Monthly Archives: October 2009

For Nassau County District Attorney

When I first met Kathleen Rice, shortly after having won the position of District Attorney from longtime office holder, Republican Dennis Dillon, she was still short of breath, cheery and interested in making friends. You see, aside from her patron, Tom Suozzi, a young, smart, charismatic scion of a local political family who rode the wave of tax and corruption discontent into the County Executive’s office, Rice didn’t knew anyone in the neighborhood.

She was plucked out of the Philly U.S. Attorneys office to run for the job, there being no registered Democrat locally who Suozzi could live with, and Rice, having once driven through Nassau Couty on her way to the Hamptons, had the strongest local ties of anyone on Suozzi’s list. Beyond that, no one in the business knew her, and she knew no one.

At my first meeting, she asked me if I could help her set up a meeting with the Nassau County Criminal Bar Association. Though not a member, I knew some of the guys and was willing to give her a chance to get to know the locals. I set things up and called her office, speaking with her sister, her nepostistic aide-de-camp (hose name doesn’t come to mind), who blew me off, informing me that Rice was a Very Important Person who had neither time nor interest in speaking to defense lawyers.

This was my first insight into the new Democrat in office. Young and self-important.

The word from the DAs office was that she was hated. Some saw this as sour grapes, Dillon having been around so long, and so well-regarded, he wasn’t going to be quickly replaced by this unworthy carpet-bagger. Years later, however, she was still hated, not for being an outside at the start, but for having used the office for her self-aggrandizing political agenda, putting its integrity at risk for the sake of making her bones.

Kathleen Rice has picked her spot, and that spot is drunk driving, where no punishment is too harsh, too severe, for her taste. From a 60 Minutes segment on drunk driving:

Curiously, one wonders what distinguishes a Democrat for District Attorney from a Republican. The answer in Nassau County, as opposed to the campaign for District Attorney in New York County where there was vigorous debate and discussion about protecting individual freedoms and constitutional rights while maintaining safety, is simple: The line on the ballot. Nobody told Rice what it means to be a Democrat. Clearly, she has no clue.

Her opponent, Joy Watson, was a long time assistant under Dillon, Chief of Sex Crimes and Deputy Chief of Major Crimes, having worked her way through the ranks over 20 years before leaving the office under Rice to become law clerk to a Supreme Court judge. She is regarded as a solid prosecutor, knowledgeable and experienced.

But the decision about who should hold the office of District Attorney isn’t about who you would hire for a staff position, but who is equipped to lead. Joy Watson has offered absolutely nothing to suggest that she’s a leader, that she has a philosophy to guide her should she be elected. Consider what it would mean to have Watson as District Attorney, and the only answer available is, “I dunno.”

Considering that she is running against an incumbant who is clearly vulnerable, a rarity given the Republicans in Nassau County who have gone from the last working machine in politics to a joke, Watson’s lack of vision is a manifest failing. Her campaign slogan says it all, Fair on Justice, Tough on Crime. That’s right, when it comes to justice, she’s only fair. And it never dawned on her that her slogan aspired to mediocrity.

But there’s a more telling issue lurking beneath the surface. Her endorsements come from the usual cast of rogues, the various police organizations around the county. Watson has neither sought, nor apparently desired, the endorsement of anyone outside of law enforcement. No wonder she’s only fair on justice, by her own assessment.

A third candidate, Anthony Colleluori, on the Libertarian Party line if the local papers are to be trusted, has been AWOL, and that’s about as much as can be said for Tony.

Given the choice between a Democratic candidate with no apparent recognition of any party value, who has used her office to push ever-harsher punishment to establish her merit and who has demonstrated a flagrant distrust of the judiciary and constitutional rights, and a career prosecutor who wants the job simply because she worked her way up the ranks and in the absence of any philosophical viewpoint to guide her, there is no choice at all.

While Rice has given ample reason not to re-elect her to an office where she has, and will continue, to cause damage to the very interests she was sworn protect, Watson has failed to offer any reason to vote for her. It comes down to a show pony versus a yeoman, not much of a choice. Despite the importance of the office, and the fact that a choice will be made for better or worse, an endorsement must ultimately be based upon some affirmative reason to want a particular candidate to hold the office. Given what the candidates have offered, neither candidate is worthy of endorsement.

It’s rather sad and pathetic that Nassau County, America’s first suburb and neighbor to the greatest City in the world, that there isn’t a candidate for District Attorney who has said or done anything to prove that she deserves the post. But there isn’t, and I cannot in good conscience support either candidate for District Attorney.

The Troll Tax

One of the rarely discussed downsides to writing a blawg is gaining the attention of the troll. That’s the “reader” who shows up, usually out of nowhere, with something negative to say about everything. It’s often couched in highly offensive language, replete with epithets or personal attacks. It’s frequently semi-coherent, just enough to recognize that it’s malicious without making enough sense to be worthy of discussion. The troll is the perpetual critic, working deep into the night to rip asunder anything constructive and leave only scorched earth in its place.

Marketing philosopher Seth Godin explains the troll this way:

1. trolls will always be trolling
2. critics rarely create
3. they live in a tiny echo chamber, ignored by everyone except the trolled and the other trolls
4. professionals (that’s you) get paid to ignore them. It’s part of your job.

Number 4 is the trick. As Seth notes, ” ‘Can’t please everyone,’ isn’t just an aphorism, it’s the secret of being remarkable.”

All the hype about blawging, whether it’s in terms of “business development” or becoming a “thought leader,” tends to puff only the positives, or at least the perceived positives, of putting one’s thoughts and ideas out there for public consumption. There’s peer review, but there is also exposure to a vast array of others who comprise your unintended audience.

These aren’t the potential clients, for those whose goal is marketing and self-promotion. These aren’t others who share your interests and concerns. These can be the lonely, jealous and inconsequential people, who no one listens to in real life or who are actively shunned by those who know them. These are the misfits of society who have found new life on the internet, inserting their venom at will as the equal of any other commenter. No longer will they be ignored, as they have been the rest of their lives. They can command attention by poking real people with sharp sticks through their keyboard.

To say “ignore them” is easy. To ignore them is often more difficult. It offends our instinct to fight back when confronted, particularly when confronted by something particularly nasty or stupid. This, of course, merely plays into the hands of the troll, whose purpose is to get a rise out of his target, to engage them on his terms and thereby exist in someone else’s world. This is really all it’s about for the troll, whose own world is so small and worthless that his existence there is meaningless. Allowing the troll to exist in your world is his goal, and he wins when you confront him.

For a blawger, a few issues arise that seem to interfere with the ability to ignore the troll. The first is that it’s unclear, at first, that he’s a troll. Perhaps he’s a legitimate commenter who simply disagrees with you. No serious blawger is troubled by a challenge per se. We learn a great deal from the thoughts of others, and only a fool thinks he’s right all the time.

But it’s the persistence, the constant and vehement attacks, that distinguishes the troll from the legitimate challenger.

Some blawgers fear that their failure to respond to the troll leaves other readers with the impression that the troll won, and they are wont to see their work dragged down into the gutter. While the wiser person will see the troll for what he is, it’s true that some readers will find merit in the troll’s attacks. Remember, we can’t control the intelligence or depth of understanding of people who chose to click on our links. Some will be brilliant and other thick as a brick. They all have access. That’s the nature of the blawgosphere.

An easy way to address the troll is to stiffen one’s resolve and enjoy the magic of the delete button. You do not owe any commenter a forum to spout, no matter how much they believe they are entitled or how strenuously they demand their right. Remember that in the troll’s world, they are the center of the universe. Your blawg is all about them. This is one of the reasons that they have no life outside of the internet. Their social skills tend to be lacking, and their grasp of their relative role in society is weak to nonexistent.

Many blawgers find it very difficult to delete comments. It runs against our grain of allowing free speech and expression, and makes us feel a little weak in our inability to let the negatives fly and confront them head on. It’s a form of online machismo, like walking away from a fight. It smells of cowardice.

Get over it. There are millions of people out there, far more than anyone can fend off even if they were mere ants. Eventually, they will swarm you and, itty bitty bite by bite, eat you alive. To spend your time fighting with each and every one of them is unproductive, and likely futile. Besides, this isn’t a fair fight, since the troll isn’t interested in considering new thoughts but in getting you to pay attention to him. You cannot win with the troll.

So it returns to Seth’s list:

4. professionals (that’s you) get paid to ignore them. It’s part of your job.

There is a large measure of courage needed to simply turn your back on those who contribute nothing of value to the discussion. It’s not cowardice, but strength and maturity to be able to smile at the troll, click delete and never think about it again. This is what a professional does. We are secure in our own understanding of what we do, sufficiently to feel no regret for having chosen not to roll in the mud with every troll who comes along. We control our fate, our focus, our time. We choose not to waste it, to sully our purpose, by giving over our decision-making powers to any fool who wants to pick a fight with us.

It won’t stop trolls from existing, from coming around, from bothering serious and thoughtful people. But it will prevent you from letting the troll dictate your efforts so that you can spend your time on matters more meaningful to you.

It’s A Crime Because . . .

The Texas Tornado, Mark Bennett, reacts to a comment on his Facebook page. The comment reflects a fundamental, and widely held, misconception about criminal law that plagues both the criminal defense lawyer and the honest prosecutor. The erroneous belief is fostered by politicians and media pundit, the former as a means of proving their worth and the latter as an easy story to evoke anger and drama, and hence interest, by their viewers.

I’m really okay with the DA prosecuting fault for serious car crashes (these are not “accidents”), assuming they charged it appropriately. Houston leads not only Texas but the nation in terms of car crashes, and Houston-area auto owners pay among the highest liability insurance rates in the nation as a result. Most crashes are caused by operator negligence, including speeding, red light running, cell phone use, etc. The overwhelming majority of the time, there’s no consequence for unsafe driving behavior. So when crashes occur, I’m in favor of there being consequences.

I have no idea whether the assertion that Houston drivers are the worst around. I would have given that title to Massachusetts drivers, or maybe Jersey, though some would say that New York drivers are the worst. Who knows? But the crux of the comment is that outcome dictates crime. If someone is killed in a car crash, someone must be prosecuted.

Intentional acts can be immediately distinguished. Use a car to deliberately cause harm, whether by trying to run someone down or trying to strike another vehicle, is a crime, pure and simple. A car is merely a “thing”, and like any “thing”, it has the potential to be used as a weapon, a device of harm. Use it that way and a crime has been committed.

But accidents are not intentional. Sometimes, despite a person driving a car in a reasonably normal way, an accident occurs. That may result in a fender bender or a fatality, the outcome having nothing whatsoever to do with the root cause of the accident. We have ascribed certain responsibilities to drivers in order to attribute fault for civil purposes, an example being that the vehicle behind must allow a sufficient distance so that it can safely stop without crashing into the car in front of it. Hit someone from behind and, with a few special exceptions, you’re responsible for the damages. But it’s not a crime.

There are accidents, meaning unintended acts, that do rise to the level of a crime. What distinguishes these is the driver has done (or not done) something that is a “gross deviation from the norm,” of such grave risk of harm to others, and that the driver knew (or should have known) and chose to disregard that risk, that the driver bears a rational, perhaps moral, culpability for the harm. To put it in more understandable language, he knew he was doing something really stupid that stood a good chance of causing an accident, and did it anyway.

Bennett explains:

A problem, though: whether a deviation from the standard of care is gross might depend on hindsight and on the result. Talking on the phone while driving is clearly within the ordinary person’s standard of care. Texting while driving may be too. 999 times out of a thousand, nothing bad happens. But when some poor schlub kills someone while chatting on the phone, the results make it look like a gross deviation from the standard of care—even though it’s something that most people do every day.

The point is that we don’t look to the outcome to determine whether the deviation from the norm demands prosecution, but the choice itself. More to the point, what constitutes recklessness should not be a matter of who can frame the most heart-string pulling, melodramatic, tear-jerking argument in favor of it being a crime.

That’s just turning the outcome back on the underlying choice again by rhetorical gamesmanship. It’s always a tragedy when someone is killed in a car crash that didn’t have to happen. It could well be argued that no “accident” had to happen. But they do, and despite all efforts to the contrary, to make people safer drivers and car safer to drive, accidents still happen and people still die.

In New York, we use the phrase “depraved indifference” to capture the worst, lowest, most, most offensive disregard for the life and safety of others. The classic example used to show depraved indifference is a person shooting a gun into a crowd of people, not intending to kill any particular person, but wholly unconcerned with the grave risk of death the shooter has caused. It’s meant to be a very high degree of mental culpability.

At the low end of the criminal spectrum is reckless endangerment, where a person “recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.” Reckless is defined as the “conscious disregard of a substantial and unjustifiable risk” that conduct will cause harm to another. It refers not to what others think of the conduct, but the actor’s state of mind. Certainly far below “depraved indifference,” but still a rather high hurdle. The risk caused must not only be objectively real, but one that the driver actually recognized before deciding to engage in the conduct at issue.

The criminal law is meant to place a fairly high barrier between the person who makes a mistake and the criminal. People make mistakes. Stercus accidit, to bad people and good. The question is what did the person do, or not do, rather than what consequence flowed from the act or omission.

The point is faced more squarely in this comment to a Houston Chron article about a deadly crash:

“Gonzalez’s attorney, Todd Overstreet said the incident did not rise to the level of a criminal case.” That’s because it wasn’t your family or loved one, slimeball.

Certainly, the pain felt by the family of someone killed in a car crash would make such blind rage understandable. But that’s why the law isn’t written by the families of victims, still raw from the horror. They don’t care about the purposes of the law, to prevent people from engaging in reckless conduct. They care only about retribution, and we should allow them their pain and emotion. We should not, however, allow their emotion to dictate policy in order to turn accident into crime. Not every death means a crime, from society’s perspective, has occurred, no matter how painful the death may be.

The bottom line is that crimes address conduct, not outcome. While outcome exacerbates the level of crime, such as a beating that results in serious bodily injury is an assault, while a beating that results in death is a murder, it remains that the beating itself must reflect the culpable mental state of the actor. Without that, the outcome is irrelevant.

Bennett concludes by questioning whether there is any purpose to criminalizing recklessness, as a severe example of negligence:

Prosecuting people for negligence, whether that negligence causes property damage, injury, or death ought to take a much lower priority than prosecuting anything involving bad intent. Should it be done at all? I’m not convinced that it should (to what end?) but I’m not sure I can formulate a principled rational argument against it. (If we don’t prosecute negligence, do we prosecute recklessness? Why?)

I’ll take a stab at this. Because we have free will, the ability to make choices that impose risks on others. Some risks, such as the mere turning on the ignition of a car and putting it into gear, creates a risk in itself, but not one that society is prepared to accept as being so inherently likely to cause harm that it constitutes a wrong. But there are other risks that go beyond the pale, that we refuse to accept as a reasonable choice because it is highly likely to result in harm, and we chose not to give a person who, for whatever reason decides for himself that he’s willing to take that absurdly high risk, to impose his choice on the rest of us.

As we walk outside our home every morning, we realize that we will be challenged with choices about our behavior. For most of us, we chose to engage in conduct that creates no greater risk of harm than most other people, both because we don’t want anything bad to happen to ourselves and we don’t wish harm on anyone else. Still, bad things may happen. That’s life. That’s not a crime.

What’s In A Name?

When twitter first came out, Niki Black urged me to open an account in my name. Why, I asked? Because you don’t want someone else taking your name and tweeting (this is her talking) as if it’s you. I did it, not so much because I feared someone stealing my identify, but because it cost nothing to cover my back. Niki was far more right than I realized.

Alan Colmes, the most pathetic excuse for a liberal ever, posted yesterday of some shenanigans by the Connecticut Republican Party against their rivals:

Connecticut Republicans created 33 phony Twitter accounts in the name of Democrats to send out phony messages mocking Democratic policies. Paddy at the Carnival caught it. And the state Republican chairman doesn’t even get how wrong this is.

It’s just too easy. There is no cost associated with opening as many twitter accounts as your fingertips can tolerate, and any available name (or variation on a name) is yours for the asking, provided that someone else hasn’t gotten there first. If you want to be someone else, whether its @EricHolder or @BritneySpears, you need only race to the keyboard and hope someone else hasn’t snagged the name first.

This isn’t about those who use parody to challenge the powerful or the fascinating, but about those who can swipe an identity for the deliberate purpose of misleading others into believing that they are following, and reading, the very thoughts and words of a real person. We can’t see who is on the other end of the keyboard, working feverishly to type in 140 characters to be spread across the twittersphere, and hopefully much further, for the purpose of deception.

With domain URLs, the problem generated a system to address the plague of cybersquatters and usurpers, and hopefully to protect those who happen to share the share the name of a more powerful person or exercise their right to challenge the mighty. From what I can tell, the system is only moderately successful.

Twitter has yet to achieve the maturity of dealing with the problems generated by impersonation, not to mention the variety of other avenues of abuse. To a large extent, we can weather the storm through vigilance, such as catching the Connecticut Republicans playing dirty, or volume, the real resonating louder and wider than the bad.

At least we can hope that this is true. For the moment, there is only a person in some backroom at Twitter headquarters deciding whether an account should be deleted or not, an abuse occurred or not. It’s not only a sticky decision, but the poor guy must be deluged with demands to stop “outrageous” conduct. No doubt some very irate folks are very demanding.

As the digital frontier keeps expanding, and there is no question but that have barely crossed the threshold of an expansive online future, the banditos, the malicious, the psychotic, will find ways of turning this wonderful tool against us, into a mechanism of deception and harm. It’s unlikely that anyone will come up with a means of putting an end to the problems this miscreants can create, as their imagination will be just as hard at work coming up with ways to make the new world a problem as other will in trying to prevent it.

For now, the best we can do is be cognizant of the opportunity for abuse, for some jerk to impersonate another for the purpose of getting his jollies, or getting even, or getting ahead. When we catch them, assuming they matter at all, they should be outed and shamed. We may not be able to rid with internet of the bad guys, but the good guys can surely use their clout to make certain that no one is fooled, and that there is a price to pay.

And heed Niki Black’s advice: Own your name before someone else does. Even if you don’t plan to twit, or whatever the next fad may be.

Different is Always The Same

No crime is good. That, by and large, is why it’s denominated a crime, with certain exceptions relating administrative convenience. Yet every once in a while, one emerges from the pack to become a “different” sort of crime, a crime of particular evil, a scourge of society. The Scourge du jour is drunk driving.

What is it about drunk driving that has caused so many to decide that it’s “different”? Is it that it’s committed by ordinary people, rather than the evil, malevolent caricature of a criminal? Is it that it’s so unpredictable, and affects those who have no reason to suspect that they will be its victims seconds later? Is it so pervasive, so ubiquitous, that it causes massively disproportionate harm? None of these things appear to be the case, while they all seem true.

It’s impossible to tell exactly what the significance of drunk driving is, mostly because the data is notoriously unreliable, having been deliberately skewed by advocacy groups like MADD, who will claim a drunk driving angle in every car accident and attribute the slightest fender bender to the gravest tragedy to demon liquor. The media and politicians certainly melodramatize every drunk driving crash, and a death in any way connected to intoxication is at least a 3 day story. It doesn’t matter if the person causing the crash was sober, and the victim barely inebriated. Drunk is drunk.

The New York Times editorial the other day lauded California for its initiative in the “war” against drunk driving:

An enlightened measure signed this month by California’s Republican governor, Arnold Schwarzenegger, will require those convicted of drunken driving — including first-time offenders — to install special devices that prevent cars from operating if the driver is drunk. The large pilot program, which covers the 14 million people living in Los Angeles, Sacramento and two other counties, adds important momentum to the national campaign by Mothers Against Drunk Driving to expand the use of the life-saving technology.

Mandating the ignition-interlock devices for all drunken-driving offenders is smart safety policy. Once installed, the vehicle will not start until the driver first blows into the device and registers an alcohol level below the legal limit. Offenders who commute to work by car can keep their jobs, but they cannot drink and drive.

Note the absence of concern over another mindless mandatory solution, the same that the enlightened Times rails against when applied to other crimes, like drugs. Yet when thrust upon 14 million people, in its zero-tolerance manner, and despite it many problems ranging from equipment failure to public shaming to shared vehicles, the Times gives it a standing ovation.

Even local prosecutors, like Nassau County, New York’s District Attorney, Kathleen Rice, has used drunk driving as her election campaign foundation. Rejecting the laws determined to be appropriate by the state Legislature, she routinely charges Murder 2 when a death results from drunk driving, claiming the extant laws inadequate to stop the scourge, apparently unaware that the crime is committed when the drunk driver turns the key, not dictated by fortuitous outcome.

In the odd-bedfellows category, the “drunk driving is different” is similarly shared by no less a staunch defender of the innocent than Chief Justice John Roberts. As Gideon at A Public Defender explains:

In an odd little dissent from the denial of cert in Virginia v. Harris, Chief Justice Roberts essentially argues that anytime police receive an anonymous tip that someone is driving drunk and they find that person, they should be able to pull them over and conduct an investigatory stop.

The imminence of the danger posed by drunk drivers exceeds that at issue in other types of cases. In a case like J. L., the police can often observe the subject of a tip and step in before actual harm occurs; with drunk driving, such a wait-and-see approach may prove fatal. Drunk driving is always dangerous, as it is occurring. This Court has in fact recognized that the dangers posed by drunk drivers are unique, frequently upholding anti-drunk-driving policies that might be constitutionally problematic in other, less exigent circumstances.

Is it true that the “imminence of danger posed by drunk drivers” is worse than others? Worse than someone with a gun pointed at another person’s head? Worse than an armed robber or carjacker? It may be true that drunk driving is always dangerous, but it fails to address the question of whether anyone is, in fact, driving drunk. Yet Chief Justice Roberts, joined by his associate Scalia, is prepared to waive away the inherent absence of credibility in the anonymous tip, long known to be a worthless cause to interfere with an individual’s constitutional right to be left alone in the absence of verifying evidence, to permit law enforcement the authority to act immediately.

Why? Because drunk driving is different.

Stopping the criminal before they do harm is a pipe dream of those who elevate security over freedom. In a perfect world, perhaps it would. No one, least of all me, wants to see harm befall anyone. But when a crime is elevated to scourge status, and takes on attributes of such massive consequence that all reason is overcome by hyperbolic visions of the demise of society.

It is a tragedy when an innocent person is struck down by a drunk driver. It is a tragedy when an innocent person is struck down by a bullet. It’s a tragedy when any person is harmed. The family of a crime victim takes no comfort in saying, “well, at least she wasn’t killed by a drunk driver.”

Some believe that there is a calculated campaign to manufacture fear of particular crimes to whip the public into a mindless frenzy, willing if not demanding that the government take away their rights to stop the scourge. This was largely accomplished during the war on drugs, and then the war on terror. Is it’s replay in the war on drunk driving nothing more than an example of a tried and true tactic, working its way through our criminal law until there’s an exception for everything?

Maybe drunk driving will be different. Different in the sense that we won’t be fooled again. Even if the New York Times and Chief Justice Roberts have already raised their glasses in a toast.

Up Next, The Joe Tacopina Show

He’s very good looking (the pictures don’t do him justice). He’s quite charming. Now, he’s getting his own show, and he didn’t even have to launch a balloon to do it. It’s just not fair.

According to this story, from the Hollywood Reporter, Scott Sternberg Productions is partnering with Weinberger Media to produce “Legal Ease,” slated to feature a New York firm called Tacopina Siegel & Turano.

The Hollywood Reporter reports that:

[T]he daily reality show will revolve around lawyers giving advice to everyday people. Stories will be shot on location, and advice will be dished out in-studio by Joseph Tacopina, head of the firm (pictured), and a panel of legal eagles.

Nothing personal toward Chad Seigel or Turano (whoever he is), but this is the Joe Tac show all the way. And it’s not just that he’s got a sweet Italian sports car, or the $6,500 Panerai watch to demonstrate Bernie Kerik’s devotion (as chronicled by my all-time favorite magazine writer, the lovely and brilliant, not to mention most eligible bachelorette, Lisa DePaulo), but that Joe Tac has something that few others possess, and no amount of trying will ever develop. Joe Tac’s a star.

It’s not that Joe is a legal philosopher, drawing those in desperate need of metaphysical healing toward the light. It’s not that Joe is considered one of the great legal intellectuals, brilliant in his knowledge of the law and nuanced understanding of jurisprudence. It’s that Joe, for better or worse, is one of those rare people who simply stand out from the crowd.

His success as a criminal defense lawyer is certainly remarkable, and he’s not afraid to charge for the pleasure (as well he should). He handles an interview with surgical skill, knowing when to turn on that boyish charm to deflect the unanswerable without infuriating the viewer. Sure he’s had some blows in his career, but no real trial lawyer doesn’t (except Gerry Spence, which is a different story altogether). You can’t begrudge a criminal defense lawyer some losers, if he’s really doing his job.

I first heard about this show about a year ago, maybe more. Overcoming my initial reaction (why don’t they want a nice older lawyer rather than this good-looking, charming kid lawyer?), it was such an obvious choice in this age of reality entertainment. Of course, Joe’s going to have to get his Crackberry surgically removed from his ear, but those are the concessions one has to make to be a star.

The last time I was with Joseph was during the ITAP program at Cardozo, when Joe and I were doing a class on advanced cross-examination. I was listening to the students intently, while Joe was whispering into this shiny thing next to his ear. It was almost 3 p.m., and I had a meeting that couldn’t be missed, so I announced that I had to leave class, but Joe would take the helm. The group turned to Joseph, still talking into the shiny thing and frowning as he noticed a dull spot on his mirror-like shoe finish, who suddenly realized that all eyes were on him. I snickered all the way out of the classroom. Hey, that’s the price of being a star.

How exactly Joe plans to carry this show while practicing law is a little unclear. There are some things a practicing lawyer does during the day that really aren’t meant for public consumption, like privately conferring with clients or developing tactics to beat the rap. While I’ve no doubt it would make for compelling television, I wonder how many clients want their soiled boxers shown on prime time. Then again, many of Joe’s clients spend their lives seeking the glare of the klieg lights, so having their legal affairs exposed to public scrutiny might not be much of a stretch.

However it happens, I have no doubt that Joe Tacopina will capture the imagination of America. Way to go, Joe. I’ll be watching.

Bernie Kerik Is A Twit

If it was up to Rudy Giuliani, he would have been our Homeland Security Czar. Instead, he’s taken up residence at the Westchester County Jail in Valhalla. No, he will not be sharing a cell with a Norse god, though he might well choose to call his cellmate Odin if he so desires. After all, Bernie Kerik might be wise to make a friend at Valhalla. He’ll need one.

So what has former NYPD Police Commissioner and dear friend to now-TV judge, and bane to the reasonable person, Jeanine Pirro, whose hubby could give Bernie some pointers on prison life, done to land his plentiful butt in jail? From the New York Daily News :

A furious Judge Stephen Robinson threw Kerik in the clink after prosecutors said the former top cop and the head of his legal defense fund engaged in a subversive campaign to sway potential jurors.

The judge blasted Kerik for ignoring his prior warnings to bar Anthony Modafferi, the head of the fund, from posting anti-prosecution rants on the Internet.

“Mr. Kerik has a toxic combination of self-minded focus and arrogance that leads him to believe that the ends justify the means, that rules that apply to all don’t apply to him in the same way, that rulings of the court are an inconvenience,” Robinson said.

Whoa. Hold on a second. While I take no issue with the judge’s assessment of Kerik’s character, he tossed him in jail for exercising his right to speak? Even worse, for his supporter, Modafferi, exercising his right to express his views? Since when does Bernie exercise mind control over another human being?

In recent weeks, prosecutors discovered that Modafferi wrote anti-prosecution screeds on a Web site linked to Kerik’s defense fund site.

They said Kerik was also using Twitter to refer supporters to Modafferi’s site.

In one entry the judge quoted, Modafferi wrote, “In a heavy-handed attempt the government gave Kerik an ultimatum, plead or the government will do everything in its power to destroy Kerik and his family.”

So what? Bernie twitted. It’s not like he’s Rex7, for crying out loud. And even if he was, what of his right to defend himself against the plethora of accusations against him.

What’s curious is the judge’s framing the issue in terms of Kerik’s failure to believe that the rules apply to him. These would be the same rules that permit the United States Attorneys office to issue press releases about how they have captured another heinous criminal on the verge of destroying our nation? It seems to me that, this time at least, Bernie’s playing it exactly as the rulebook says. At least if the rulebook is the U.S. Attorneys’ Manual.

Of course, the invocation of twitter is a new wrinkle, and one that demands further scrutiny. As I’ve explained often, judges tend not to be early adapters, Alex Kozinski notwithstanding. Judge Robinson apparently viewed Bernie’s use of twitter as an affront to the dignity of the court. While it may be an affront to something, like sound judgment for someone who doesn’t want to be taken as a total goofball, Bernie was a twitter n00b.

With a total of 232 followers, and 165 twits before falling silent from the bowels of Valhalla, Bernie’s twitting wouldn’t have impacted a flea. His followers, aside from some lovely young ladies with dorm cams, are what you would expect, the castraltos in the choir singing their sycophantic Hosannas. Who cares what he twits to them? They’re gonna love Bernie no matter what, and they certainly aren’t going to find a seat on his jury. Let’s get real. I know it’s hard to believe that Bernie has fans, but even Ted Bundy had his supporters. We’re a perverse species, you know.

It would be far more compelling if Bernie had a list of the venire and was knocking, door by door, to meet and greet. But to jail Bernie because of the “toxic” combo of his twitting, and Anthony Modafferi ranting online, reflects either a grossly exaggerated understanding of the power of the internet, or a refutation of free speech. There are a lot of people who believe that the government uses its overwhelming might to coerce guilty pleas at the expense of the destruction of a defendant and his family. This isn’t a novel concept, and finds some very rational support amongst a particular universe of folks who have had the pleasure of attracting the government’s attention.

As should be clear, I’m not Bernie Kerik’s biggest fan. Indeed, it might reasonably be said that I will ridicule him at the drop of a hat. But even a mutt like Kerik is entitled to exercise his rights without fear of being jailed. Certainly a third party to the proceeding, Modafferi, no matter how misguided his allegiance, can speak his mind on any darn subject he wants, including the persecution of Bernie Kerik if that’s his view.

But most of all, if we’re going to raise the issue of the rulebook as a justification, then instead of calling his roommate Odin, Bernie Kerik should refer to him by his formal title, Assistant United States Attorney.

Former AG Mukasey: Courts Aren’t Up To The Task

Sitting on the bench at 500 Pearl Street, a District Court judge about to retire to the pasture of Biglaw equity, Michael Mukasey showed little reluctance to believe in the power of the federal court system to handle whatever was thrown at it. Sitting as former Attorney General of the United States, even if only for a brief spell between a disgraced predecessor and new administration, he has a different view.

From his op-ed in the Wall Street Journal, Mukasey espouses a position that will shock those who knew him once as fairly reasonable, level-headed jurist.

The challenges of a terrorism trial are overwhelming. To maintain the security of the courthouse and the jail facilities where defendants are housed, deputy U.S. marshals must be recruited from other jurisdictions; jurors must be selected anonymously and escorted to and from the courthouse under armed guard; and judges who preside over such cases often need protection as well. All such measures burden an already overloaded justice system and interfere with the handling of other cases, both criminal and civil.

Though unsaid, the counterpoint to the overwhelming difficulties in trying cases of alleged terrorism in the courts of the United States is, of course, nothing less than our most basic law, the Constitution. The bottom line is whether the rules by which Americans determine guilt or lack thereof give way in the face of difficulties. What aspects of our legal system crumble in the face of terrorism trials?

deputy U.S. marshals must be recruited from other jurisdictions
jurors must be selected anonymously and escorted to and from the courthouse under armed guard
judges who preside over such cases often need protection as well

In other words, the trials present some logistical issues relative to security. To a former Attorney General, the foundation of our legal system must fall in the face of a few logistical issues, oddly the same ones that are raised by a variety of prosecutions ordinarily handled in federal courts without so much as a blink, such as organized crime, major drug kingpin cases and the occasional Latin American dictator. Yet when it comes to alleged terrorists, the courts can’t handle it.

All such measures burden an already overloaded justice system and interfere with the handling of other cases, both criminal and civil.

It’s true that the federal court system is overburdened, largely because of low rent marijuana and basic gun cases that have been funneled from state courts to federal as Congress criminalizes the most banal of crimes lest the local lawmakers get to take all the credit for being tough and saving humanity from the scourge of pot smoking in Washington Square Park. But Judge Mukasey makes no call for the end to overcriminalization of state offenses to clear the federal court dockets so that the judges can handle the big stuff.

Moreover, there is every reason to believe that the places of both trial and confinement for such defendants would become attractive targets for others intent on creating mayhem, whether it be terrorists intent on inflicting casualties on the local population, or lawyers intent on filing waves of lawsuits over issues as diverse as whether those captured in combat must be charged with crimes or released, or the conditions of confinement for all prisoners, whether convicted or not.

Two forms of terror, both equally threatening the sanctity of our way of life. Both revolve around courthouses attracting terrorists, one type wearing the garb of Al Qaeda and the other wearing three-piece suits. One might propel rockets toward the fortress-like structure like structure. The other will deluge it under a “wave” of 20 pound lawyer bond.

Apparently, Judge Mukasey lacks faith in our nation’s ability to protect its courthouse. As attorney general, he may have seen information that the rest of us haven’t, and possess a firmer idea of the limits of law enforcement. Of course, if someone is intent on wreaking havoc on American soil, there are shopping malls across the country that would seem far better targets if the goal is to disrupt our way of life. If we can’t protect a courthouse, then there is no hope for the holiday shopping season.

But Mukasey’s disdain for law, as flagrantly shown by his fear of lawyers doing lawyerly-type stuff, is the most disheartening allegation coming from someone who, for a brief period of time, was the top lawyer in the United States. Does a man entrusted with defending the Constitution really harbor such overt hatred of it? As he complains about a juror who, when pushed to the limit, found himself unable to impose death, was AG Mukasey unable to believe sufficiently in the viability of our Constitution to protect it, as his oath demanded?

Moreover, it appears likely that certain charges could not be presented in a civilian court because the proof that would have to be offered could, if publicly disclosed, compromise sources and methods of intelligence gathering. The military commissions regimen established for use at Guantanamo was designed with such considerations in mind. It provided a way of handling classified information so as to make it available to a defendant’s counsel while preserving confidentiality. The courtroom facility at Guantanamo was constructed, at a cost of millions of dollars, specifically to accommodate the handling of classified information and the heightened security needs of a trial of such defendants.

What happens to a person in the hallways of power when they are told the secrets of a nation, they are made an “insider” to the nasty truths that the elite believe save the ignorant groundlings from themselves? To call the secret courtroom of Guantanamo a star chamber is trite. To elevate it to a necessity because it was built at a cost of millions of dollars is backward; people of like-mind to Mukasey threw away money to build their secret courtroom without asking Americans if they minded the purchase of a few more $300 toilet seats. If only they paid our executive branch officials a little more, we could recoup the waste from their pensions.

Rarely has a former high government official, no longer in need of toeing the party line to keep his seat at the state dinner table, shown so little belief in his Country. Even more insulting is how trivial, how utterly insignificant, the reasoning behind his disregard for the basic tenets that justify his Country’s existence. What’s next, openly disavowing the Bill of Rights because it’s raining outside?

There is much to question about the former administration’s belief that the United States of America is worthy, based upon its fundamental philosophy, of the claims of greatness used to justify its disregard of our basic freedoms and rights. But I knew Michael Mukasey as a judge sitting in a black robe at 500 Pearl Street. I thought well of him, thought that he was a man of integrity. I never would have believed that he would sell out the Constitution to save a few pennies, or because we would have to pay some deputy marshals overtime.

Was this the same Michael Mukasey who ruled on my cases in the Southern District of New York? Did he secretly hate the Constitution this much while I trusted him to do his best to preserve my clients’ rights? If so, my clients were cheated, and they deserve another shot before a judge who believes in the American system of criminal justice.

When You’re Ahead, Shut Up

From Anne Reed, jury “thought leader” extraordinaire and voodoo high priestess, comes a story of such abject stupidity that it can’t go unnoticed. From the Whidbey News Times (yes, that Whidbey),

A run-of-the-mill trial turned into something unusual Monday morning. Sylvester rushed to court at about 11 a.m. after the 12-member jury reported that they had reached a verdict. She was crying and visibly shaking as she waited for the jury to file in with their decision.

Finally, Judge Alan Hancock read the verdict: “not guilty.” Sylvester and her supporters in the audience cried tears of joy, but the relief was short lived.

Hancock polled the jury, as Sylvester’s attorney Charles Hamilton had requested. The confusion started immediately when the first juror said she did not agree with the verdict.

In the ordinary course of affairs, the defense lawyer will request that the judge poll the jury following the verdict. That’s because, in the ordinary course of affairs, the verdict is guilty. By polling the jury, with your eyes firmly fixed on those of each juror, staring intently and transmitting your telepathic message to speak out, tell the court that you don’t agree with the verdict, let the world know that the verdict is wrong, you give the defendant one final chance to break free of the conviction. No, it doesn’t work very often, but hope springs eternal.

But here, the verdict was “not guilty.” That’s “not guilty,” as in case closed, defense wins, everybody gets to go home and celebrate. Not . . . frigging . . . guilty.

Dear Mr. Hamilton, were you not listening? Was someone distracting you at the very moment the forewoman uttered the word “not”? Did you suffer a sudden brain fart, fearful of missing your one chance to get the jury to change its mind, and make the knee-jerk request to poll the jury. What were you thinking?

I’ve got to believe that Hamilton realized the error of his request within seconds. Even as the judge inquired, Hamilton thought to himself, “oh my God, what have I done?” I must believe this because the alternative, that he knew full well that he had achieved an acquittal and nonetheless sought to have the jury polled is, in the scheme of being a trial lawyer, the stupidest thing one could do. No folks, it doesn’t get any dumber than this.

Lest I point out the obvious without closure, after the forewoman admitted her discomfort with the verdict, the jury went back to deliberations and ultimately convicted the defendant of the lowest count. Yes, Hamilton seized defeat from the jaws of victory.

Afterward, Charles Hamilton had this to say:

“The jury consistently have misunderstood the necessity of a unanimous verdict,” Hamilton said in court, clearly frustrated.

It appears that stupidity reached epidemic proportions in that courtroom. Hamilton didn’t publicly admit that his client was convicted because her lawyer was a bonehead, He should have.

Don’t Try This At Home

Via Doug Berman, a Lexington, Kentucky man was sentenced to 15 years for possession of massive quantities of child pornography. In addition, his home was forfeited. From the Lexington Herald-Leader :

Joseph Robert Leitner, 62, pleaded guilty in June to one charge of receiving child pornography. He admitted collecting child pornography for years and had computers and CDs that contained more than 30,000 images of child pornography, some involving children as young as 6, according to his plea agreement. There were approximately 100 CDs and several computers seized during the search of Leitner’s residence in June 2008.

Let’s be clear. The conduct involves is sickening. If ever the rationale that the perverts who obtain kiddie porn provide the impetus for those who create it and are deserving of severe punishment as deterrence, it applies here. I have no sympathy for Leitner. I wouldn’t defend Leitner. I’m extremely happy that they found him, prosecuted him and that he will be removed from society for a lengthy period of time.

Additional claims were made of Leitner having molested children years ago, one as young as 3. I hope his new friends in prison know about these claims.

But that wasn’t where the punishment ended.

The federal government will also seize Leitner’s home at 417 Cochran Road because of the high volume of images and the length of time Leitner used his home to download and view child pornography.

Assistant U.S. Attorney Hydee R. Hawkins, who prosecuted Leitner, said the sentence sends a message to child predators that “we are going to take the very place you used to exploit children.”

Given how I view the crimes involved here, it might be surprising that I’m not in favor of any and every punishment that could conceivably be imposed. Indeed, harming children brings up images of the proper application of the Iron Maiden in the back of my mind. It’s an offense I find intolerable, and punishments that I would never otherwise consider suddenly make much more sense.

While I don’t exactly feel badly for Leitner at the loss of his Chevy Chase home, it’s enormously troubling because of its lack of any rational connection to the offense. If they can do it here, and the “very place. . . used to exploit children” rationale is allowed to prevail, then nothing is safe from forfeiture. That the game starts with someone like Leitner doesn’t mean it ends there. The slippery rationale has the potential to slide right down the slope to any offense.

True, he viewed his computer in his home. He stored the CDs with thousand of images, enough to make a normal person vomit forever, in his home. There is, at the most superficial level, a connection between the home and the offense. But that’s not the issue, and it shouldn’t be the issue.

Forfeiture is authorized for two categories of assets: the proceeds of a crime and the instrumentality of a crime. Leitner’s home obviously wasn’t the proceeds of a crime, leaving only the instrumentality theory to apply. In this regard, it means that the property was instrumental in accomplishing a goal necessary for the commission of the crime. It must be integrally related to the crime itself, a tool needed for the crime to occur.

As the AUSA stated, the connection between the crime and Leitner’s home was that it was the “very place” used to keep and view the child pornography. The validity of this arguments is little different than denying Leitner air by arguing that it was the “very air” he breathed as he viewed this horrific images. The argument is rhetorical, and can be said about any item of physical property that can be theoretically connected to the life of a defendant. What about the “very clothes” he wore as he looked at these images? All true, but not at all instrumental.

Fear forfeiture. It’s almost invariably a penalty disproportionate to crime, aside from its methodology that denies it being a penalty at all and depriving the facial owner the basic rights necessary to challenge it. It’s just a total nightmare from a due process perspective, and possibly the most offensive abuse of the law that Congress has dreamed up. This much is a constant.

But fear forfeiture when it strays beyond the instrumentality even more. When this becomes acceptable, there is no limit to what the government can do to, and take from, anyone. And don’t be surprised when the over-reaching occurs in a case as heinous as Leitner’s. It’s always easier to make the leap to irrational application in the ugly, horrible case, with the least sympathetic of defendants.

It’s not about feeling that Leitner doesn’t deserve to lose his home. It’s about the next guy, whose offense has nothing to do with child pornography, whose home will be forfeited with no greater justification than here. Screw Leitner, but fear forfeiture.