Monthly Archives: October 2009

The 9/11 Exception To Gant

Question:  What’s a court to do when a search clearly and fundamentally violates the 4th Amendment’s prohibition, and falls squarely within the confines of a Supreme Court decision rendered just in the last term?

Answer:  Invent a new exception.

Eastern District Judge Nicholas G. Garaufis was not going to hold that police were required to place a backpack in their patrol car without knowing what was inside it.  The problem was that by the time the police searched the backpack, the defendant had been subdued and taken into custody.  The backpack was no longer within his reach, and there was no possibility that the defendant could take any action with it. Judge Garaufis had a problem in People v. Morillo.

While the Magistrate Judge (who conducted the suppression hearing) recognized that this case fell within the Supreme Court’s Gant,and the 2d Circuit’s Gorski, decision,


However, the magistrate judge asserted a different grounds for the search: There was “a reasonable risk to the officers that they were transporting something in their vehicle that could injure the handler.

Nothing about the contents of the bag suggested that contained therein was anything potentially harmful to the officers.  The problem was that they had no idea what, if anything, was in the bag.  Thus, the total absence of information of what the defendant might possess gave rise to a wholesale “reasonable risk” of harm.

And what did Judge Garaufis think of this “ignorance is bliss approach?”


Specifically, Eastern District Judge Nicholas G. Garaufis held that, in the post-9/11 world, the danger a backpack might pose while in the trunk of a police car justified an officer’s search of an arrestee’s bag, even though it was no longer within the defendant’s reach.

“The circumstances of this case fit squarely into this justification for conducting a warrantless search of luggage,” he concluded. “Morillo’s furtive and evasive behavior gave the officers reason to believe he was hiding something potentially dangerous in his backpack at the time of his arrest.”

The judge added, “Officer [Patrick] Finnegan testified that ‘I need to know what’s…in that backpack and also what’s going in my car as I transport it to the stationhouse.’ According to Officer Finnegan, this was necessary for the safety of himself, his partner, the prisoner and the people around.”
The echo of “9/11 changes everything” still rings rather loudly around New York, as it likely does elsewhere as well.  Before that, judges might have been reluctant, in the face of an information void, to permit the blind assumption that unknown contents of a backpack have such a strong potential to be harmful that they are, even when distant from the reach of a defendant, subject to warrantless search. 

What’s fascinating about this approach is that it gives police officers greater authority to search because of ignorance than they would have if they possessed information.  For example, if they were stopping the defendant because they believed he had just engaged in a narcotics sale, and the backpack contained narcotics, they could not search.  No way, no how.  Why?  Because the drugs weren’t a potential threat to their safety. 

But in this case, the police sought to stop the defendant for committing the heinous offense of riding a bicycle on the sidewalk, whereupon the defendant fled and a chase ensued.  They had no information that the defendant was violent, or possessed any contraband or weapon.  For those who ask, “well then, why would he flee,” it’s hardly unusual when a person is an illegal immigrant, or has an open warrant for smoking on the subway, to try to get away from the cops.  It doesn’t make them good people, but it doesn’t make them vicious criminals either.

Knowing nothing about the suspect beyond that he’s a bicycle offender who doesn’t want to get pinched, the court found it reasonable to fear that the backpack presented a danger to the police.  Ignorance= warrant exception, a remarkable equation.

So much for Gant. We’re back to “9/11 changes everything.”  Who needs information, or a basis to believe, anymore, when total ignorance vitiates all the rules.

H/T The Blind Guy

Meet the Neighbor

While quite a few people stop by Simple Justice to see whether there’s anything here worth a few minutes of their time, some have become regular readers and commenters, offering much to the mix of interest.  Some are lawyers, like me, who either want to add their two cents or take me to task for what I’ve written.  But others are people of a higher order, thinkers extraordinaire of far greater accomplishment than just working in the trenches of the courthouse.  It’s time for you to meet one.

Jdog is the name he uses most often when commenting here, though regulars know him to be Joel Rosenberg.  Yes, he’s that Joel Rosenberg, renown author of 23 fiction novels, gun enthusiast and certified firearms instructor, supporter of good cops and irascible critic of police impropriety.  For a hack writer like me to have someone of such stature spend a few minutes of his time reading my drivel is an immense honor.

Joel makes no bones about his not being a “law talking guy,” but on the other hand offers insights far beyond the common man.  Joel’s insights have provided a master class in understanding where the law succeeds, and fails miserably.  And they are invariably presented with wit and humor that challenges the reader far beyond the facial understanding of his words.  Don’t be fooled by his self-effacing manner, his backdoor “I dunno’s.”  He knows. 

So let’s get to know Jdog.



The very embodiment of the warrier-philosopher, with a fashion sense all his own, Jdog has done it all.



Joel Rosenberg was born in Winnipeg, Manitoba, Canada, in 1954 and was raised in eastern North Dakota and northern Connecticut. He attended the University of Connecticut, where he met and married Felicia Herman (commonly referred to as SWMBO).

Joel’s occupations, before settling down to writing full-time, have run the usual gamut, including driving a truck, caring for the institutionalized retarded blind, bookkeeping, gambling, motel desk-clerking, and a two-week stint of passing himself off as a head chef.

Joel’s first sale, an op-ed piece favoring nuclear power, was published in The New York Times. His stories have appeared in Isaac Asimov’s Science Fiction Magazine, Perpetual Light, Amazing Science Fiction Stories, and TSR’s The Dragon. His novels have been published by Roc, Avon, Berkley, Tor and Baen Books. He is also the author of Everything You Need to Know About (Legally) Carrying a Handgun In Minnesota and is an A.A.C.F.I and N.R.A certified firearms instructor.

Joel’s hobbies include backgammon, poker, bridge, as well as cooking; his broiled butterfly leg of lamb has to be tasted to be believed.

Not to be limited by the published tome, Joel is a contributor to the brilliant blog, WindyPundit, maintains his LiveJournal, a forum at his Twin Cities Carry website, and, lest anybody mistakenly think Joel takes himself too seriously, two websites that show his kinder, gentler side: I can haz gun permit and Jew with a Gun : 

 



 





And if that wasn’t enough, Joel has dedicated his spare time to the special use training of small animals, making both safety and that special sense of unquestioning devotion available to everyone, no matter what their disability.

While writing this blawg may be a matter of personal pride and pleasure for me, having a regular reader and commenter like Joel Rosenberg brings a dimension of thoughtfulness, intelligence and proper firearms handling that makes this effort truly worthwhile.

Thanks for hanging out here, Jdog, and for all you bring to the conversation.

Never Smear Your Own Client, Not Even In Death

My initial reaction was “why?”  Why would he do this?  Why would he say this?  Of the many things that have passed my consciousness over the years, few are as inexplicable as this.  Like anyone else, it caused me to strain to find an answer, but nothing came.

I’m talking about the interview by Anderson Cooper of David Martin, the attorney who tried the Cameron Todd Willingham case, which Mark Bennett posted at Defending People.  Given the intense pressure that arose from the overwhelming post mortem evidence that Willingham was innocent, coupled with the additional pressure arising from Texas Governor Rick Perry’s scuttling of the his Forensic Science Commission’s personnel on the eve of its hearings, there was certainly an abundance of interest in what happened at trial.

But as far as I’ve heard, no one has suggested that it was Martin’s fault that Willingham was convicted and sentenced to death.  Maybe I’m not close enough to the local scuttlebutt to know what’s being whispered around the ranch, but no one has openly challenged Martin as a flaming incompetent, personally responsible for the death of a human being.

So why would Martin do this?



Let’s assume, for the sake of argument, that Martin has no grossly improper motive, like he’s been promised a judgeship by Perry if he does everything in his power to undermine the evidence of Willingham’s innocence.  If Martin truly believes what he’s saying to be true, his statements are the most irresponsible, unethical, improper I have ever heard from the mouth of a criminal defense lawyer.  Outrageously wrong. Utterly disgraceful. 

He may not be tainted by the fact of Willingham’s conviction, but he should be forever tainted by his overt effort to argue the guilt of his client. Worst still, if that’s possible, is his apparent use of confidential information to bolster his claim.  Willingham may be dead, but his privileged communications are buried with him.  They aren’t Martin’s to reveal at his convenience.

Mom’s old adage, if you have nothing nice to say, say nothing at all, applies.  Martin is under no duty to come forward to argue Willingham’s innocence, especially if he doesn’t believe it to be true.  But under no circumstances should he come forward to argue Willingham’s guilt.  Don’t want to argue innocence?  Fine, then stay on the ranch and off TV.  Keep your mouth shut and say nothing. That’s a perfectly reasonable thing to do.  

Bennett ponders whether Martin was enjoying his 15 minutes of fame, his opportunity to go on Anderson Cooper and be the Big Man.  It’s clear from the interview that Martin is inadept at television interviews, given his slow, long-winded, pedantic speech pattern, refusal to give the floor to the host and background muttering of “this is absurd.”  That would explain why Martin, with nothing good to say about his client, agreed to go on air, but it offers no explanation for his egregious breach of trust. 

There is no ethical duty of perpetual loyalty to one’s client.  A lawyer need not argue the client’s innocence after his representation has ended.  But that doesn’t mean that the alternative is to smear his client, to argue his guilt, to expose his confidences, either.  If Martin so desperately wanted his moment in the sun, then his options were limited to speaking in his client’s best interest or discussing issues surrounding the present circumstances.  There was no option of exposing communications, investigations, thoughts that existed solely within the defense.  Martin had no right to offer that up in exchange for the opportunity to go on TV in his Texas rancher hat and tout himself at the expense of his client.

If I was forced to explain Martin, the best I could offer is that he now fears that Willingham’s death is on his shoulders for his failure as a lawyer to have adequately represented his client.  Even though the fingers aren’t point at him, he believes in the back of his mind that he failed miserably.  Perhaps he anticipates that eventually the fingers will come around to him, point at him, blame him, for his incompetence.  Perhaps he knows something we don’t, that there’s good reason for the fingers to point at him.  Perhaps he is responsible for the death of Cameron Todd Willingham.  This is merely his pre-emptive way of deflecting responsibility.

Even now, Martin’s description of the “scientific method” the defense team used to determine the accuracy of the arson claim rings ridiculous.  They bought lighter fluid, burned a carpet, and it looked just like the carpet in Willingham’s home?  That’s what he claims is proof that his client was guilty?  Now that’s absurd.

While no one can make a criminal defense lawyer believe in the innocence of his client, or chose to argue it after his representation has ended, he can be taken to task for doing the unthinkable, the outrageous and the facially wrong.  David Martin’s comments are a disgrace of the lowest order.  And, for good measure, just as criminal defense lawyers aren’t expected to believe in the innocence of every client, they similarly aren’t endowed with the superhuman ability to know when a person who professes innocence is in fact guilty. 

I may lack an explanation for what drove David Martin to condemn his own client publicly, particularly in the face of overwhelming evidence of innocence, but I have no doubt that his statements on Anderson Cooper 360 are some of the most despicable I’ve ever heard from the mouth of a lawyer.  Never, but never, smear your own client. 

Death to the States, Federalize the Bar?

It’s inexplicable how two grown-ups slipped in to the 24 Hours of Rebels project, but both Bob Ambrogi of Lawsites (and about 20 other things) and Bruce McEwen of Adam Smith, Esq. have offered essays with a provocative proposition having nothing to do with gaining twitter followers.  There’s gonna be hell to pay in the ABA Journal back office for this screw-up.

The proposition is simple, clear and radical: It’s time for the limitations of state bar admissions to come to an end.

From Ambrogi’s essay :


It no longer makes sense to regulate the practice of law based solely on a lawyer’s geographic location. In fact, not only does geography not make sense as a basis for regulation, but it is irrelevant.
Bob goes on to provide a list of 6 specific reasons why state bar admission has outlived its usefulness.



• More and more, law is federal. The Constitution and federal law provide the legal framework for broad swaths of our day-to-day lives, from business to communications, from employment to the environment.


• More and more, law is standardized. Even where the law is left to the states, laws on similar topics tend to mirror each other. Often, state laws are based on uniform drafts written by national bodies.


• More and more, lawyers are specialists. One of the arcane rules governing lawyers is that they are not supposed to call themselves specialists or experts. But most lawyers are, whether in a single field of practice or several.


• Know-how trumps location any day. The lawyer who is an expert in a given field but lives in a different state is better prepared to represent a client in that field than is the non-expert who happens to live in the same state.


• State-specific savvy is a myth. The rationale for state bar admission is that lawyers know their state’s laws. The fact is, they know only the laws they need to know and conduct research to figure out the rest. When a lawyer is confronted with a legal question, it makes little difference in solving it whether the answer is to be found in the law of the lawyer’s home state, another state or in federal statutes or cases.


• Lawyers are not stupid. Some lawyers may be darned fools, but few made it through law school without some brains in their heads. What matters is not the geographic location of the client’s problem, but the lawyer’s ability to analyze and address the problem.



MacEwen’s view is less based upon the value of state specific regulation than the anti-competitive forces of geographic limitations:


Where are you admitted? Why on earth should that matter?

Why, for that matter, should it even be a question with an answer? Shouldn’t we be admitted to practice “in the United States?” (“In the EU?”) Do our clients care? Only, I would suggest, to the extent that they want the freedom to call on the best of us in New York, California, D.C., London, Hong Kong, and wherever else it might come in handy for them.

Take this a step farther: Why should law firms be subject to the jurisdiction of the state bar wherever they happen to have an office? If Amazon can choose to be headquartered in Seattle, but can also choose to be incorporated in Delaware, and does business—remind me, where again does Amazon “do business”?—why shouldn’t law firms enjoy the same benefits?
Bruce, an unabashed “card-carrying capitalist,” takes the pragmatic road, that the protective guild aspect of state bar admissions does nothing more than keep out the competition to the advantage of the locals.

In one sense, I can’t imagine any lawyer who wouldn’t love to be free of the yoke of state bar admissions.  When sought for a case in a neighboring state, whether a thousand miles away or just down the street, the primary constraint is that of admission.  While I’ve represented clients in courts across the country, I am, as far as the bar is concerned, a New York lawyer, because that’s what it says on the fancy certificate hanging on my wall.  Am I unqualified to practice elsewhere?  Hardly, but I am compelled to retain local counsel to introduce me to the court for my admission pro hac vice.

Truth is, however, that in flying around the country to try cases, local counsel has proven invaluable to me.  Courts have their own ways, from how the documents are prepared (including truly stupid things like where one puts one’s address on the notice of motion), to how one obtains a routine adjournment.  These aren’t significant or substantive differences, but as one tries to navigate the way through courts in other jurisdictions, local talent can be a huge time saver and important way to avoid creating undesired antagonism.  Local courts have little tolerance for outsiders who don’t do things their way.

It would be far more understandable if the practice variations were limited to state courts, but they exist in federal court as well.  It never ceases to amaze me how different the quirks of local practice can be from district to district, circuit to circuit.  Between local time rules, and just the ordinary routine taken for granted in any particular district, one can immediately tell who’s a regular and who’s a carpet-bagger.  Mind you, the carpet-bagger may be a top flight lawyer, and perhaps brings a freedom from the local “ordinary injustice” that tends to infect regular practitioners, but it’s clear that “he’s not from around here.”

And while the bulk of my practice is federal, state court practice can be wildly different from jurisdiction to jurisdiction.  In criminal law, as well as some other practice areas like personal injury, the vast majority of cases are handled at the state rather than federal level.  Bob Ambrogi’s argument, that the law has largely become federalized, doesn’t bear out.  It’s very much a local matter, and a comprehensive understanding of a state’s statutory and caselaw is critical to competent representation.

That doesn’t mean that the out-of-towner can’t learn the local law.  Learning the law isn’t all that difficult, assuming one is willing to put in the time to do the legwork, but what are the chances that lawyers from other states would put in the effort?  Far too many can’t be bothered to achieve mastery of their own state’s law, no less that of others.  They’re too busy working on their marketing strategies.

The idea that lawyers should be able to break into jurisdictions other than their own to surmount the anti-competitive nature of state law guilds, and that these wild swings in local ways and laws should be more moderate, is sound.  My problem is that it’s simply not the case.  It’s difficult to imagine state lawmakers giving up their authority, no duty, to enact the laws they believe are proper for their home states in order to achieve some sort of nationalized homogenization.  And it’s difficult to believe that attorneys will take the extra time necessary to gain a sufficient mastery of local law to be competent, no less excellent, in their representation. 

On the federal level, however, it seems that the notion has far longer legs than for state court.  There is still the inexplicable local practice disparities, which could be standardized across the country given that there’s no rational justification for each district to play by its own set of rules.  Sure, the locals would gripe about change, and each would believe that their local ways are better than whatever would replace it, but standardization across federal districts and circuits would ultimately inure to everyone’s benefit.

But I see no way to overcome the huge risks to clients at the state level.  As much as I might love to be free of the chains that bind me to New York, and I could easily claim that I would never represent a client in another state without first putting in the effort to become fully familiar with the applicable laws, the monopoly afforded lawyers is dependent on the state’s confidence that the individual is already, not conditionally, competent to take on the responsibility of appearing in its court.  While this proposition itself raises doubts, it is magnified many fold if lawyers were left to their own devices when representing clients in state courts.

So should we expect some sort of national bar admission to be the future of the legal profession?  Not only would I not expect it, but I wouldn’t, as someone who believes in a lawyer’s duty to competently represent his clients, want it, no matter how much it might benefit me personally. 

We aren’t ready for national bar admission.  We don’t deserve it.  Maybe someday we will, but not now.

Monserrate Beats The Felony

Whether you call it the elevation of law over common sense, or just excellent tactics, rookie New York State Senator Hiram Monserrate will neither lose his seat nor go to prison for the alleged slashing of his girlfriend, Karla Giraldo. 

Queens Supreme Court Justice William Erlbaum’s bench verdict acquitted Monserrate of felony assault for the slashing, and convicted him only of the reckless misdemeanor assault for pulling her out of the building to take her to the hospital, as appeared on the building security tape.

Clearly, the local National Organization for Women won’t be happy about the verdict, New Yorkers who blame Monserrate for tying up the Senate with his flip-flopping shenanigans would have preferred his ouster, automatic upon a felony conviction.  For those who believe that domestic violence is different than other crimes, and should not be subject to the same depth of scrutiny and proof, this acquittal is a nightmare.  So was Erlbaum right?

From Newsday :



In his decision Erlbaum said there wasn’t enough evidence to convict the freshman senator of a felony. He said the only people who know what happened in Monserrate’s apartment that night are “Giraldo and the defendant himself.”

The judge, referring to the security video as evidence enough to convict Monserrate of misdemeanor assault, said Giraldo already was in a “weakened state” from an eye injury and Monserrate was reckless in “pulling her, pushing her as she’s fighting to stay” in the building.

“She is scared for her well-being,” Erlbaum said.
Justice Erlbaum refused to do what so many expected, wanted him to do.  He refused to accept the “common sense” claim that the only two parties present in the room where the slashing occurred, should be ignored and that argument supplant evidence.  True, the argument wasn’t without support, based upon the testimony that Giraldo told the ER doc that Monserrate deliberately slashed her, but Giraldo similarly testified in court that it was an accident.  Was the judge to ignore the live, examined and cross-examined testimony if favor of the claim that suited the more salacious, more emotional, maybe even more credible, view?

Justice Erlbaum’s decision was absolutely perfect.  As a judge, performing his function without taint of the prejudice that makes us want to believe that Monserrate did the dirty deed and Giraldo has changed her story to cover his sorry butt, he followed the evidence and the law, and it could lead nowhere but to acquittal of the felony assault.  No matter how much more visceral satisfaction might have been achieved by adopting the prosecution’s position, it lacked evidentiary support, and certainly fell miles shy of beyond a reasonable doubt.  An honest, capable judge could do no less than acquit.

Mind you, this doesn’t make Hiram Monserrate a good guy, and certainly hasn’t cleared him of the stigma of being a girlfriend slasher.  By no stretch did he prove himself innocent, and the video of his manhandling of Giraldo in the hallways afterward isn’t going to win him a seat on Dream Date.  But trials aren’t about proving innocence, but proving guilt.  Monserrate wasn’t on trial; the State was.  And the State lost, and deserved to lose.

All this raises the question of whether the same outcome could have been achieved had Monserrate been judged by a jury.  It’s almost certain that a jury would have convicted Monserrate of the felony assault, and that the decision by Joe Tacopina, Monserrate’s defense lawyer, to waive a jury was the difference between a conviction and acquittal. 

When Joe Tac decided to go bench, it was a huge risk, The defendant only needs to persuade one of 12 that guilt isn’t proven to hang a jury, but when there is only one factfinder, there will be a verdict.  And when so much attention is focused on a case, and pressure brought to bear on that one factfinder, the defendant so unsympathetic, the defense story so far-fetched and the injury so clear, the forces pushing for conviction are almost palpable.

But these are all influences of assumption and prejudice, the types of influences that juries seem incapable of ignoring when they are admonished to base its verdict on the evidence alone, and measure it against the standard of beyond a reasonable doubt.  There aren’t many people who believe, in their hearts, that Monserrate didn’t slash Karla Giraldo that night, but trials aren’t about what’s going on in your heart, but in your head. 

The acquittal on felony assault charges is both a triumph of law and a vindication of tactics.  What this unfortunately suggests is that the beloved jury, those 12 Good Men and True, would have been incapable of ignoring their “common sense” and would have convicted Hiram Monserrate despite the failure of the evidence to prove guilt.

Pick Your Burdens Carefully

The Supreme Court heard oral argument yesterday in Padilla v. Kentucky, a case in which the defendant claimed that he was denied effective assistance of counsel because his lawyer totally blew it by advising him that his plea to felony marijuana possession would not result in his deportation.  Of course, that was totally wrong.

Ever since America decided that it had enough, rather than embraced, immigrants, strict bases for deportation have served to thin the herd without mercy or reason.  A guy like Padilla, who was a permanent resident who had lived in the United States for 40 years and served in Vietnam, was nonetheless subject to the collateral consequence of deportation, without any chance of waiver, by his plea to an “aggravated felony.”  Every felony is aggravating, by the way.

According to the New York Times, the justices, even Alito, were sympathetic to Padilla’s plight, recognizing that deportation, on top of whatever punishment was due for the crime itself, was incredibly harsh given his circumstances.  The argument centered on whether his lawyer, who clearly gave the wrong advice, had denied Padilla effective assistance.  The opposition is that the erroneous advice was on a collateral matter, not the criminal representation itself, and hence shouldn’t be a basis to vacate the plea.

This has been a long-standing issue, and one that has been batted back and forth within the criminal defense bar.  The problem arises from the fact that the criminal conviction stemming from a plea triggers immigration consequences separate from criminal consequences.  Criminal defense lawyers aren’t immigration lawyers, and often lack the background to provide adequate advice on the impact of a criminal plea on immigration status.  On the other hand, it is definitely a significant consequence, sometimes more so than the criminal punishment itself, and it’s absolutely reasonable to expect a person making a life-changing decision to have all necessary information about the consequences of his actions before he decides.

The problem this has long posed for me is whether the burden of informing a defendant of the consequences of his plea should ultimately fall on the defense lawyer or the court.  During the plea allocution, it’s incumbent upon the court to inform the defendant of his sentence.  Every aspect of his sentence.  But not of the immigration consequences of the plea.  This is because it’s not deemed a part of the sentence, but a collateral consequences.  This reflects a bit of legislative sleight of hand, calling a direct consequence of monumental proportions civil and collateral, even though it is directly and inevitably triggered by the plea.

The best answer any criminal defense lawyer can give to the question is “probably”.  There are some occasional exceptions to the rule, and sometimes defendants fall into the cracks in the immigration system, where no one will come after them for deportation, but they can still get caught if they leave the country and try to re-enter.  By and large, though, the answer is that deportation is the secret punishment on top of the sentence they bargained for,

Why is this not a responsibility of the court in the allocution, otherwise required to inform the defendant with specificity of the sentence to be imposed?  It’s a matter of form over substance.  Deportation is every bit as much a part of the game as incarceration, and yet never mentioned as a consequence of the plea by a court.

As for Padilla’s issue, it strikes me that the better answer than ineffective assistance of counsel is that the plea was not entered into knowingly, voluntarily and intelligently.  The false separation between criminal sanctions and collateral civil consequences is meaningless to a defendant faced with a choice of whether to take a plea or go to trial.  No intelligent decision can be made in the absence of all legal consequences, no matter how Congress has chosen to artfully frame them to keep them under wraps.

And then, of course, there’s the problem of the harshness, sometimes the absurdity, of automatic deportation.  For those whose reaction is, so don’t commit a crime, it’s hardly that simple.  The wealth of opportunity to be charged with a crime is so broad as to make ridiculous the suggestion that leading a law-abiding life is the cure-all.  When someone is facing decades in prison, though innocent of any crime, plea offers to probation look awfully attractive.

Moreover, some non-citizens are every bit as much Americans as anyone else.  Consider the 50 year old man who arrived here at 6 months of age, never knew his “homeland”, never spoke its language, knows no one there.  He’s not got 3 very American kids, some medals from his service in the military and a mortgage.  Yet he’s as subject to deportation as the guy who snuck in through the hole in the fence a week ago.

There are so many flaws in this situation that compel change that it’s about time that the issue came before the Supreme Court.  Unfortunately, it played out, as one would expect, with everyone looking at the screw-up of the criminal defense lawyer.  His failure was certainly very real, but only one of many in this sorry situation.  The best answer isn’t always to blame the lawyer.

Legal Rebels: The Sky Is Falling!

The third, and hopefully final, prong of the ABA Journal’s challenge to The Onion is called 24 Hours of Rebels.  It’s unclear why it’s called that, but it is.  The purported purpose is to meet “some of the most creative minds in the legal profession. We’re asking them to answer the question:  How does the practice of law need to change in the next five years?”

Molly McDonough, associate editor of the ABA Journal, asked me if I would participate.  At first, the idea of having my say on the subject of what needs to change to a different audience than I might otherwise reach was alluring.  After all, who doesn’t want to stick his two cents into something as juicy as what wrong with the law.  Her only demand of me was that I not beat anyone to death in the process. Keep it civil, in other words.  “I’m always civil,” I replied. “I’m also honest.” I don’t know if that made Molly feel any better.

After a day of contemplation, I realized that it would be disingenuous of me to participate in this project.  There was far too much to criticize in what the ABA Journal was doing, and with all the otherwise fine folks preferring to be on the receiving end of the ABA Journal’s love, someone had to be the spoiler.  If not me, then who?

I declined Molly’s offer.  I bet that made her feel better.  Molly thinks that I hate her given my civil yet honest critique of this project, but I like her very much.  It’s the direction taken by the ABA Journal, its facilitation of the self-promotion, it’s knee-jerk adoration of technology as an end in itself, it’s failure to recognize the core ingredients of true legal rebels, the ones who are willing to put their nuts on the line to fight against the tide of reducing lawyering to used car sales by promoting the lowest common denominator, that I don’t care for. 

How could I, on the one hand, enjoy the benefit of using the ABA Journal’s platform while simultaneously challenging it, even ridicule it, as reflecting where a profession should never go?  I couldn’t.  I demurred.

As it turned out, I made the right choice.  Having parsed Day 1 of this 24 Hours offering (there’s a day 2, which makes one wonder what type of clock they are using over there), the problem is manifest.  Two examples stand out, the first being Richard Susskind’s essay on the disaster ahead for lawyers who don’t succumb to the “modern ways.”  Now this isn’t new, as Susskind has become the leader of the techno/outsourcing movement, and to those who love the cheapest, easiest, least competent way to earn a legal fee, he’s the Man.


As a consequence, law firms will increasingly be asked to reduce their fees, to undertake work on a fixed fee basis, and they will often being selected by hard-nosed, in-house procurement specialists and not solely by in-house lawyers. The legal market looks set to be a buyer’s market for the foreseeable future.

At the same time, new competitors are emerging, such as outsourcers and entrepreneurial publishers; while liberalization of the legal market will bring external funding and a new wave of professional managers and investors who have no nostalgic commitment to traditional business models for law firms, including hourly billing and gearing obtained through the deployment of armies of hard-working young lawyers.

To cap it all, a number of disruptive legal technologies are emerging (such as document assembly, closed communities, legal open-sourcing, and embedded legal knowledge) which will directly challenge and sometimes even replace the traditional work of lawyers.

For many lawyers, therefore, it looks like the party may soon be over.

Disaster!  We will all be shucking oysters for a living if we don’t accept a future of lawyers being piece workers in factories, sending our work off to Bangalore in pdf files and complementing people on their choice of forms at Legal Zoom.  While I’ve little doubt that the Biglaw pricing structure, internally absurd as it was, will change, it’s not because we need to take the professionalism out of the law, but because it had grown to ridiculous proportions. 

Of course, not all law is done at the behest of inside counsel, and having enjoyed discussing this subject with them at SuperConference in Chicago, even house counsel isn’t quite as strident as Susskind suggests.  Sure, they would like to come in under budget for litigation, but they also want to win.  They aren’t prepared to give up billion dollar verdicts to save a few grand on document review.  Unlike Susskind, they still respect competence and professionalism, perhaps more so than Susskind can realize.

Predictions of doom like this reflect a trend used by the proponents of each new technology as it enters the lawyer consciousness.  If you don’t use it, you’re dead.  Whether it’s cloud computing, or blogging, the cutting edge spells life or death to these advocates.  That’s what I was told about 8 track tapes. 

Had Susskind simply argued that lawyers have exacerbated their financial disconnect from clients by their refusal to consider, integrate and use available technologies to improve their performance and reduce their costs, I would be a fan of his too.  Anything that enhances our delivery of excellent legal services to clients, particularly if it reduces the cost of legal services, is valuable to the profession and worthy of our interest.  But that’s not what he’s saying.

Nowhere does Susskind concern himself with competence.  Nowhere does Susskind address excellent client service.  Quite the contrary, he promotes cheaper cost by reduced competence and professionalism.  There is no place in Susskind’s future for excellence.  Reduce everything to the lowest common denominator, the cheapest, fastest possible, even if it means schlock. Who cares if the legal services suck, at least they’re cheap.

Is this what the ABA Journal exists to promote?

As if to drive Yoda Susskind’s stake right through this lawyer’s heart, next came perhaps the most bizarre exercise I could imagine.  It was a debate called “Twitter: Waste of Time or Marketing Goldmine?”  Who would have thought that we would ever see the ABA Journal concerned with new ways to use marketing to degrade the profession?

But that’s not what made the experience surreal.  Rather, it was the choice of the ABA Journal editors of who should represent the sides of the debate.  On one side, the side arguing that twitter was yesterday’s fad, fun to do but of little if any value to the profession, was Larry Bodine.  Here’s the quip on Larry’s background:


Larry Bodine, who blogs at LawMarketing Blog, is a law firm business development adviser. Previously, he was director of communications at Sidley, Austin Brown & Wood and is a former Editor-and-Publisher of the ABA Journal.


About as impressive as one could be on the subject of legal marketing, right?  And his worthy adversary?


Rex Gradeless, who blogs at Social Media Law Student, is a well-known advocate of the use of Web 2.0 technologies by the legal community.Through his blog and Twitter streams and other use of social media, Gradeless is considered a leading source of information on the use of blogs and social media for lawyers and law firms.
That’s right, our old friend Rex7, the unemployed law school graduate from the class of 2009, whose claim to fame is the collection of more than 70,000 followers on twitter.  Now I actually feel rather badly about writing these words, as I truly don’t want to pick on Rex, but he keeps popping up in places where he has no business being.  I certainly didn’t urge the ABA Journal to chose Rex as the front man for twitter, and I certainly didn’t urge Rex to accept the role.  But he did, and he’s there, and that leaves me no choice but to deal with it.

Rarely, in the history of the law, has there been such a lopsided pairing, one that demonstrated by its very existence the silliness of the debate.  Indeed, the first thing Rex says in the debate is that he feels like it’s David against Goliath, recognizing that he lacked the credentials to be in the same room as Larry.  Had it been Kevin O’Keefe against Larry, it might have been a contest. 

The substance of the “debate” isn’t consequential, though anyone who cares can hear it at the link.  Unfortunately, it wasn’t available live as the technology failed.  There was really only one question worth asking: With his 70,000+ followers, has Rex been able to get himself a job?  The answer, unfortunately, is no.  Now if one could trade followers for stuff like, oh, food and housing, maybe the numbers would matter.  Any farmers out there in need of twitter followers?

While it is deeply disturbing that there is so much discussion about how to make lawyers less professional, less responsible, less competent, so long as they have work/life balance, it is incomprehensible that the ABA Journal has become a primary cheerleader of the lowest common denominator.  Would it kill Editor Ed Adams to promote the notion of excellence in lawyering without the abject greed and self-promotion that have become the hallmarks of lawyers online?

For many years, the ABA Journal was viewed as the house organ of the Old Guard, the stodgy old white men in three piece suits smoking cigars and giving orders to the lowly associates to work harder and longer.  It’s now new, cool, trendy, cutting edge, for the ripped jeans, flip-flop, Starbucks mocha frappucino crowd that leaves the office by 5 even if the brief is due in the morning. 

Is there no one to speak for lawyers who just want to provide their clients with excellent legal services?  Well, I’m trying, and that’s why I can’t be anyone’s Legal Rebel.

Edit. Note:  The name David Susskind was mistakenly used instead of Richard Susskind.  My bad.  All Susskinds look alike to me.  It has now been corrected.

The Intangible Right To Prosecute

When the Supreme Court refused to grant cert in Sorich v. US, Justice Scalia wrote a scathing dissent, questioning how the court could pass up the opportunity to dissect one of the most incomprehensibly vague and yet pervasive criminal law amendments ever enacted.  Under a scheme or artifice to defraud, 18 U. S. C. §1346, Congress threw in, “to deprive another of the intangible right of honest services.”

The intangible right of honest services.  To paraphrase Justice Scalia, “huh?”  It’s original intent, to use as a weapon against dishonest politicians and corporate titans, who abused their positions for personal gain, would appear to be well intended, but its language, and subsequent employment as the newest darling of the prosecution, has reduced it to a nightmare.  This term, the Supremes have granted cert to two cases involving this crime.

In his Sidebar Column, Adam Liptak at the New York Times characterizes the problem:


Critics of the honest services law say it has two essential flaws. It allows federal prosecutors vast discretion “to go after people they don’t like or people they disagree with politically,” said Julie Rose O’Sullivan, who teaches criminal law at Georgetown.

The second problem, said George D. Brown, a specialist in government ethics at Boston College Law School, is that prosecutions of state officials under the federal law may violate fundamental principles of federalism. “It represents a federal judgment that you can’t trust the states,” Professor Brown said.

While not untrue, Liptak’s explanation of the flaws fails miserably to get to the heart of the problem.  The issue is that it covers everything and everyone who is in any way connected to any business or government entity of any stripe.  It presumes that there’s a purity of motive, an absolute altruism, that directs the conduct of each potential target, and that the failure to perform one’s function consistent with the government’s view of purity is, in itself, a crime.  It requires neither profit nor detriment from the purported wrong, though this is in conflict amongst the circuits.


The United States Court of Appeals for the Fifth Circuit, in New Orleans, requires proof that a state law was violated before the federal law kicks in. But the Ninth Circuit, in San Francisco, that limitation in Mr. Weyhrauch’s case.

The Seventh Circuit has imposed a different limiting principle. It requires proof of “private gain,” a principle rejected by the Third Circuit, in Philadelphia. But the “private gain” limitation was of no help to the defendants in the Chicago patronage case, who apparently gained nothing. The fact that the people who got jobs gained something was enough.

The product of these conflicts is obvious. If courts can’t decide what constitutes a violation of the law, how can any individual know when he oversteps the bounds?

The gist of the problem is that people, whether politicians or corporate executives, act with dual and conflicting motives.  On the one hand, they are required to fulfill their duty to their constituents or their employers, whatever that duty may be.  On the other hand, they have, to some greater or lesser extent, a self-interest at stake.  For corporate CEOs, it means obtaining a ridiculously high salary and bonus package.  For politicians, it means courting votes to maintain their position of power.  Sometimes, the motives are in sync, and even though conduct may not square with some absolutist view of ethics, it happens that self-serving purposes also happen inure to the benefit of others, or at least cause no harm at all to those to whom this duty of honest services is due.  Yet, with an artfully crafted indictment, all of this can be flagrantly illegal.

To a large extent, the scope of this law is limited only by the imagination and drafting abilities of the prosecutor.  It takes little effort to craft an allegation of improper motive ascribed to an act to bring it within the broad and amorphous reach of the law.  Even for the politician, who is presented with the option of voting for or against a law, the decision to vote in any particular direction would be used to prove a crime if a campaign contributor benefited from his decision.  And yet, isn’t the decision of which way to vote peculiarly within the purview of the elected official?  This suggest that there is a right or wrong way to vote, and that the politician voting his beliefs, but the “wrong way,” could expose himself to prosecution.  Forget the obvious detail that the contributor supports the politician because they share similar beliefs.

This led Scalia to complain:


The bottom line, Justice Scalia said in February, is that the courts have not been able to define what separates “the criminal breaches, conflicts and misstatements from the obnoxious but lawful ones.” The honest services law, he said, “invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators and corporate C.E.O.’s who engage in any manner of unappealing or ethically questionable conduct.”
While cynics may find Justice Scalia’s sudden concern for the welfare of criminal defendants who happen to be corporate CEOs somewhat disingenuous, noting perhaps that the “new professionalism” plays no role in assuaging his issues, the fact remains that honest services is a disaster to defend because of its utter lack of meaning and parameters.  It’s just a bad, meaningless law that covers whatever a prosecutor wants it to cover.

It’s about time that the Supreme started earning their pay on this one.  And for once, it looks pretty good that they will come out on the right side.  If only they were as deeply concerned about overcriminalization for the rest of us.

McCarthy vs. Balko; The Texting War

Representative Carolyn McCarthy has proposed a new law to outlaw texting while driving.  Called the Avoiding Life-Endangering and Reckless Texting by Drivers Act, awkward but necessary to come up with the really cool acronym ALERT,  She argues for her law in US News & World Reports,  While laying the emotional argument on thick, and beating the daylights out of the obvious, she does present some of the empirical support for the proposition that texting while driving is an awfully dangerous thing to do.


It is hard to dispute the realities of distracted driving. In a study published this summer, Virginia Tech University found that drivers are 23 times as likely to get into an accident while texting. Another study, published by Car and Driver magazine in June, concluded that texting while driving can be more dangerous than drunk driving. Other studies of distracted driving have yielded similar results.

Having identified an evil, McCarthy leaps to the conclusion that a law against it is, therefore, necessary.  Despite an absence of discussion about difficulties enforcing such a law, or the unintended consequences, she contends:


Often, it is the legality of an issue that is the impetus to effect behavioral change. For those in states that do not ban texting, there is little incentive to encourage people to stop, aside from an accident itself. We in Congress have an opportunity to create this law and keep our federal regulations up to date with evolving technology’s unintended dangers.

In other words, making it illegal, despite the tacit attendant problems, is the first step to changing the culture of texting while driving.  Radley Balko, however, sees McCarthy driving down the road to perdition.  With a sense of humor that McCarthy could only dream about, Balko writes:



TOBAL is short for “There Oughtta Be a Law.” Here’s the progression of symptoms: Wrenching anecdotes about the effects of some alleged new trend make national news. A panic takes root in the media. Earnest editorialists scrawl urgent pleas for action. Politicians grandstand. Soon enough, we have our new law or regulation. It doesn’t matter if the law is enforceable or may have unintended consequences. Nor does it matter if the law will have any actual effect on the problem it was passed to address. In fact, it doesn’t even matter if the problem actually exists. The mere feeling that it exists is sufficient.

Who doesn’t love a good acronym?  Radley first questions whether the problem is real or a matter of public panic.  He doesn’t question that it’s stupid to do, or that we would be better off without it, but that it’s hardly the killer that its opponents claim it to be.  This is significant since the banning of something that simply doesn’t do that much harm won’t make the roads that much safer. 

Radley notes that texting is merely one of many things that distract us while driving, and that the others, whether watching the GPS system, reading your mapquest print-out, or eating a drippy burrito while the kids fight in the backseat, remain lawful.  But the real problem comes into play when police try to enforce the law.  As in, how the heck would you do it?



That brings us to the enforceability problem. Maryland just passed a texting ban, but state officials are flummoxed over how to enforce it. The law bans texting while driving but allows for reading texts, for precisely the reasons just mentioned. But how can a police officer positioned at the side of a highway tell if the driver of the car that just flew by was actually pushing buttons on his cellphone and not merely reading the display screen? Unless a motorist is blatantly typing away at eye level, a car would need to be moving slowly enough for an officer to see inside, focus on the phone, and observe the driver manipulating the buttons. Which is to say the car would probably need to be stopped—at which point it ceases to be a safety hazard.

Given the multitude of acts that remain lawful but will prove impossible to distinguish from texting, the law making texting illegal will subject drivers engaged in fully lawful conduct to being stopped, essentially at will, and prosecuted when committing no wrong.


Here are two things these bans will do: They’ll give police officers another reason to pull people over, and they’ll bring in revenue for the municipalities that aggressively enforce them.  I think both are arguments against a ban.

Of course, underlying Balko’s contention is that the texters aren’t, in fact, texting, since the obvious retort would otherwise be that they deserve to be stopped and, to the extent that results in fines, they deserve to pay them for breaking the law.  The solution to Radley’s dilemma would be for people to stop texting while driving and then have no fear of a stop or fine. Problem solved.

On the issue of whether texting is a problem, McCarthy clearly has the upper hand, and Radley doesn’t seriously argue otherwise.  While there hasn’t been a deluge of road deaths caused by texting, there’s little argument in favor of the desperate need to text while driving to justify even a single death.  It’s just not a fair trade, and no one has to text that badly that it’s worth the cost of a life.

Balko’s secondary argument, that texting is but one of many activities that distract drivers, seems more an argument to expand the scope of illegal conduct than avoid regulating texting.  That the relative balance of distracting conduct distinguishes texting from, say, noisy kids, doesn’t mean that anything goes. By outlawing the things that are least utilitarian and needlessly dangerous, the law seeks to limit its prohibitions to those acts which present the greatest danger with the least reasonable justification.  Just because you can’t make driving perfectly safe is no reason not to try to make it safer.  Fewer accidents is a good thing,  Just ask anyone who would otherwise die in a car crash.

But Radley’s arguments about enforcement present a more difficult hurdle.  While my anecdotal experience suggests that it isn’t quite as difficult to tell when someone is texting while driving, particularly when they haven’t looked up at the road for 3 minutes, he’s right about there being a fairly broad array of activities that would remain legal and yet be easily mistake for texting.  This would theoretically result in people being stopped, a significant constitutional restraint, who have committed no wrong.  Not something to be taken lightly.

However, it appears that much of the potential for police impropriety can be resolved via regulation of police conduct and, in the context of vehicle stops, is something of a tempest in a teapot.  If the law were subject to a “no stop” provision, such as applies to seat belt use in some states, it would alleviate the concern that law-abiding drivers would be wrongly stopped.  Even without it, stops based on cellphone use, already unlawful in New York, are exceedingly rare even though some drivers continue to use their hands-on phones.

As for the revenue raising aspect, it’s a common misunderstanding that statewide laws inure to the financial benefit of local municipalities.  And since the locals pay for the cops, and the revenue goes to the state, there’s little financial incentive to abuse enforcement.  Even so, this could be addressed by making the fine relative modest, such that it’s not worth the cops’ time to aggressively enforce the law for revenue raising purposes, leaving police free to taser handicapped drivers for refusing to sign tickets.

On the flip side, the concern that police will wrongly stop drivers must be considered in context, knowing that any cop can find a reason to stop any person in any car for a violation at any time.  Traffic laws are so amorphous and easily played that by merely claiming he observed a car cross the center line, an officer can effect a “legal” stop.  And the fact that it never happened isn’t going to change things, since the cop is invariably believed despite the absence of any proof beyond his say-so. It’s not good, but it’s life as we know it.  Adding texting to the mix of bad things to do won’t change much as far as an officer’s ability to seize someone if the mood strikes.

McCarthy’s point, about using the law as an impetus to behavioral change, smacks of nanny-statism, but isn’t without its point.  By making texting while driving illegal, many people inclined to obey the law, and not merely because they fear getting caught but because obeying the law is just an inherently decent thing to do, will stop texting while driving.  This is a societally beneficial thing to do, especially if you happen to be in the line of fire of their gasoline filled, 2 ton missile.  True that not every texter is a killer, but at what point does the death of a loved one justify the sacrifice in the name of the texting god?

While the concerns Balko raises are valid, and McCarthy does little to address them by laying the emotion on thick while ignoring the legal ramifications that one would hope a Congresswoman would recognize, a little tweaking of the law to limit the exposure of lawful conduct to mistaken stops would appear to fill the legitimate enforcement gap that the law ignores.  But given that texting while driving is such a wholly unnecessary activity, and certainly one rife with the potential for harm to others, the value of making it illegal exceeds the potential that it will be abused, at least any more so than any other traffic law.

In all fairness, I am one of those Philistines who would feel no remorse if texting had never been invented, so it sits pretty close to the bottom on my list of worthwhile things to do with your time.  That said, I really don’t want to die because you are busy texting behind the wheel and didn’t happen to notice the red light in front of you.

And here’s Scott Henson’s take at Grits for Breakfast. 

Schools Have Rules, Cub Scout Edition (Update)

Let’s call it what it is.  It’s a knife.  It is not, as has been widely reported, a “camping utensil.”  Sure, it has a fork and spoon, because that’s what’s connected to the knife. It’s like the beloved Swiss Army Knife, It may even have a toothpick and scissors for all I know. But it is, at its heart, a knife.  Just ask anybody who gets stabbed with it.

And so what?

Zachary Christie is only 6 years old, and he’s got a knife.  He was so excited about his new knife, part of his paraphernalia of membership in the paramilitary organization, Cub Scouts, that he wanted to show it off.  The Christina School District had a problem with this.  Do you blame them?  Does the fact that the knife happens to come with a fork and spoon make the knife less of a knife?  If your kid came home and told you that they want a really cool knife like Zach’s, would you be on the phone to the principal in about 12 seconds?  I would.

The New York Times has an editorial about this today, and they too refuse to call it what it is.


Consider the case of Zachary Christie, the 6-year-old Cub Scout from Newark, Del., who has been ordered to spend 45 days in a disciplinary school after bringing his nifty camping utensil to school to use to eat his lunch. The classic, foldable tool contains a fork and a spoon — and also a small knife, which violates the zero-tolerance weapons policy issued by the Christina public school system, Delaware’s largest.

“Nifty camping utensil?”  Have you ever read a story about a stabbing committed with a nifty camping utensil?  And notice how it’s just a “small knife,” as in the perfect length to accidentally pierce the heart of a 6 year old.  By playing word games, the Times trivializes two significant issues.

Problems abound with the telling of this story, as there is no question that Zachary’s mother should never have allowed him to bring a knife to school.  Never.  It’s stupid, It’s dangerous and it should be against the rules.  I can see cute little Zach whipping the blade around a bit to show it off to his friends, and somebody getting accidentally cut.  It’s just not much of stretch.  In fact, I wonder whether a 6 year old is ready for a camping knife at all.  I waited until 10 to give mine his first Swiss Army knife. The Buck knife came at 12.

The trivialization of what was wrong with Zachary’s, and his mother’s, choice undermines the real culprit in this story.  No, it’s not the school district per se, and their ridiculous punishment of 45 days in a disciplinary school.  It’s rather curious that they have disciplinary schools for 6 year olds.  Are these just for the really tough 6 year olds?

The problem here is our old buddy, zero tolerance policies.  What’s astounding is how many people absolutely love zero tolerance in the abstract, and hate it in actual application.  The same people who insist that by removing the arbitrariness of designing solutions based upon the specifics of the situation, by making intractable the certainty of harsh punishment, we can fix all problems, are the same people who demand to know what happened to common sense. 

Which is it people?  You demand mandatory minimums, three strikes, all the simplistic solutions that seem to be the silver bullet for society’s problems, and then can’t believe that anybody actually follows through with them. 


The district’s 80-page code of conduct is, of course, beyond the understanding of a 6-year-old. And wouldn’t everyone have been better off if someone at Zachary’s school had used the opportunity to explain to this child why he should leave his cool camping utensil at home from now on? Administrators said the local code of conduct left them no choice. But now he is holed up at home — his mother is teaching him while his family challenges the district’s ruling — worrying about how his friends will treat him once he returns to school.

The “code of conduct” is drafted by school boards at the insistence of the community, which expects it to address the various potential harms that could happen in a school.  Nobody wants another Columbine.  And sitting in a meeting, it certainly seems prudent to conclude that no weapon in school should be tolerated.  Had someone at the time suggested that the Zachary Christie scenario would arise, they would have been ridiculed.  And yet anomalous situations arise all the time.  That’s how life plays out.

What happened in the Christina School District should not be minimized by pretending a knife isn’t a knife.  It’s a knife, and if somebody was hurt, you can bet your bottom dollar that all hell would have broken loose.  So don’t chalk the problem up to a nifty camping utensil, when the problem here is the combination of a boneheaded decision by Zachary’s mother to allow him to bring this knife to school, coupled by an even more boneheaded decision to remove the authority to handle incidents with appropriate and relative discretion, and to craft ways to address the situation that are both useful and positive. 

But we are so taken by solutions that are clear, swift and absolute.  Is this what you had in mind?

Update:  In the face of apparent widespread public criticism, the School District has relented on the punishment, allowing Zachary to return to school, promising to rewrite the rules to exempt kindergartners and first graders from the harsh punishment.



The school board passed an amendment creating a separate category of rules for students in kindergarten and first grade.

If these students engage in what is known as a Level III offense for the first time, they will now face three to five days out-of-school suspension and referral to school-based counseling, rather than being sent to the local reform school, as is now the case.
While this addresses the issue for one child, the school board has clearly misinterpreted the message.  The problem isn’t that it’s punishment was too harsh, but that it’s zero tolerance rule was inherently absurd in its failure to recognize the particulars of the situation. But hey, who doesn’t love zero tolerance.  And it’s only a 3 to 5 days suspension for a kindergartner, right?  Now if only we can place them on the violent child predator registry.