra)when you outsource marketing, you outsource ethics. 

This brings back the fond memories of another scoundrel, U.S Law.com, a low-rent garbage website that tries to eke out a living by stealing content from real blogs and selling advertising. 

When this is done by lawyers, it’s a clear representation of how marketing has corrupted the ethics of desperate lawyers who are incapable of maintaining a practice based on their skills and competence, so that they’ve chosen to scam the public (and other lawyers) to create the impression of competence where none exists.  No, they shouldn’t be lawyers.  No, they shouldn’t be trusted.  No, they shouldn’t be hired.  Not even for a quick mani/pedi.

But the underlying problem isn’t one limited to lawyers. The problem is that some geeks are of the view that there are no rules when it comes to the internet; at least no rules that apply to them. Because it’s so easy, no, simple, to steal content via RSS feeds from anyone, anywhere, they are entitled to do so, no questions asked. 

The thought process goes something like this:  We (meaning those of us who create content) don’t get it.  If our content is put out on an RSS feed, it’s an invitation to the rest of the digital universe to take it, use it, change the name and offer it as their own.  It’s not their fault that they’ve taken us up on our RSS feed invitation. If we put it out there for them to take, then why should we blame them for doing so?

Before explaining why this notion is fundamentally wrong, allow me a moment of reflection.  Bennett learned of Benninghoff’s theft of his content from me, when I notice that a link to me came from Melina Benninghoff’s “blog”.  After seeing the scraping, I sent Bennett an email alerting him to the theft.  I know that Bennett, as a creator of content, isn’t too keen on worthless rats stealing the fruits of his effort.  I knew that he would want to know, and wouldn’t take kindly to it.

A few months earlier, following my excoriation of U.S. Law.com for ripping off blawgs at will, Bennett sent me a book called Digital Barbarism by Mark Helperin, who makes me look like an amateur curmudgeon.  I’ve been reading the book slowly, as Helperin’s words take time to absorb and require absorption to appreciate.  It’s a work of genius.  I might consider reviewing the book, but I’m unworthy.  Mark Helperin is far better a writer, a thinker, than to deserve the praise of a lowly lawyer like me. 

Now back to the geeks.  Stealing doesn’t take brilliance, and barely takes effort.  See the plate glass window at the front of the store?  Throw a rock through it and you can grab anything shiny inside you want.  It’s simple.  Any moron can do it.  You can do it. But it’s illegal, it’s criminal, it’s wrong.  The fact that you can steal easily doesn’t change the nature of stealing.  What synapse isn’t firing that leads you to think otherwise?

Two factors seem to embolden the geek entitlement mentality.  First, they assume no one will know that they’ve stolen content from others.  It’s a big digital universe and it takes an awful lot of vigilance, or some dumb luck, to stumble on a theft.  Second, there isn’t much that can be done about it.  We aren’t likely to go around suing every scumball website like U.S.Law.com that’s existence is premised on theft, lies and idiocy, even if we can figure out who is operating the sleazy sites.  Like the eponymous Chase of U.S.Law.com, likely a twelve year old working out of his mommy’s basement trying to scam up enough money to keep the juice flowing to his playstation 3.

But legitimate blawgers have one weapon available, and it’s a particularly potent weapon when it comes to scum like the Andy Nolens and Melinda Benninghoffs of the world.  We can shame them by making sure that as many people as possible are aware of the fact that they haven chosen to engage in unethical, scummy conduct.  We can undermine their purpose by using our page rank to surpass their page rank, so that when they not only obtain no benefit from their sleazeball tactics, but our perpetually held out to ridicule for what they’ve done.

It’s possible that Melina Benninghoff doesn’t even realize that she’s become the butt of some very harsh criticism.  It’s possible that she allowed some ignoramus to have his way with her lawyer marketing strategy.  But this remains her responsibility; Responsibility is what being a lawyer is all about (and no, it’s not about making lots of money so you can achieve work/life balance).  Whether she actively or passively failed to take responsibility for her online presence, she remains responsible.  That’s one of the burdens that comes along with a law license.  Too hard to do?  Tough.

If Benninghoff is a real lawyer, then she will profusely apologize to Bennett, and everyone else she’s harmed.  She will admit her wrong and acknowledge that she has wallowed in the gutter.  She will learn from this egregious wrong.  She will no doubt be given a stern lecture, but will ultimately be forgiven, for she is but one of a multitude of bone-headed lawyers who have been taken in by the culture of legal marketing and social media that has undermined what little remains of the integrity of the profession.  In other words, she’s neither alone nor special. 

She’s just pathetic, along with so many others who think that lawyers put on dark red lipstick and hotpants to walk the streets in search of clients.

As for Andy Nolen, there’s no excuse and no forgiving.  Like another of his ilk, Ollie the Cabdrivertising lawyer, whose time will be occupied defending the this post from Mark Bennett.  Some quasi-senscient nutjob named Wayne Conley, who is apparently the guru in charge o
f Melina Benninghoff’s internet and twitter marketing effort, has decided to go toe to toe with Bennett.  I imagine the scraper will have to be scraped.  This Wayne Conley is not merely illiterate, ignorant and foolish, but totally out of his league trying to mess with “a loved one” of Bennett’s. 

There’s only one question remaining.  What will Melina Benninghoff have to say about all this?  Stay tuned.

It was just too much, having to return to court twice on the same day to contest yet another traffic ticket, and Fire Chief Don Payne didn’t hesitate to tell the judge what he thought of the police and their speed traps.

The response from cops? They shot him. Right there in court.

While I often bemoan the loss of privacy in these days of wine and internet. no less a concerned corporate citizen than Google has come to the rescue.


Google Opt Out Feature Lets Users Protect Privacy By Moving To Remote Village

The really bad thing about this Onion piece is that it’s so very true. 

H/T Randy Barnett at VC

While it’s not entirely clear why, CrimLaw’s Ken Lammers posted about the Supreme Court’s 1924 prohibition era decision in Carroll v. U.S., which he calls the Carroll Doctrine.  It’s more familiar to most criminal defense lawyers as the automobile exception, the decision that began the string of cases that exempted the search of vehicles from the strictures of the 4th Amendment.  It’s one of my personal favorites.

The slippery slope is one of the primary logical fallacies, that from one decision, others must inevitably flow.  And indeed, it is rarely inevitable, as there are conceptual ledges where the slide can, and usually should, stop.  But the automobile exception is one of those rules where the slide continued unimpeded, down, down, down.

Ken described the automobile exception:

After a review of a number of statutes, basically doing an original intent analysis, it states that for buildings a warrant may be easily obtained while for vehicles “it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which a warrant must be sought.” Going further it explains that an officer can’t just stop any vehicle he wants to.

The measure of legality of such a seizure is, therefore, that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops has contraband [] therein which is being illegally transported.

To sum it up, Carroll allows LEO’s with probable cause to search an entire vehicle because of the mobility of the vehicle and the difficulty of obtaining a warrant in a timely manner.

I can already hear the howls of protest. “In the modern world we have radios and cell phones. Carroll is outdated law!” Well, maybe so in your locality, but let’s consider those of us in far Southwest Virginia. My county borders Kentucky. There are mountains everywhere, cell towers are extremely spotty, and there are plenty of places back in the way back, with three or four mountains between the deputy and civilization, where anything short of satellite communication just ain’t going to work.

Via Radley Balko, Georgia Preacher Jonathon Ayers is no longer with us.  A mere 29 years old, with a wife 16 weeks pregnant, Ayers did what a preacher is supposed to do, helping sinners.  For that, he was executed by two plain-clothes officers of the Georgia tri-county drug task force.

According to the Atlanta Journal-Constitution,

“I’ve rerun it in my mind,” Carpenter [Ayers’ brother-in-;aw] said. “He had used an ATM inside, got into his car and then a black Escalade pulled up and [they] jumped out … If they ID’d themselves, he couldn’t hear them because his windows were up.”

GBI spokesman John Bankhead said witnesses heard the two men identify themselves as law enforcement officers.

The sheriff also told reporters the agents “yelled, ‘Police. Stop.’ ”

Stephens County Sheriff Randy Shirley said the shooting came after Ayers hit one of the agents with his car as he backed up. The second one shot Ayers because the 29-year-old minister had maneuvered his car toward him in a “threatening manner,” Shirley said.