As New York City Councilman Jumaane Williams and Kirsten Foy, aide to public advocate Bill de Blasio, tried to make their way to the Brooklyn Museum for a political luncheon following the West Indian Day Parade, they came face to face with an immutable truth: they may be important political figures in the city, but they’re still black.

From the New York Times :

But as the two men continued walking down the sidewalk, they found themselves surrounded by uniformed police officers stationed farther along.

“Jumaane was wearing a council member’s pin, they were trying to explain who they were, but the officers weren’t listening,” Mr. de Blasio said in an interview.

Mr. de Blasio said that Mr. Williams began to argue with the officers and that at some point he and Mr. Foy were both thrown to the ground and handcuffed. They were taken to the Union Temple, a synagogue on Eastern Parkway, where Mr. de Blasio said he went after getting the call. There, Mr. de Blasio said, he spoke to a police commander, who released Mr. Williams and Mr. Foy after about 30 minutes without filing charges.

It’s always good to have the public advocate, who happens not to be black, around to straighten out these sort of things, especially when it serves to remind him that life in the Big Apple can be difficult at times:

“It’s broad daylight, they get thrown to the ground, they both get arrested,” Mr. de Blasio said. “If that’s what happens to an elected official and a senior appointee, imagine what happens to a general member of the public.”

No need to imagine, Bill.  Read the papers. Check out the  stop  and  frisk stats. How does one hold an elected position in the City of New York and find what happened to Williams and Foy an epiphany?  Still, better to learn because it happened to someone near and dear than to never learn at all.

What’s fascinating isn’t about the treatment handed Williams and Foy at the hands of a street cop, since that happens every hour or every day.  No, what’s fascinating is how the post-release spin comes out, seeking to lay blame while not offending the powerful.



It’s so very hard to stand out as a representative of the downtrodden, those who are routinely treated like garbage on the streets while not angering the boss-man.  To watch Williams tap dance around Ray Kelly and his responsibility as the Chief of Police is a thing of beauty, worthy of any good politician regardless of party or color.

Had this not involved Jumaane Williams and Kirsten Foy, there isn’t a chance in the world that anybody would have heard of this incident, outside a small circle of friends and a criminal court judge, where they would have been arraigned on disorderly conduct charges and likely an assault on some cop’s fist with their face.  It presents an opportunity to make a point about the presumption of Being Black.

And yet they’ve managed to sufficiently water down their outrage so no important person, no person they might actually have to deal with in the future, gets any dirt on their hands.  There’s a “disconnect” between the wonderful Ray Kelly and the terrible line officers who allow this culture of racial abuse to exist?  Is Kelly unaware of his department’s stop and frisk of any black or Hispanic without cause? 

A spokesman for Mayor Michael R. Bloomberg, Stu Loeser, said that the mayor spoke with Mr. Williams after the episode and that a deputy mayor spoke with Mr. de Blasio. “As the Police Department has indicated, they are investigating this incident and will take all appropriate steps once it is concluded,” Mr. Loeser said.

The police department is investigating, which means that this will never be spoken of again.  Williams and Foy will go back to work on the City’s dime and sit in clean offices, where they will be treated with the dignity they believe they deserve, and bask in the warmth of being safe from the reality of life on the streets of New York City as black men.  After all, they are important government officials, and are entitled to the protections afforded by their positions.

Maybe the cops picked on the right black men after all.

The title of the law review article, via Doug Berman’s Sentencing Law & Policy, was just too weird to ignore:

Do Exclusionary Rules Convict the Innocent?

Rules excluding various kinds of evidence from criminal trials play a prominent role in criminal procedure, and have generated considerable controversy. In this paper, we address the general topic of excluding factually relevant evidence, that is, the kind of evidence that would rationally influence the jury’s verdict if it were admitted. We do not offer a comprehensive analysis of these exclusionary rules, but add to the existing literature by identifying a new domain for economic analysis, focusing on how juries respond to the existence of such a rule. We show that the impact of exclusionary rules on the likelihood of conviction is complex and depends on the degree of rationality exhibited by juries and on the motivations of the prosecutor.

I have long thought that significant concern about wrongful convictions and significant support for the exclusionary rule were in some conceptual tension, and this paper appears to play out some of these kind of ideas.  Though I certainly believe it can be a principled supporter of the exclusionary rule while expressing vocal concerns about wrongful convictions, I think supporters of the exclusionary rule should acknowledge that they sometimes favor putting procedural concerns ahead of trial accuracy.

Dang, now I had to actually read the article and get a sense of why there might be some validity to this position.  To save you from the burden, here’s my quick and dirty: Jurors know that crucial evidence gets excluded at trial because of “technicalities,” so they assume that there is damning evidence that the judge won’t let them see and convict based on the imaginary evidence when the evidence that is admitted isn’t strong enough.

And you know, it’s not as weird as it first appears.

While there’s no basis to believe that this happens in every case, nor even in the majority of cases, every trial lawyer who has talked to jurors after the verdict knows that they come up with wild ideas in the jury room that no one would ever anticipate.  That such ideas would include the assumption that every trial involves excluded evidence seems pretty natural.

It’s wrong, of course, for jurors to assume that in every case there is hard evidence proving the defendant guilty that the court has withheld from them because of that nasty technicality we call the Constitution.  First, it’s remarkably rare that any evidence is subject to the exclusionary rule, suppression of physical evidence, statements or identification occurring so rarely given the wealth of exceptions to the various constitutional protections. 

But second, to conceive of exclusion as some trick, some technicality designed to keep damning evidence form the eyes of the factfinder, reflects a serious misapprehension of the situation.  Indeed, even Berman’s commentary seems to make this blunder:

I think supporters of the exclusionary rule should acknowledge that they sometimes favor putting procedural concerns ahead of trial accuracy.

Procedural concerns?  Hardly.  Sure, the exclusion of evidence sometimes implicates trial accuracy, particularly when we’re talking about physical evidence.  But what about a suggestive identification?  To allow its introduction at trial doesn’t further trial accuracy.  Just the opposite.  Or coerced statements?  Again, no trial accuracy to be had there.

It strikes me that there is a rhetorical argument to be made that every aspect of the law offers an opportunity, often from some cynical perspective, for damage to a party.  Sure, the judge will instruct the jury not to speculate about evidence that doesn’t come before them, and the instruction will be heard and either ignored or misapprehended like so many other instructions given.  It might carry some greater weight if judges didn’t simultaneously allow evidence under the guise of background, or completing the narrative, that is otherwise irrelevant, immaterial, or unreliable.  But that would make prosecutions more difficult, and nobody would want to prevent the prosecution from getting as much of its story in there as possible, even if it’s nothing more than a story.

In the scheme of things, however, this is not a trade-off of trial accuracy against procedure, but a means of vindicating the Constitution and addressing its violations.  Since it happens to rarely, the fact that jurors might assume that there is secret bad evidence withhold from them in every case is bizarre, and might well merit a special instruction that there is no terrible evidence that would prove guilt but has been concealed from them.  It might not be true on the rare occasion that suppression was granted, but since the jurors are likely to ignore the instruction anyway, no harm would follow.

Yet accommodating juror speculation by eliminating exclusion, and thereby eliminating the wild notion that this secret unknown damning evidence exists and is being withheld, is like using an elephant gun to shoot a mouse.  While a conceptual possibility, and perhaps even a real cause of a jury convicting an innocent person based on imaginary evidence, the need to address constitutional violations is far more real and prevalent.  This is hardly just some slavishness toward procedure, but the only means available to protect us from the government violating our constitutional rights.

To the extent the problem exists, perhaps a solution is needed.  Eliminating exclusion, however, is hardly the answer.

There are few populations more vulnerable to abuse than prisoners and their families, and there’s no place like Arizona for enjoying the opportunity to take advantage.  From the New York Times :

For the Arizona Department of Corrections, crime has finally started to pay.

New legislation allows the department to impose a $25 fee on adults who wish to visit inmates at any of the 15 prison complexes that house state prisoners. The one-time “background check fee” for visitors, believed to be the first of its kind in the nation, has angered prisoner advocacy groups and family members of inmates, who in many cases already shoulder the expense of traveling long distances to the remote areas where many prisons are located.

While they call it a “background check fee, they make no bones about the real purpose, a quick and easy money-raiser.

Wendy Baldo, chief of staff for the Arizona Senate, confirmed that the fees were intended to help make up the $1.6 billion deficit the state faced at the beginning of the year.

“We were trying to cut the budget and think of ways that could help get some services for the Department of Corrections,” Ms. Baldo said. She added that the department “needed about $150 million in building renewal and maintenance and prior to this year, it just wasn’t getting done and it wasn’t a safe environment for the people who were in prison and certainly for the people who worked there.”

“Maintenance funds for our buildings are scarce in this difficult economic time,” he said. “A $25 visitation fee helps to ensure our prisons remain safe environments for staff, inmates and visitors.”

The massive prison population has long been a fabulous revenue opportunity, from the  telephone scam to charging for room and board, as if prisons were the Hotel California.  While there are advocacy groups to help prisoners, not to mention the occasional interested lawyers and a judge or two, the rationale for picking on inmates is straightforward: They’re prisoners, screw ’em.

Decades ago, it became clear to prison officials and theorists that there were things to be done on behalf of prisoners that had salutary effects, such as providing them with some entertainment to keep them occupied, some exercise to release pent up tension and education so that they might have half a chance of going straight when they came out.  Each of these ideas caused a public backlash, as if prisoners had the sweetest deal in the world.

Before color television was commonplace, prisoners were able to watch them in the day room and people went bonkers.  Why should prisoners get to watch color TV when law-abiding folk couldn’t?  The problem was exacerbated when prisons offered college courses while tuition increases for the general public made college a stretch for many working people.  The joke was that people would do better to send their kids to prison than college to get their education.

The reasons in favor of providing prisoners with the accoutrements that would both facilitate their stay and help them to re-integrate into society were sound.  So were the beefs against them, as people struggled in their ordinary lives while prisoners were provided access to things they couldn’t afford.  Combined with the backlash toward the Welfare Queens of the 1970s, rational and humane treatment of prisoners became a dirty idea.

Arizona’s new brainstorm, charging visitors for the pleasure of seeing their loved one in prison, is not merely the latest version of how to suck blood from prisoners, but one that flies in the face of one of the more fundamental elements of a successful rehabilitation, the support of family.  Hard as it may be to believe, the family of some prisoners may not have much by way of disposable income, and having to pay sucks up money that might otherwise be used to feed the children.

Missing from this analysis is that prisoners aren’t exactly there by choice, though some would argue that having done the crime, they indeed made a decision to become guests of the state, willingly or not.  Of course, that ignores the innocent who are wrongfully convicted, the innocent who plead guilty for fear of conviction and the guilty who should never have been sentenced to prison.  But hey, these prisoners blend, so we need not concern ourselves with people we can’t easily pick out from the crowd.

But the people who are actually paying the price aren’t convicted of any crime.  These are the families who are trying to support their loved one, and upon whom society relies in trying to bring the former prisoner back into the fold.  The prisoners will get their three square meals regardless, but what of their children?

There never seems to be an end to the great ideas of using the captive population as a source of revenue, despite the backside harm caused.  And these ideas bake to perfection in the Arizona sun.  Yet they remain as misguided and counterproductive now as they were when TV used rabbit ears.  It’s enough that prisoners are incarcerated.  Leave their families, their children out of it.

For quite a while, the issues of unaffordability of legal representation, deregulation of lawyers, form farms for the unwary and the structural failure of the law to provide adequate services to those who need it while leaving vast numbers of new lawyers un- and under employed, have been on the table. 

I said I had an answer, and Labor Day seems an appropriate time to cut loose.

I propose the creation of a new professional position, the Legal Practitioner.  It’s modeled after the concept of the Nurse Practitioner/Physicians Assistant.  It would require specified and regulated education, though significantly less than would be required for a lawyer and at a substantially reduced cost.  It would require testing and licensure to make reasonably certain that it’s practitioners possessed minimum competencies and that the public was safeguarded from incompetents or, in the alternative, had redress.

The function of these Legal Practitioners would be to provide representation to member of the public in non-litigation aspects of the law, such as wills, contracts, uncontested divorces, real estate closings.  The most critical function would be to distinguish between those legal functions they are fully capable of performing and those that require an attorney.

The most important aspect of this new position is that it would entitle the practitioner to function independent of lawyers.  While they could operate within the law firm structure, they would be trained and authorized to practice as a stand alone professional, to hang out a shingle of their own.

I foresee this position as being appropriate as an intensive undergraduate major, or as a master’s level degree. It would necessarily include the basics of legal thinking, responsibility, research, and then include certification in specified areas of practice.  In other words, a Legal Practitioner would be certified to do some or all of the legal functions now done in specific niches of the law.  The practitioner would be certified to do trusts and estates, or contracts, or uncontested divorces.  Or, the practitioner can acquire certification in all niches, should that be their desire, by satisfying the coursework and achieving sufficient tested competence.

The point of all this is to provide society with a low cost, yet trained, responsible and qualified, alternative to lawyers.  By substantially lowering the barrier to entry, and limiting the scope of practice to office functions, we can find a qualified middle ground to the cheap but dangerous alternatives that are cropping up in the hope of taking advantage of the cost gap between what people can afford and what lawyers charge.

As has been suggested many times, the full range of a legal education isn’t necessary to perform many of the basic functions of the law.  Yet that doesn’t mean that anybody can practice law either.  Not only must the Legal Practitioner possess the knowledge to perform the functions permitted, but the wisdom to distinguish those functions that aren’t ordinary, but require a lawyer.  Sure, it will be challenging to make the line clear, but that is why it’s necessary to make sure that this new position is truly professional, and not merely ministerial.

Why not just let the existing paralegals open up shop?  While many have learned, through education, experience and practice, much of what will be taught to the Legal Practitioner, the position of paralegal was never intended to create an independent professional. Some may well be capable, but some will not. None were trained to perform this function, and the position was always meant to serve under the supervision of a lawyer. 

Moreover, the position of paralegal carries baggage, the impression that it’s a specialized secretary, that will impair the creation of a new professional position that holds public respect.  Critical to the success of this position is the public perception that they are truly competent professionals, and not some second-rate, cheapola version of lawyers for people who can’t afford the real thing.  Acceptance of Legal Practitioners as a respected professional performing necessary and important legal functions that can be accomplished with every assurance that it fully serves the public’s needs at a cost that is affordable and proportionate is of critical importance.  Anything less will fail to satisfy the public’s rightful expectation of receiving the excellence in legal services they are due.

Clearly, there is much still to be fleshed out in making this idea viable, but I believe it to be far superior to the alternatives provided by the companies who want to push one-size-fits-all forms into the public’s hands, or the cries for deregulation of the law so that the assistant manager at Dairy Queen can open up a law office tomorrow. 

While there are plenty of problems with the barriers to entry to practice law as an attorney, and I remain of the view that we should establish the dichotomy of solicitor and barrister, and end the fallacy of all lawyers being generalists in a specialist profession, this option seems to be the one that will do the most to both protect the public interest while providing the public with the legal services they require at a cost they can better afford.

One year is all I have left.  Starting tomorrow, I begin to count.

Carolyn Elefant wrote that despite the many things she did wrong as a mother, the one thing she did right was never count.

But one thing that I did right — and never realized til now — is that I never counted. I never counted the number of diapers I changed in a day or how many books we read together at bedtime or how many videos I let my daughters watch during long car trips or long conference calls. I never counted how many nights I stumbled groggily into their room to nurse them at night, or how many minutes I spent rocking them before they fell asleep or how many more years until I was no longer hostage to a 4 pm bus stop pick up. I never counted the time towards when I’d have more because I knew that eventually, instead of counting up, I’d be counting down.  Counting down towards the day where my daughters no longer want to share with me everything that they did in school, or where their friends’ opinion matters more than mine or where their problems exceed my capacity to help solve them. Or where they leave home first for college and then for good.

Like Carolyn, I never counted the things I did for my kids. I groused about them on occasion, to remind them of how unappreciative they were when second after getting them the thing they said they most desired, their wanted to know what I did for them lately.  But the truth is I never counted either.

When I said “no” to something, which was more than most of their friends’ parents, I didn’t count either.  And it hurt to say “no,” though I believed it was necessary and stood firm, most of the time, so that the message would get through.  Inside, I wanted to give them anything and everything, but I knew that would teach them nothing.  I never counted how many lessons I taught when I only wanted to make them happy.

But today, the counting begins.  It will be one year until the day my youngest child, my son, walks toward his future and doesn’t look back.  This is the day I’ve been working toward for years, preparing him as best I could to be strong and independent.  As much as I will want desperately to run up to him and grab his hand, to walk with him just so I can be there if he needs me, I won’t.  It’s the worst thing I could do.

One year from today, I will learn whether my efforts work.  I put him on the horse knowing that he would eventually fall off.  I did it so he would learn to get back on the horse.  I did it while I was still around, to tell him to get back on, to make him understand that as much as it hurt, as much as he was embarrassed and might want to run away, as much as he was afraid, he had to get back on the horse.  He made me proud. He always got back on, even when he didn’t want to.

But I was always there, even if only in the background, just in case things got too bad, too difficult, so that I could help and he would never have to suffer too much for life’s lessons.  As regular readers know, my son is an epee fencer, one of the best things that he ever chose to do.  He learned many critical life lessons from fencing, not the least of which is that sometimes you lose, and that there is a direct correlation between hard work and success.

While he’s done exceptionally well as a fencer, he did not win every bout.  Some losses were taken with equanimity.  Others came hard, so hard that it seemed as if he just couldn’t take it.  And then my big, tough fencer would hide his face in my shoulder, only because he couldn’t crawl inside my body to get away from the loss.

But fencing has some special rules, remnants of the days when it was a gentlemen’s sport.  After each bout, the fencers salute each other and shake hands. The failure to do so, even though the bout has already been won or lost, results in a penalty that changes everything.  So no fencer can hide from his victory or defeat, and no parent can protect them from the harsh outcome of the bout.  They have to face it directly.  There is no avoiding the eyes and hands of the victor, no matter how hard the loss.

One year. 

It would have been so easy to give him all the shiny toys he’s asked for along the way, the things he thought would make him happy and, consequently, make him happy with me.  He got more than his share, though less than many other children. Yet he took more pride in accomplishments than in possession.  He was proud of the things he did rather than the things he had.  But these things were his, and didn’t make him need or appreciate me more.

To make him depend on me for his pleasure was purely self-indulgent. As much as I might have wanted him to appreciate me, to look into my eyes with appreciation and adoration, that would come at the sacrifice of his own ability to achieve on his own. I couldn’t do that to him for my own benefit. I wouldn’t do that.

I could have told him how wonderful I thought he was, even when he really wasn’t.  When the other parents told their children they were special, I tried to tell him the truth.  There were things about him that made me swell with pride. And there were times when he could have done better. And there were times when he did wrong. He heard the praise, and the criticism, and came to know that praise meant something because it was earned, just as criticism meant something because he didn’t earn praise.

And all of this was directed toward one goal, to produce a young man capable and desirous of achievement without my help or intervention.  I changed his diaper when it was time to do so, but in one year, it will be time to watch him walk away.  If he does so without looking back, I will have accomplished my goal so that he can accomplish his. 

And now I count.  I can’t tell you how hard it is to count.

While we tend to focus on law and lawyers here, let’s not forget that we aren’t the only profession facing “issues,” both in practice and on the interwebz.  It seems physicians have theirs as well.  From Medpage Today :

Rather our subject is doctor ‘bots on Twitter — automated programs masquerading as human physicians dispensing medical information.

We follow a lot of physicians and other healthcare professionals on Twitter and engage in dialogues and organized group discussions (“chats”) with many of them. Some time ago we noticed a few Twitter Docs who never seemed to take part in commenting, retweeting, discussions or other types of “social networking” activities, which is what Twitter is all about.

Rather, these physicians just pump out medical factoids on a wide variety of health topics and conditions, complete with links to more information. Two of these Twitter Docs are @IntegrateMD and @NowHealthMD, and we set out to communicate with and engage them. It didn’t take us long to realize that @IntegrateMD and @NowHealthMD are the same person, Dr. Nicole Evans, who describes herself as “a resident physician with a passion for Integrative Medicine” who loves “sharing info on health, disease and the art of medicine.”

Anyone who uses the word “passion” (or any of its permutations) in their twitter, blog or website is trying to scam you.  Whether law, medicine or women’s shoes, it’s the word of the day that’s designed to conceal an absence of skill, education or competence behind a word that smells as if it should be meaningful yet isn’t.  Passion can’t be tested, quantified, proven or challenged, so its use conveys an impression of worth while concealing a lie.  If someone describes themselves as “passionate,” stay far away, unless you happen to be one of those criminal defense lawyers who isn’t bothers by cozying up to liars, in which case, what are you doing here?

Something else we noticed about Dr. Evans is that nearly all of her links pointed to one place, a web site called Helium.com where writers contribute articles and share advertising revenues with the site’s owners. Helium contains 360 articles by “Nicole Evans, M.D.”

Dr. Evans’ articles are rather short and the sample we looked at contained no citations, footnotes or other authoritative sources of her information. The articles contain a fairly large number of hyperlinks that appear to be automatically generated. Many of the links point back to other Helium articles while others point to an online shopping catalog called smarter.com.

Does this cause any harm?

That depends on the quality and accuracy of the information published and whether or not it’s OK to subject human subjects to an ongoing Turing Test. Without anyone to verify and fact-check these articles, these automated “RoboDocs” are feeding the public misleading and potentially out-of-date or even erroneous information at a rate faster than any one human could possibly keep up with.

Law firms used to dictate the terms upon which legal services were performed — work assignment, work flow, scheduling, timeliness, format, delivery, billing, pricing, and many others — because buyers had no other options. Those options have now emerged, powered by technology and driven forward by market demand.

• They promise legal documents not just faster and cheaper but also, incredibly, better, in terms of quality and reliability.
  
• They promise greater efficiency and transparency in the previously laborious RFP-driven process of choosing and pricing law firms.
  
• They promise real-time integration of world-class legal knowledge into the legal work production process.
  
• They promise alignment of a legal task’s value with its performer’s skills, qualification and location.
  
• And at ILTA, they demonstrated delivery on all these promises and more.

But the emergence of these options isn’t the real story. The real story is that firms are buying these new products and services, not selling them. They’re taking marching orders about their use, not issuing them. They’re accepting the new realities of the marketplace, not inventing them. Law firms are now drifting to the periphery of the marketplace, trading places with technology-driven outsiders whose own importance increases daily. Law firms, whether they realize it or not, are settling into a new role: sources of valued specialists called upon to perform certain tasks within a larger legal system that they did not create and that they do not control.

This is a fantasy, the sort of nonsensical crap spread among the technorati wannabes who argue that any kid fresh out of law school can be as cool as the most experienced lawyer if he only gets an iPad. 

Technology may well bring useful tools to our practice, but they do not dictate our practice.  The vultures who use technology in an effort to infiltrate the practice of law and medicine, to circumvent the judgment and advice that distinguishes what real professionals do versus the bot that spits out factoids, want to convince you that they are the future, that they own the future, that they own us.  This is no more law than it is medicine.

Do not believe that the future compels us to surrender to technology.  We will only become the serfs of the robot overlords if we buy into this crap.  It’s a lie.  Do not surrender.

H/T Venkat “I ain’t nobody’s slave” Balasubrumani

Unless the victim knew his perp, descriptions of the alleged criminals are invariably awful.  They tend to cover such wide swathes of the population as to be worthless, except for the “unique” identifiers that people tend to remember:

He wore a Yankees baseball hat.

He had a red tie.

He wore a green hoodie that said “my mother went to prison and all I got was this lousy green hoodie.”

Defendant was charged with two robberies that occurred on the same morning. The witnesses to the robberies described the driver of the getaway car, respectively, as “a huge, big, fat, black guy,” “a real big, real huge black guy,” and “very heavy-set [and] large.”

A review of the lineup photograph reveals that defendant, who weighed 400 pounds, was the only participant who fits these descriptions. Although the fillers were large men, there was a very noticeable weight difference between defendant and the fillers. While the lineup participants were seated, and this can sometimes satisfactorily minimize differences in weight, it is clear from the photo that there was a marked difference between defendant and the fillers.

From the story headline, it appears the difference in weight ranged from 115 to 190 pounds.  That’s another whole person, and it demonstrates the point about how people are identified, by the feature that stands out to the quick observer.  When you see a 400 pound guy, that’s all she wrote.

Notably, the decision doesn’t begin to rip to shreds the worthlessness of this identification, the flagrant failure to craft a line-up that stands even a close chance of accuracy.  Indeed, the opinion is almost apologetic for not affirming the conviction, but this one went just a bit too far.  The court, throwing judicial humility to the wind, goes on to say:

We do not mean to suggest that the police are obligated to find grossly overweight fillers when dealing with the situation presented here, and we recognize the practical difficulties that would be involved in doing so. Instead, this situation would call for the use of some kind of covering to conceal the weight difference.

Of the multitude of concerns that a gang of five judges might have with this identification procedure, and knowing full well that bad IDs are the leading cause of wrongful convictions, and further knowing the bad identification procedures are the leading cause of bad identifications, they still feel constrained to “teach” the cops how to circumvent a negative ruling while accomplishing nothing in the accuracy of the identification.  Their foremost enunciated concern is the practical difficulties for police in providing proper fillers.  Is that really a greater concern than convicting the innocent?

Because the head of a 400 pounder isn’t proportionately larger than the head of a person half his weight?  Because the drape of the white sheet over the body of the 400 pounder doesn’t clearly show that he’s huge?

While it’s somewhat admirable that the panel reversed, showing that there is a line that even the Appellate Division won’t allow to be crossed, the inherent unreliability of standard line-ups is still of little concern, and the overarching concern that law enforcement not be put to too much difficulty in assuring that their perp gets ID’d remains enormously troubling.  Nowhere does the decision urge that the police employ any of the methods that might come close to assuring an actual accurate identification.

One final noteworthy aspect of this decision is that the defendant was represented on appeal by the Cardozo Law School Criminal Appeals Clinic.  Granted, the law involved is fairly clear, and the argument on appeal centers only on whether this line-up exceeded the “unduly suggestive” threshold.  Still, that this reversal comes from a law school clinic is yet another indication of the efforts Cardozo puts in to preparing their students for the real practice of law, like their ITAP program, and which other law schools really need to recognize. 

As for law firms looking to hire new lawyers equipped to get to work as soon as possible, it’s programs and directions like these which offer a far more effective new hire than law review or top tier school credentials.  If you want your new lawyers to be lawyers, this is what you should be looking for.

H/T Eric Turkewitz, on the cutting edge of huge.

From Tempe criminal defense lawyer Matt Brown, not long enough in the tooth as yet to see new lawyers from the distance where I sit, there remains a nagging problem:

I often think about a comment my mom made made a year or two ago. She was talking about retirement and mentioned how it would be interesting to see how it feels, as the men and women of her generation identify themselves by their work. The job defines them, apparently. I’ve thought about that statement often. I can’t say if she’s right, but I can say that a negative implication of her statement is definitely true. The men and women of my generation generally do not identify themselves by what they do for a living.

I share Matt’s mother’s perspective, where we are what we do.  Not completely, and not to the exclusion of all else, but the first thing out of our mouths when someone asks who we are would invariably be our job. 

I frequently see blog posts about job-hunting for law students and new lawyers. Getting a job is obviously a big concern for a lot of people, and there are plenty of others willing to provide advice. Advisors suggest things like hanging around with practicing lawyers and broadening the search to include non-lawyer jobs. They say to embrace social media and to think outside the box. Those are the tools to get a job, the explicit goal of people in my generation. Rarely do people mention being qualified for the desired job as an important part of the equation. The advice all seems geared toward staying just as you are while altering superficial things that make you more appealing to employers.

Superficial is an important description, as it’s used very rarely yet applies with great frequency.  Few see their efforts as superficial, putting a shiny gloss on an otherwise empty vessel, because they’ve been told that the exterior sheen is all there is.  Yet, it seems impossible to believe that they don’t feel in their hearts that they are empty inside.

My generation wants work, but they don’t want to define themselves by their work. A job is a way to live in a nice house, drive a late model car, and have enough stability to relax on evenings and weekends and during several weeks of vacation each year. A job will provide an office with a window and a big desk under which they can grab a quick nap after taking a long lunch break at a trendy restaurant with their work friends. Jobs are means to an end. They want a job not because it’s the job they want to do or even that they can do exceptionally well, but because it will help them do the non-job-related things that make them happy. They don’t care if their work time is well spent as long as it pays the bills.

This isn’t merely “working for the weekend,” but caring about nothing other than oneself, and using the job as a conduit for the flow of money to fund a real life while giving as little in return as absolutely necessary.  And not feeling any remorse about it.

As the complaint of the Slackoisie over the past few years has been the dearth of jobs, or opportunity, available to those saddled with the debt they were told was the purchase price of a life of fine food and fancy cars, one might naturally suspect that they would come to realize that shiny is not enough.  The days of merely showing up, seeing what they could get away with, are over.

Some have sought an alternative route, hooking into the next shiny, empty faux reality, where self-deception combined with lying to others seemed like a good way to turn a worthless career into a money-maker, enough to fund the real goal in life.  Even the smarter ones, the ones who ought to know better, have reduced themselves to cheerleading anything shiny, no matter how vapid. 

The secret here is that the proponents, having no particular care that they are empty and devoid of substance, that they are merely superficial shells that provide no value and contribute no substance, are more than happy to create the appearance of self-worth in order to make a buck.  They don’t mind at all that they offer nothing, since the only purpose to all of this is to suck some money from an unsuspecting fool so that they can enjoy the fine life they deserve.

Every time someone who’s done nothing to build a foundation of knowledge and skill in a given area of law complains about how employers in that area want someone with three to five years of experience, I worry about the future.

It may be worse than Matt suspects, as three to five years experience doing little more than pretending to be a lawyer isn’t experience at all.  It’s just wasting time in an office waiting for the chance to get to happy hour.  Killing time isn’t experience.

Yet law students and young lawyers continue to complain about the death of their great expectations.  They have no jobs, and their career as social media gurus brings internet adoration but barely enough money to fund a mocha frappucino, no less a Ferrari.  They are certain they are brilliant, as every adult they met growing up told them so, yet no one seems to appreciate that they are smarter than every person they survey.  How could things go so wrong? 

Here they are, starving.

And yet, as Matt Brown sees, they aren’t hungry enough to do anything real about it.

*The phrase comes from a column in the South African  City Press by Dion Chang, who liberally enjoyed my work, and so I return the favor.

Best efforts of the defense aside, U.S. District Judge Reggie B. Walton has  refused to dismiss the case against Roger Clemens. Not because the prosecutions use of prohibited evidence before the jury was okay with him.  Not because it was an accident. Indeed,

Earlier in the hearing, Walton had castigated government lawyers, saying he had “a hard time reaching any other conclusion” than prosecutors had intentionally disobeyed one of his orders when they introduced the barred evidence.

It doesn’t get much worse for the prosecution.  Or perhaps better stated, it doesn’t really matter, aside from having to endure a few harsh words.

“While I am very troubled by what occurred and it was something that should not have taken place,” Walton said, “I just think that the current state of the law would not justify me concluding on the record we have in this case that the double jeopardy clause bars reprosecution.”

Clearly, the law wasn’t going to  make it easy for Walton to rule for Clemens, with the rule requiring that the prosecution’s conduct intending to goad the defense into moving for a mistrial.  But Walton’s justification for denying double jeopardy is particularly troubling :

Walton said his review of case law found no defendant who has been able to meet that requirement.

Well yeah, it’s a hard bar to meet.  Very hard. Too hard, most would agree. And yet, the fact that no defendant has satisfied the requirement creates the very problem Walton faced.  Unless one judge has the fortitude to rule in favor of the defense, there will never be a case where the defendant meets the requirement.  Reggie Walton could have been that judge.  Reggie Walton blinked. Ducked and covered. The prosecution did its worst and the judge caved.

There is a question of whether the intent to goard the defense into moving for a mistrial under Oregon v. Kennedy, 456 US 667 (1982) means that the court had to find it to be their sole, exclusive purpose, in that they actively desired a mistrial, or whether it means that the prosecution’s intention was to introduce precluded evidence to the jury, knowing full well that the options to the defense and the court were limited to an instruction to disregard the evidence or a mistrial.

Instructions to disregard evidence are a legal fiction.  The bell once rung cannot be unrung. The jury heard and saw the evidence, and there’s no way to get it out of their heads.  Both sides know this, and the prosecution, when it intentionally used prohibited evidence, placed the court and defense in an impossible situation.  A limiting instruction was a joke, but the only other option was a mistrial, forcing the defendant to give up his sworn jury and his trial as it transpired to that point. 

Did the prosecution desire a mistrial per se?  Perhaps not, but it certainly understood that it forced the option by using bared evidence.  When it comes to proof of intent, the law presumes a person to intend the natural consequences of his acts.  This applies to the prosecutor as well as anyone else, and the natural consequences of his conduct was to leave the defense with the choice of a worthless instruction or a mistrial.  This is no choice at all.

One of the great joys of being a federal judge is that you get to be one for as long as you like, provided you don’t do anything particularly nasty (in the illegal sense of the word).  They can’t take your robe away for having guts, or even making a wrong decision.  They certainly can’t take you off the bench because you’ve decided to be the first judge to rule in favor of a defendant since the Supremes issued a ruling that raised the bar for dismissal above the heads of most defendants.

This was the case.  This was the one time, the first time, maybe the only time, that the bar of Oregon v. Kennedy could have been met.  Maybe not a perfect fit, and maybe subject to some dispute, but similarly not so much of a stretch that it could not have been fully justifiable.  Reggie Walton could have done it. Reggie Walton chose not to do it.

And so the prosecution, intentionally showing prohibited evidence to the jury, gets a stern tongue-lashing for it’s intentional violation of a court order, and a second try.  Never do it again?  Or what, Judge?  What are you going to do about it next time?  Give them a double stern warning?

As judges love to say, high profile cases give them a bully pulpit to teach the country a lesson about right and wrong, good and evil.  The lesson here is that the government can ignore the ruling of a court, intentionally violate it in the process of impugning a defendant, and they will suffer nothing, not a thing, for their conduct.  Great message, Judge Walton.

Whether there will be another case that presents a viable scenario to meet the absurdly high bar of Oregon v. Kennedy is hard to say, but this case had the meat to do so and Judge Walton passed because no one had ever done it before.  Judge Walton will be remember as the judge who was too afraid to be the first.

While it’s rarely mentioned in the lawbooks, underneath the harsh talk of law and punishment is an expectation that prosecutors, in whose hands monumental power resides, will exercise sound discretion.  That means, of course, that they would know sound discretion if it bit them in the butt.

At Popehat, former federal prosecutor Ken writes about the good times as a kid playing with a loaded gun:

So when I got them a search warrant for the ranch of one of the lead targets of the investigation, they were thrilled with me. “Ken,” they say, “we’ve arranged air support for this operation. So we want to have you picked up on top of one of the buildings downtown in one of the Sheriff’s helicopters, give you a raid jacket, and have you come along on the search to run a command center on the ground and trouble-shoot any legal issues with the search.”

HOLY SHIT, THAT SOUNDS LIKE FUN, my 26-year-old self thought. (Yes, I was a 26-year-old federal prosecutor. Defense attorney hand-wringing — which annoyed me at the time, but which I now join — goes here.) A helicopter raid! A raid jacket! A COMMAND CENTER! They’ll probably give me a gun. You know, in case any shit goes down.

But even at 26 I had a certain rudimentary old-mannish quality, and it occurred to me to ask — does that sound too good? So during lunch I wandered into the office of the U.S. Attorney– who had been my supervisor in rookie row not long before — to talk about it.

He listened sympathetically. Then he told me. “Ken,” he told me, “if your reaction to a proposal is “HOLY SHIT, THAT SOUNDS LIKE FUN,” then as a government lawyer and member of law enforcement, you almost certainly shouldn’t be doing it.”

It’s a very good rule, but what it reminds is that not every young prosecutor has the good judgment to ask for a wiser view.  Then again, not every prosecutor who asks will get a wiser view.  Worse still, the need for a wiser view, the sound discretion we expect every prosecutor to possess, doesn’t arise with every decision a young prosecutor makes.  There are many decisions to be made, in many cases, all the time, and they can’t run to the boss every 12 second.  They are expected to make their own decisions. That’s why they’re paid the big bucks.

So what decisions affecting the lives of others would you like to put into the hands of your typical 26 year old?  Would you have them decide whether the father of some sweet children will be there to feed them?  What about the decision of how to make decisions in running a major multinational corporation?  Certainly, most 26 year olds who have never held a non-law job would know better than CEOs how corporate decisions should be made, right?

Ken’s story reminds us of how fragile this system really is, despite the bluster of righteousness that covers up all the ugly warts.  It depends on so many factors all working properly, including the exercise of sound discretion by prosecutors who get giddy at the prospect of playing Elliot Ness.  It’s not sufficient to say that a chain is only as strong as its weakest link, because so many of the links are weak, some barely exist at all. 

Historically, the tempering force to the worldview of youthful prosecutors was the judges, who were expected to use their experience and maturity to guide their executive branch cousins back toward the path of lenity and reasonableness.  That hasn’t always worked well, however, as federal judges were almost exclusively drawn from the ranks of prosecutor’s offices and Biglaw towers, where there was little concern for the way children wielded their weapons.

This was exacerbated by the shifting of power away from judges into the hands of those very same baby prosecutors, whose charging authority coupled with mandatory minimum sentences, and for a time when the sentencing guidelines turned federal judges into junior accountants, made them near omnipotent.  Between the agents they adored, and their belief (or at least acquiescence) that whoever a g-man said was a criminal was, without question, a criminal, and their Ivy League sense of propriety, they could do no wrong.  Even as they drank themselves into oblivion after work, or smoked a bit of reefer with their officemates while pretending it was different than the black kid they sentenced before lunch that day.

If it was just old guys like me who told stories about children with guns being left in charge of our legal system, it could be easily dismissed as the rantings of the other side, sour grapes, maybe even a conspiracy theory in play.  But when former federal prosecutors remind us that they were children once, and given the power to destroy lives, the point is far better made.

Ken was fortunate to serve under a United States Attorneys who both understood something about the job and something about youth.  Not every assistant is so fortunate.  Not every defendant is so fortunate either.