Nobody thinks that Porsche dealers give cars to law professors because they like them.  I mean, sure, who doesn’t like them, but still they have to pay for that Panamera Hybrid.  And they can, because unlike federal judges and criminal defense lawyers, senior professors at law schools averaged an income of $330,000.  And that was in 2006.

Had the flow of information stopped there, it would have been impressive.  Not as impressive as the Dean, who makes an extra hundred grand, but sufficiently impressive in a capitalist society to appreciate that a bunch of guys and gals whose very thoughtful efforts need not have helped a single living person are still pulling down enough dough to live a perfectly adequate middle class existence.

Then comes the kicker, that tiny bit of information that makes one wonder how such smart people manage not to walk into walls on a regular basis. Via the ABA Journal,

Top law professors make big bucks—money that supports law review articles that can cost as much as $100,000 each in salaries and other costs, according to an estimate made at a conference on the future of legal education.

The cost can range from $100,000 for an article by a well-paid tenured professor at a top school to $25,000 for an article by an assistant professor at a lower-paying school, says Hofstra University law professor Richard Neumann. He made his estimate at a Future Ed conference in New York last weekend, the National Law Journal reports.

In the grand scheme of allocating scarce resources, how is it possible that lawprofs believe that a dedication of $100,000 toward the completion of such critical scholarship as Harry Potter and the Half-Crazed Bureaucracy, 104 Mich. L.R. 1523 (2006) is a good use of capital?

Why do you care if some pointy headed lawprof thinks his desire for scholarship (which is connected at the hip to his desire for tenure) is sufficiently important that it’s worth the expenditure of $100,000?

 Neumann argued that expensive research doesn’t necessarily benefit students who end up paying for the articles through their tuition, the story says. He cited research suggesting that 43 percent of law review articles are never cited elsewhere. “At least a third of these things have no value,” he said. “Who is paying for that? Students who will graduate with six figures of debt.”

Yes, it’s that nasty old truism, somebody has to pay the freight.  As few member of the Academy throw bake sales to cover the cost of scholarship, it’s the money being paid by law students that covers the cost.

As noted, 43% of law review articles are never cited elsewhere.  What’s unknown from this post is how many are never even published, because law students who are very important editors before being unemployed Biglaw hopefuls think them unworthy of their prestigious journals.  Indeed, Eric Johnson at  PrawfsBlawg was prompted to write post about how to reject a law review article. 

Understand that we don’t take rejection personally. Thanks to ExpressO, the law review article submission process has become exceedingly depersonalized – and that’s on both sides of the equation. I understand that law reviews are generally getting hundreds of submissions, but law professors are commonly making hundreds of submissions at once, or at the very least scores of them.

Envision a large used car lot, except where there ought to be some beat up Chevy with “like new” written in marker across the windshield, there are reams of virtual paper with upturned corners and a big red



That’s you law school tuition at work.  That’s the debt you will carry when your kids need braces.  That’s why law schools allow young people to sit at desks and be tolerated by scholars whose true wish is to get out of their quickly so they can go back to their computers and continue typing out the next great work of scholarship, in the hope that some other law student carrying similar debt will think well enough of their work, and of their importance in the Academy, to find a spot to publish their intellectual baby.

Members of the Academy believe with all their heart that their scholarship is at the heart of the law school experience, the driving force that makes higher education, well, higher.  They use lofty rhetoric to justify the need to further the understanding of the law, because the 86,532 law review articles already published haven’t sufficiently illuminated matters. 

And they need you, law students, and you, parents of law students, to pay for them to do so. 

Had lawprofs put their generous salaries to good use, by the purchase of a really hot car with a reasonable resale value that would bring them some measure of enjoyment for years to come, plus give students something to admire about them besides their fine taste in attire, it would be completely understandable.  But no, that’s not where the big bucks are going.  The money is being squandered on the affectation of the Academy, the quest for the definitive law review article that will be admired by all the other scholars and cited by courts in every circuit.  This is the goal of the scholar.

This is what law students are paying for.  So what if you can’t produce a tawdry motion after completion of three years of law school, or find the debt crushing the life out of your twisted body as your resumes fill landfills on Staten Island.  Without law review articles, the experience of law school wouldn’t be nearly as rich.  At least for the law professors.

Greg George at  GTI Advisors  asked yesterday whether  this happens in New York.

Michigan State Police have been using data extraction devices to collect information from the cell phones of motorists detained for minor traffic infractions.

The mobile forensics units made by CelleBrite have the ability to download the data stored on more than 3000 models of cell phone, and are capable of defeating password protection.

“Complete extraction of existing, hidden, and deleted phone data, including call history, text messages, contacts, images, and geotags. The Physical Analyzer allows visualization of both existing and deleted locations on Google Earth. In addition, location information from GPS devices and image geotags can be mapped on Google Maps,” a CelleBrite brochure claims.

Say what?  What possible legitimate basis could exist to “extract” cellphone data from motorists stopped for a traffic infraction.  If it’s happening in New York, I know nothing about it.  If it’s happening anywhere, it’s totally nuts.

The article Greg offered, from  Infosec Island, provides no information about the basis for Michigan cops to gain access to a motorists cellphone.  Clearly, stopping somebody for speeding confers no authority to seize a cellphone, no less extract data from it.  My assumption is that the cop asks, “mind if I take a look at your cellphone for a minute,” putting the motorist in the position of either acquiescing in this bizarre request or appearing to have something to hide.  People hate giving cops the impression they have something to hide, and will do pretty much anything to dispel it. The wrong tact to take, but it happens constantly.

The ACLU is challenging the Michigan conduct.

The American Civil Liberties Union (ACLU) first learned of the Michigan State Police program back in 2008, and filed official requests for documentation on the standards for using the CelleBrite devices.

The Michigan State Police replied they would be happy to release the information provided the ACLU pays a fee of more than $544,000 for the data, an amount the ACLU finds to be unreasonable.

Aside from the absurdity of this situation on all ends, what possible purpose could there be in seeking the “documentation on the standards?”  That such documentation could cost more than half a mil to reproduce is a joke, but what difference does it make.  Are there any standards that could make sense of this conduct?

But what’s the big deal, you ask?  Maybe you have some questionable pics in that phone, or the telephone numbers of your wide circle of friends.  So what?

How about a record of every place, every single place, that phone has ever been.  As my buddy, former FBI spybuster,  Eric O’Neill, notes, your iPhone does more than you think.

British security researchers have figured out that iPhones keep track of where their owners go, saving data to the device and uploading it to a user’s computer when the phone is synced with iTunes. The data includes the phone’s latitude and longitude and is timestamped to the second, all of which is recorded in a hidden file–which is very much not secure.

This could theoretically be useful for anyone interested in knowing where an iPhone owner spends his or her time — advertisers, employers, spouses, parents.

Michigan state police?

To be clear, such a snoop would need access to your phone or computer and a way to extract and refine the data. It is not sent to Apple nor any third parties, as far as the researchers can tell — it’s just stored on an individual user’s devices. But it is apparently not very difficult to extract the location data from a user’s computer.

Like, say, using the CelleBrite data extractor?

And nobody wants to appear uncooperative with the police, as if they have something to hide.  In Michigan, New York or anywhere else they sell iPhones.

Update:  And because the internet abhors a vacuum, meet the Untrackerd, designed to continuously delete your location history from your iPhone.  H/T to Ed. at Blawg Review, who moves around the continent with sufficient frequency that his iPhone had to add an extra half G just to keep up.

The original charges against Dharun Ravi, roommate to Tyler Clementi, whose airing of Clementi’s private encounter has been blamed for Clementi’s subsequent leap off the George Washington Bridge, were based on his invasion of privacy.  And indeed, live streaming Clementi’s encounter was a terrible invasion of privacy, whether Ravi thought it was hysterically funny or otherwise to do so.

But that wasn’t enough for Middlesex County, New Jersey, prosecutors.  Given all the media attention, the primary driving force in law enforcement, and the suicide of a young man presumably caused by the revelation of his sexual preference, somebody had to pay.  Ravi had to pay.

The prosecution disclosed its characteristic of the Funky Junk generation.  But in this age, every tragedy requires that someone be prosecuted, that someone pay.  While it’s impossible to establish a causal connection between Ravi’s conduct and Clementi’s suicide, and likely that whatever drove Tyler to take his life was more than just Ravi’s invasion of his privacy, it won’t stop the prosecution or media from characterizing this as a heinous crime.

Tyler Clementi’s suicide offers an important teaching opportunity, about privacy, sexuality, online pranks and suicide.  Instead, forces with agendas will diminish this by placing all blame on another college kid who, like so many of his age, limited judgment and digital sensibilities, engaged in incredibly stupid conduct.  This isn’t to say that Ravi wasn’t terribly wrong in what he did.  He was.  He should never have invaded Clementi’s privacy.  It’s not funny. It was never funny. 

But to scapegoat Dharun Ravi because someone has to pay for the tragedy of Tyler Clementi’s suicide similarly misses the point.  The wrongfulness of Ravi’s conduct should be, and needs to be, pointed out and drilled into the subconscious of everyone who thinks the internet is a snarky, prank-filled, anything goes zone. 

Instead, Ravi will be hung out to dry for a tragic consequence without a crime beyond the invasion of privacy.  And that’s not enough to make him pay for the death of Tyler Clementi.

The story of Amy,  best known as the victim in the Misty series of child pornography, is a nightmare.  And the story continues at sentencing in kiddie porn cases nationwide, as Amy, appearing by her attorney, has sought restitution from defendants convicted of downloading videos.

The amount of restitution sought is generally in the amount of $3.4 million, and it’s brought a shocking disparity in reactions from courts around the country.

But the same problem in justifying restitution per se remains in attempting to arrive at a rational amount.  Since there is no attributable loss, the numbers are essentially arbitrary.  Are they a product of the totality of harm to the child, and then ascribed to every defendant who might possess an image?  If the harm to the child is determined to be $3.4 million, and the image has been spread to 1,000 defendants, should each bear restitution in that amount?  Granted, it will never be paid in full, but it will do enough to make sure that the defendant, and his family, are under water financially for the rest of his life.

And who cares?  Who feels sorry for the defendant who possesses kiddie porn?  Clearly, the victim is worthy of great sympathy, but does $3.4 million in harm explain $3.4 trillion in restitution?  And how does one court award $500 while another $3.2 million in restitution for the same offense?  How does any court arrive at a rational amount, and yet the court is required to provide restitution. 

In yet another Amy restitution opinion, U.S. v. Monzel, the D.C. Circuit sought to deal with an appeal from Amy, as well as the defendant, through her attorney, Paul Cassell.  Amy sought restitution in the amount of $3.2 million, but the court imposed restitution in the amount of $5000, calling it “nominal” and “less than the actual harm.”  Recognizing the problems created by multiple orders of restitution across the nation,

The court also declined to hold Monzel jointly and severally liable for the entirety of the harm Amy has suffered as a result of the distribution and possession of her image by others, given “the substantial logistical difficulties in tracking awards made and money actually recovered” from such persons.

Rather, the Circuit held that Amy is entitled, under the Crime Victims Restitution Act, to full and timely restitution.  However, the defendant, cannot be ordered to pay more than the restitution for the amount of damage he “proximately cause.” 

Reliance on proximate cause rather than joint and several liability is a critical distinction in the effort to make some minimal amount of sense out of the CVRA.  Rather than every child porn downloader being liable for the entirety of Amy’s restitution claim, no matter how many downloaders there turns out to be, and how the restitution is eventually paid such that it’s multiplied many times over across the nation, the restitution imposed on a defendant is limited to his share of the damage, what he proximately caused.

This makes perfect sense on paper, but perpetuates the conundrum:  How is it possible to determine the amount of damage a downloader of child porn caused?  For those directly involved in the creation and distribution of child porn, the determination seems far clearer, and they may well be responsible for most, if not all, of the harm suffered by the victim.  But what of the guy who watches?

The argument is that there would be no market for kiddie porn if no one watched it, so the downloader is hardly an innocent third party in the process of child pornography.  It’s a rational argument, certainly.  On the other hand, is there any different in harm caused the victim by the 100th, 1000th, 10,000th viewing?  Is the harm exacerbated by rewinding and watching again?  Of course, kiddie porn defendants aren’t the most sympathetic people in the courthouse, and there seems to be a very real question in sentencing of who cares how onerous the restitution award.

In Monzel, the court refused to rubber stamp either side of the argument.  As quoted in  Doug Berman’s discussion of this decision, the Circuit remanded with this direction:

On remand, the district court should consider anew the amount of Amy’s losses attributable to Monzel’s offense and order restitution equal to that amount.  Although there is relatively little in the present record to guide its decisionmaking on this, the district court is free to order the government to submit evidence regarding what losses were caused by Monzel’s possession of Amy’s image or to order the government to suggest a formula for determining the proper amount of restitution.  The burden is on the government to prove the amount of Amy’s losses Monzel caused.  We expect the government will do more this time around to aid the district court.  We express no view as to the appropriate level of restitution, but emphasize that in fixing the amount the district court must rely upon some principled method for determining the harm Monzel proximately caused.

While directing the district court to rely on “some principled method for determining the harm,” the Circuit offers no suggestion whatsoever as to what that method might be.  The reason seems clear. They have no clue what do with this mess.  No court has developed a principled method of dealing with mass restitution by defendants whose conduct defies any rational proximate cause analysis.

As much as we might despise the defendant who has any involvement in child pornography, and feel little concern as to the restitution imposed, the fact remains that the restitution order, which survives prison and affects not just the defendant but his family, his children, as well, the amount of restitution reaches far beyond the purposes of sentencing and impacts innocents as well as defendants.  It matters, despite our lack of the concern.

While the Circuit can craft the order compelling the district judge to arrive at a principled method of determining damages, it can’t make a pig fly.  The CVRA may “work” when the amount of restitution imposed reflects a concrete loss, the amount a defendant “stole” for example.  It works less well when the amount is based on a theoretical loss, the value of legitimate goods when the defendant is convicted of selling counterfeit goods.  It doesn’t work at all, however, when restitution is based on a rhetorical construct, as in Monzell and the other Amy cases, based on the extended argument that without watchers, there would be no producers of kiddie porn.

Once we take a step away from direct harm, where there is a factual basis to determine a quantifiable loss, there can be no principled method of establishing damages for restitution.  As the Amy cases show, no court has as yet been able to come up with a method, and by punting on the decisions has created a range of $500 to $3.4 million in restitution imposed on various defendants. 

No matter how sympathetic the victim, or unsympathetic the defendant, restitution must be rationally related to proximately caused damage or it’s just an arbitrarily imposed fine that goes to the victim rather than the government.  No overwrought argument is going to change that, and no appellate order is going to turn an irrational application of law into a principled method upon demand.  It just can’t be done because there is no principled way to make sense of this ill-conceived law.

The murders happened in 1970.  The book, Fatal Vision was 1983, and the TV movie was 1984.  And the  decision by the Fourth Circuit Court of Appeals allowing Jeffrey MacDonald to pursue a new trial based on his claim of actual innocence, bolstered by  concealed exculpatory statements and DNA evidence was issued April 19, 2011.

If you live beneath a rock and don’t know the story of this more than 40 year old case, MacDonald was an army doctor who claimed that four drug-crazed hippies came into his Fort Bragg home and murdered his wife and daughters, chanting “acid is groovy.”

Even back then, his claim sounded absurd.  Nobody chanted “acid is groovy,” and it sounded like the ridiculous stuff that some green beret guy would invent about things hippies would say.  Bizarrely, it appears that MacDonald may have been right.

On January 17, 2006, after obtaining our authorization, MacDonald presented the § 2255 motion to the district court. According to MacDonald’s memorandum in support of the § 2255 motion, the Britt claim was premised on the following newly discovered evidence:

In January of 2005, counsel for Jeffrey MacDonald, Wade Smith, Esq., was first contacted by a former deputy United States Marshal, Jim Britt, with information, previously concealed, about prosecutorial misconduct during the MacDonald trial. Britt, now retired, served with distinction for twenty-two years as a deputy United States Marshal entrusted with the security of the federal courts and judges in North Carolina. Britt was working at the Raleigh courthouse during the 1979 MacDonald trial and was responsible for escorting the key defense witness, Helena Stoeckley, who was in custody on a material witness warrant. Jim Britt was present in the prosecutor’s office when the lead prosecutor, James Blackburn, interviewed Helena Stoeckley, the day before she was to be called as a witness. As reflected in his sworn affidavit . . . , Jim Britt avers that he personally witnessed Helena Stoeckley state to James Blackburn that she and others were present in the MacDonald home on the night of the MacDonald murders and that they had gone there to acquire drugs; Jim Britt further avers that he witnessed and heard James Blackburn, upon hearing this, directly threaten Helena Stoeckley, telling her that if she so testified in court he would indict her for first degree murder. This threat caused her to change her testimony, as the next day, when called to the witness stand by the defense, Stoeckley claimed to have amnesia as to her whereabouts from midnight until 5 a.m. the night of the MacDonald murders — the precise time-frame during which the crimes occurred. James Blackburn never disclosed to the court or defense counsel what Helena Stoeckley admitted to him in Jim Britt’s presence. On the contrary, Blackburn, at a critical juncture in the trial, advised the court that Stoeckley, when he interviewed her, denied having any knowledge of the MacDonald family, the MacDonald home, or involvement in the MacDonald murders. Blackburn even went so far as to elicit from Stoeckley, through leading questions before the jury, testimony that was contrary to what she had told him during his interview of her the day before in the presence of Jim Britt.

And then there’s the DNA evidence, which didn’t become available until 2006.  His petition was dismissed by the district court for his failure to obtain leave to amend it to include the DNA along with the Britt evidence.  The Circuit reversed and allowed all of it to be heard as “evidence as a whole,” meaning that McDonald isn’t precluded from using the newly discovered DNA in conjunction with the newly discovered exculpatory evidence to prove his actual innocence.

Whether he pulls it off remains to be seen, but the court’s decision certainly suggests that this isn’t one of those nasty, wasteful petitions.  It would make one hell of a movie if it turns out that Jeffrey McDonald was innocent and telling the truth the whole time.  Joe McGinniss may have been a lying scoundrel when he scammed McDonald into cooperating with him on the book, but now he may turn out to be dead wrong as well.

Stay tuned.

H/T “Rob” Robertson, Fairfax, VA.

Consider this an un-book review, as James Stewart never sent me a copy of his new book, Tangled Webs, to review and so I haven’t read it.  Instead, I’m constrained to rely on the review at NPR, at least until  Radley Balko comes out with his own review.

The premise strikes close to home.

Author James B. Stewart asks this question in his new book, Tangled Webs, which describes what Stewart calls a surge of concerted, deliberate lying by people at the top of their fields, like Martha Stewart, Bernie Madoff, I. Lewis “Scooter” Libby and Barry Bonds.

Stewart admits in his book that he can’t prove with statistics how much lying and perjury happens, but instead gathers anecdotal evidence from people like prosecutors who view it as an epidemic to the point where they come into work expecting to be lied to day after day. But whether or not it’s a quantifiable rise, Stewart says the trend of high-profile cases where the defendant ends up charged not for the original crime but for perjury sends a negative message to the U.S. justice system and the rest of the world.

Not that I’m against non-quantifiable “trends” or anything, but one might have thought that Stewart, a former editor at the Wall Street Journal and Pulitzer Prize winner, might have considered the possibility that when people are not charged with an underlying crime, but only for lying, it doesn’t reflect an increase in lying but an increase in prosecuting people for not telling the government what it wants to hear.

One(?) of the disturbing aspects of the book is Stewart’s misunderstanding of perjury, which appears to be used when he’s referring to a 1001 violation, lying to federal officers.  While perjury is a material false statement under oath, Stewart’s anecdotal foundation relies on high profile white collar defendants lying at interviews with agents.  Whereas the former requiring swearing an oath to God, the latter only involves telling law enforcement a different story than they want to hear. 

Stewart spells out his assumptions in this excerpt from the book:

Mounting evidence suggests that the broad public commitment to telling the truth under oath has been breaking down, eroding over recent decades, a trend that has been accelerating in recent years. Because there are no statistics, it’s impossible to know for certain how much lying afflicts the judicial process, and whether it’s worse now than in previous decades. Street criminals have always lied when confronted by law enforcement. But prosecutors have told me repeatedly that a surge of concerted, deliberate lying by a different class of criminal—sophisticated, educated, affluent, and represented in many cases by the best lawyers—threatens to swamp the legal system and undermine the prosecution of white-collar crime. Perjury is committed all too often at the highest levels of business, media, politics, sports, culture—even the legal profession itself—by people celebrated for their achievements, followed avidly by the media, and held up as role models.

This surge of perjury cases at the highest levels of business, politics, media, and culture poses some fundamental questions: Why would people with so much to lose put so much at risk by lying under oath? Whatever they may have done, why would they compound their problems by committing an independent felony, punishable by prison? What were the consequences? And what price are all of us paying for their behavior?

Get the sense that he’s got a few potentially baseless assumptions built into his thesis?

 
What? Me lie?

Then again, by seeking validation from prosecutors, it’s hard to go wrong with baseless assumptions.  Consider:

The author says that after months of negotiations, Karen Seymour, the lead negotiator for the government, called James Comey, the lead prosecutor, saying Stewart’s lawyer, Lawrence Pedowitz, had told her Stewart would accept a deal under which she would plead guilty to one count of making a false statement, with the understanding that she wouldn’t be sent to jail. The prosecutors were enthused that she was ready to admit guilt. But as James Stewart explains in a passage from his book, Martha Stewart soon changed her mind:

Little more than forty-five minutes later, Pedowitz called Seymour again. “Martha won’t do it,” he told her. Seymour’s heart sank. Stewart had decided, according to Pedowitz, that “her business and reputation couldn’t take any admission of guilt.”

The author finds this exchange significant because Martha Stewart wasn’t alleging innocence, but rather said her business couldn’t take a guilty plea. The author argues that like many wealthy people, Stewart just thought the wrongdoing was something she “constitutionally cannot do.”

It never occurs to either Comey (sorry, Jim, but you put your two cents in so you get caught in the mix) or Stewart that Pedowitz’s “explanation” isn’t a reflection of Martha Stewart’s acceptance of guilt, but his best explanation given he couldn’t tell Seymour that the reason Martha wasn’t inclined to take the plea (note that it cannot be assumed that Stewart had actually agreed to cop out, but merely that Pedowitz believed he had a viable deal) was because she hated Seymour more than life itself.  Never confuse rhetoric with reality, as James Stewart conveniently does.

How a handful of anecdotes becomes a “surge of perjury cases” is unclear.  How interviews with agents become perjury is unclear.  What is abundantly clear is that Stewart’s premise is absolutely correct, but he just asked the wrong people the wrong question.

There is indeed a tidal wave of professional lying permeating the legal system, an epidemic of monumental proportions that threatens the integrity of the system at its core.  It’s just not by white collar professionals, but rather the “new professionals,” where lying through one’s teeth aren’t a violation of 1001 or perjury, but put on a pedestal as the finest in law enforcement techniques.

If James B. Stewart wanted to know where the system was breaking down, why respect for honesty in the legal system appears to be ebbing away from his miscreants in Manolos, he need only look at a system that’s grown dependant on deception by the very forces of good that he blindly assumes to be utterly reliable and beyond reproach.  As long as lying by law enforcement remains enshrined as their most useful trick, it’s awfully hard to whine about anyone else not feeling the urge to speak only truth in return.  Welcome to the new professionalism, just a different bunch of professionals than James Stewart had in mind.

Of course, he’s not likely to hear about that problem when he relies on the word of prosecutors to validate his theory.

No doubt about it, habeas corpus is a burden.  Defendants in prison file a ton of them, especially when television goes into summer reruns, in the hope of winning freedom, better food or a decent haircut.  You name the problem and there’s a habe for it.  A real burden.

Two lawprofs, Joseph Hoffman from Indiana and Nancy King from Vanderbilt, write about it in the New York Times :

But habeas is also subject to abuse. State prisoners convicted of non-capital offenses file more than 17,000 habeas corpus petitions in federal court each year. Each petition challenges the constitutionality of some aspect of the prisoner’s conviction or sentence, even though that conviction and sentence already have been affirmed by at least one state court, and sometimes several.

Only a tiny fraction of these habeas petitioners — estimated at less than four-tenths of one percent — obtain any kind of relief, which is usually a new trial, sentencing or appeal, after which they may be sent back to prison.

At such a low percentage of 2254* petitioners (as lawyers call them, after 28 USC §2254), the cost/benefit ratio is absolutely dreadful.

Each petition consumes the scarce resources of both the federal and state governments. Indeed, the never-ending stream of futile petitions suggests that habeas corpus is a wasteful nuisance. By almost any measure, the use, and abuse, of habeas by convicted state prisoners is a failure, one that could corrode one of the most revered pillars of our legal system.  

What I assume is intended by “one of  the most revered pillars of our legal system” is the finality of conviction. which allows us to wipe off our hands as we walk from the grave feeling pretty good about ourselves.

The lawprofs contend that habe, the great writ, was needed back when state courts ignored the federal constitution, but now that most state judges acknowledge that it applies to them whether they like it or not, habeas petitions are just mulligans for affirmed appeals.

As a result, we no longer need habeas review of routine state criminal cases. One reason the writ is so rarely granted in these cases is that state courts long ago took over the role of reviewing constitutional claims that federal habeas courts once performed.

Imagine all the time that will free up for federal judges, who can not ponder and deliberate about their own federal cases, allowing them to reach Solomonic decisions where before they were constrained to knee-jerk denials.  But it’s not just for the benefit of the judges and their overburdened staff that the lawprofs denounce the nasty writ.  Do it for the children prisoners, they cry.

Worse, the misuse of habeas as one more round of appeal in routine state criminal cases will eventually cheapen habeas’s currency. If habeas is chiefly seen as a way for convicted state prisoners to get federal courts to review countless meritless claims, this will diminish public respect for the writ and leave it vulnerable to broader attacks.

Curtail the writ or it will be vulnerable to attack.  It makes sense if you don’t think about it.  And so, the lawprofs offer their solution.

EXCEPT in capital cases and in cases in which prisoners can produce persuasive evidence of their innocence, the need for finality must trump our pursuit of perfection. If habeas review were truly costless we could review all criminal cases ad infinitum.  But,  in the real world, judicial review eventually must stop. 

That a couple of lawprofs see habes as our inadvertent “pursuit of perfection” is curious.  Most lawyers view them as last ditch effort to avoid outrageous imperfection, but then lawyers may inexplicably not hold the system in as high esteem.

Fiscal watchdog Ted Frank argues at  Point of Law that these scholars are giving away the store.

I would go further than Hoffman and King and restrict the writ to cases of actual innocence; while federal courts are more likely to grant habeas petitions in the capital context, it generally appears that they do so for purposes of protesting capital punishment rather than because capital cases are handled more constitutionally sloppily than run-of-the-mill felonies. If anything, the blizzard of habeas cases in the federal courts hurts the innocent, because it’s harder for their habeas petitions to stand out amongst the mass of frivolous cases.

And like the lawprofs, Ted gets there because of his deep concern for the downtrodden.

Money currently devoted to litigating these thousands of petitions would be better served upgrading the public-defender system.

This outpouring of concern for defendants is really quite overwhelming and endearing.  Who would have thought that the evisceration of the right to habeas corpus would be based on such deep, abiding concern for money the welfare of indigent criminal defendants?  I’m misty eyed.

Clearly, it wasn’t enough when Congress limited habeas petitions to a year after the completion of the state appellate process, still allowing the great unwashed to file at will no matter how frivolous their constitutional claims.  So what if DNA that proved innocence was unearthed 13 months later from the hole where the cops buried it.  Finality trumps perfection, which would make a great platitude to carve above courthouse doorways.

The glaring hole in this proposal, however, is not the obvious, that there’s no way to distinguish the meritorious habe from the frivolous until somebody actually ships it off to the court, someone takes a quick look at it and decides whether it gets filed in the square or round container. No, the glaring hole is that these bored defendant can still file their habeas petitions claiming actual innocence when all they really want is kosher food, still busting the courthouse budget.  It doesn’t solve this serious problem.

To that end, I offer a better solution: Attach a letter to each year, and only allow defendants to file petitions in the year that applies for the first letter of their last name.  I considered using their middle name, but since many poor defendants’ parents couldn’t afford a middle name for their children, this would terribly unfair and violate the equal protection of middle-nameless defendants. 

Not only would this immediately cut down drastically on the number of 2254 petitions filed annually, but it would also have the salutary effect of providing an incentive for defendants to seek sentences of at least 26 years and thereby provide them with a habeas filing window of opportunity.  Problem solved.

* Correction to my original post, which referred to §2255 rather than the correct §2254, which relates to federal habeas corpus proceedings for people in state rather than federal custody.  H/T  Strikelawyer for catching my mistake.

Update:  Some excellent  letters to the editor in reaction to the Op-Ed, including a particularly good one from my buddy, Kuby.

Do the math of mass incarceration: If “only” .4 percent of habeas petitions are granted, with 1.4 million prisoners in state custody, that would yield a wrongful conviction number of 5,600 persons. The low success rate for habeas petitioners is due to legislative changes made in 1996 in a misguided effort to restrict habeas corpus. For a state prisoner to prevail in federal court now, the claimant must show that the state court reviewing the claim was not only wrong, but also violated “clearly established” federal law as determined by the Supreme Court. This is a virtually impossible standard to meet and argues for expanding, not limiting, federal review.

Condemning so many to unconstitutional imprisonment is an incalculable human loss. Those who argue that this price must be paid are not the ones who pay it. 

RONALD L. KUBY

As much as the technology chorus overstates the case when they chant that we either adopt the shiny new iToy that comes out or die, there remains a swathe of lawyers who take some sort of perverse pride in refusing to adopt anything that runs on electricity.  Need to know where you’re going? Get a Hagstroms. 

Belying this refusal to even consider learning what’s out there is the Luddite belief that they already know how to do things, and aren’t reliant on somebody else’s app to manage their lives.  For some, it’s the way they’ve always done it, and they’ve done pretty darn good up to now.  For others, it’s the pace of change, too much to bother with and, advertisements to the contrary, it’s not intuitive.  If you’ve managed just fine up to now, why change?

Part of the problem is that the pace of change can be overwhelming, leaving those who aren’t paying attention to the ever-changing cutting edge constantly behind.  It’s not that important to them to spend the time to know, and as one finds oneself behind the times, it’s not important enough to catch up.  They make the decision not to bother, secure in the knowledge that they’ll manage.

But another part of the problem is the smugness of the Luddite, some sort of perverse pride of ignorance.

I see that a lot among my peers, meaning people of a certain age who can well remember the transition from eight track tapes to cassettes.  Some have embraced certain elements of technology, such as a Blackberry, but eschew others.  Some can barely use a computer and are, inexplicably, proud of it.

My gut reaction to the announcement of a Apple product is “so what?”  But I like to know what’s out there and what it can do, if for no other reason than to avoid the shock when the next version appears a week later.  I thought the Flip video camera was a remarkable invention, considering that my first video camera took VHS tapes and weighed about 74 pounds.  Now I hear that Cisco has given them up, smartphone video being too much to compete against.  Of course, I also remember my first cellphone, reminiscent of a World War II walkie-talkie and costing $12 a minute provided you could find a signal. 

To my eye, most of what is touted at the cutting edge of technology means nothing to me.  Few of the very cool apps used in smartphone television commercials fill any need I might conceivably have, and the cool factor of the newest gadget doesn’t make me feel like more of a manly man.  I’ll pass.

However, when a dear friend’s reaction to anything remotely smelling of tech is to say, “pooh, pooh,” ridicule it and remind me that they’ve lived this long without every using anything that required a microprocessor, I cringe.  You sound foolish.  You are foolish.  I understand the resistance, but there’s a point at which reasonably intelligent people take notice of what’s happening around them. 

You can play the Luddite game for fun, but when you really mean it, you refuse to either recognize the utility of technology or distinguish things that will facilitate your life from shiny toys, you become that caricature of the curmudgeon who refuses to accept that life is passing them by. 

The problem is that the pace of change is mind-boggling.  Due to my involvement in the blawgosphere, I learn a fairly good amount about what’s new, and I find it difficult to keep pace or wrap my head around evolving change.  If you haven’t given much thought to tech since the CD came out, it can be impossible to catch up.  And you will spend the rest of your life wondering what the hell everybody else is talking about.

It’s not that I’m suggesting that the iPhone 17 will change your life.  It won’t.  But to deny that changes are happening and remain blissfully ignorant of their existence is no more useful than being the first online at the Apple store when the new iToy comes out.  Use your long-term perspective to distinguish things that will provide meaningful utility to your life, provides a serious benefit for a reasonable cost, and has more than 2 weeks longevity.  There’s a benefit to not feeling the compulsion to be on the cutting edge.

Do not, however, hide your head in the sand and pretend that your ignorance of technology is a virtue.  it’s not.  It’s just ignorance.

A few people sent me emails asking how it was possible, but the email from the Ed. at  Blawg Review put it best: ??? Three questions marks is very serious, with only an exclamation point missing to elevate it to the highest threat level.

Evan Emory pulled what could have been an incredibly funny prank or terribly deceitful conduct when he scammed some first grade teachers into letting him sing to a bunch of kids and record it.  After changing the lyrics to make it appear he sang a dirty song, the nice folks in Ravena, Michigan were miffed.  Really miffed.

Muskegon County District Attorney Tony Tague arrested Emory and charged him with the manufacture of kiddie porn.  Bizarre and outrageous enough to make the New York Times, everybody screamed this was wrong.  Then the other shoe fell.

The guy who didn’t sing explicit songs to elementary school kids gets two months in jail, probation, and must stay 500 feet away from minors when he gets out.

What sort of country are we living in that would impose such a harsh sentence for such a prank?  Before we get too crazy, sputtering about the injustice of it all, consider this detail from the Muskegon News :

Evan Daniel Emory sits in court before pleading no contest to a reduced felony count in Muskegon County 14th Circuit Judge William C. Marietti’s courtroom on  March 14. Under the plea deal, Emory will serve 60 days in jail, two years of probation and 200 hours of community service. He will not have to register as a sex offender.

While in court, Emory’s attorney, Terry Nolan, called the sentence “fitting.” Is it? It’s certainly more fitting than the original charge of child pornography which would have landed Emory in prison for up to 20 years and gotten his name on the sex offender registry. But, is any sentence kind of like sending Anthony Perkins to jail for killing Janet Leigh in the shower? Neither are something that actually happened.

What did happen was that Emory crafted a scheme to involve a bunch of children in his prank.  To ignore this is to enjoy the myopia of punditry, that convenient thing that allows us to opine on only that portion of reality that supports our view.  Neither Evan Emory nor Terry Nolan could afford to be so cavalier as to pretend that he did nothing wrong.

Rather than project my sensibilities on the outcome in response to Ed’s question, I can only offer this: Evan Emory decided to cop a plea.  When you’re the guy staring at a prison sentence if you lose, you have to make a decision.  Emory was entitled to make the decision that was right for him, even if the rest of us would have preferred that he fight the good fight.  That’s how things work in the real world, and no world is more real than that of a defendant in a criminal prosecution.

Sometimes it’s like living on another planet, where the laws of physics don’t apply. Via Heather Morse Milligan at the Legal Watercooler.

Is the Business Card Dead??

In this new age of Twitter and LinkedIn, I’m wondering: Is the business card dead?

When I think about it, I hardly ever carry a business card these days, and, when I do, it’s usually quite purposeful (I’m going to a conference and I need cards to win prizes in the exhibit hall).

Usually, when I meet someone professionally, we pull out our smartphones and connect on LinkedIn, or follow one another on Twitter. And I am not alone in this experience.

I’m sure Heather would never lie about something like this, so it must be true.  She even used two question marks in the title, demonstrating how important the question is.  One mark wouldn’t do.

I carry business cards.  I don’t hand them out to everyone I see, but then, I never did.  I give them to people who ask for them, who need one of my cards for whatever reason.  What has never happened to me, ever, is someone pulling out their smartphones and asking for my twitter name.  Never.

Heather says she’s not alone in her experience, and I’ve no reason to doubt her.  Indeed, she backs up her assertion with such legal luminaries as David Boise Jay Shepherd and Dan Hull Lindsey ‘How I Love Twitter’ Griffith, both of whom apparently also pull out their smartphones so they can connect with their peers.  They just aren’t my peers.

There’s nothing wrong with Heather’s use of tech in lieu of business cards as a means of providing her vital statistics to others, provided her others are similarly beloved of shiny toys.  Hang out with people at the ABA Techshow and expect them to gush over tech.  It makes perfect sense.  But never confuse what pleases a bunch of techies with what works with the rest of the known universe, where the laws of physics still apply.

But my world isn’t Heather’s world;

Twitter, for me, is about identifying people in a crowded room that I want to talk to. I didn’t need to connect with 1000 legal marketing professionals last week … but I easily found the people I needed to meet, and they were usually broadcasting loud and clear via their social networks.

I’ve broadened and deepened relationships I have identified on Twitter, by inviting many of these people into my inner-circle via my personal Facebook.

I use the social media tools available to me to reach out and connect on a daily basis, either personally or professionally. I know to whom I can turn when I need to brainstorm an idea, get a referral, celebrate or commiserate.

She’s standing in the same room as people, and rather than say hello, look them in the eye or shake their hand, she reads their twit.  No need to be in the room at all, when she can broaden and deepen her relationships by inviting these folks into her inner-circle on Facebook.  Like I said, the laws of physics no longer apply.

Picture the day when some great potential client asks you for your business card and instead you pull out your iToy and shove it in his face.  He looks at you like a fruitcake, pondering how he could have been so horribly wrong to seek your telephone number, and takes a few steps backwards before whatever disease that’s affected you becomes airborne.  The real world, the one with regular people who engage in normal communication with other people they presume to be regular, does not live by iPhone.  Maybe someday, but surely not today.

On the other hand, Heather write about a QR code that we can put on our business cards that contains the information an iPhone can suck in.  It could make for an interesting conversation starter, if not a simple way to share info with those for whom tech is a religion.  My next batch of business cards will likely include such a code.  It could be useful, and it’s not likely to hurt.

Therein lies the point of tech, constantly missed by its gurus.  It’s just a tool, something we can adopt if it seems useful and helpful, in doing what we do.  If it makes life easier and serves some useful function, by all means should we make it work for us.  But when we forget that it’s just a tool and start treating it as more important than a firm handshake, a well-polished shoe or a sound legal argument, there’s no amount of technology that will save us from ourselves.

The business card isn’t dead.  Nor is social media, though it’s utility remains an open question.  When I order up my next batch, it will still be on good quality stock with engraved lettering.  It won’t, however, include my twitter name, no matter how many social media ninjas tell me it should.