Some see this is a particularly bizarre crime story. Other see this as an opportunity to make jokes.  From Doug Berman at Sentencing Law and Policy :

It is often reported that child rapists are often treated as pariahs even among the most hardened criminal is prison.   Consequently, this stunning local sentencing story prompted the (serious?) question in the title of this post. The article — which has an ending that led me to double-check it wasn’t from The Onion — is headlined “N.Y. super who had sex with dog gets prison.”  Here are the details:

An apartment building superintendent who was caught on tape entering a unit and having sex with the tenant’s puppy was sentenced to prison Tuesday.

Alan Kachalsky thought something in his apartment was amiss for months — blinds drawn that had not been, a window left open that he had left shut.  But nothing ever went missing, and, fearing he may come off as paranoid, Kachalsky never went to the police. Instead, he set up three cameras and waited.  Kachalsky shared his apartment at the Rye Colony Cooperative Apartments with a male Labrador puppy, Gunner, who, unbeknownst to Kachalsky, was the real target of the burglar.

The burglar, it turned out, wasn’t there to steal anything, Kachalsky said Tuesday, but for something far more unimaginable.  Kachalsky, an attorney, said it never occurred to him that someone was returning to have sex with his dog.  Kachalsky turned over the video to police, who questioned and arrested Nicaj on Feb. 9, 2012, for sex acts against the 1-year-old dog committed the day before.

From there, it goes to a place I would never have imagined.

Given the apparent happy ending for the victims of this crime, I am not sure whether to encourage off-color jokes about this case or to engage in serious analysis of the prosecution of this peculiar puppy rapist.  Thus, I pose this dilemma to readers:

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  should we ponder, rigorously or comically, whether and how the victim dog’s tender age impacted the seemingly severe sentencing outcome?



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  should we worry, genuinely or jokingly, whether there are other puppy victims of this defendant who lacked the courage (and ability) to speak up about their abuse?



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  should we question, meaningfully or mirthfully, what the human victim here has now done with the contraband puppy porn than he inadvertently produced?



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  should we wonder, seriously or facetiously, whether upon release from prison the offender will be barred from going within 1000 feet of a pet store without prior approval of his probation officer?

Obviously, this is bizarre conduct, sufficiently off-the-charts nuts that it seem almost Onion-like. But it isn’t a joke, and bestiality (like necrophilia) happens.  Is this funny? Are we so jaded that we can indulge in dark humor to the extent reflected by this post?

There is nothing about what was done to a puppy that strikes me as humorous, even indirectly. This is just sick stuff.  Am I missing something here?

It’s straight out of some Kafkaesque nightmare, with the benign name of “the chair.”  From the Boulder Weekly :

It’s a restraint seat used by many jails to subdue inmates who pose a threat to themselves or others. It has wrist straps, ankle straps, a lap belt and a harness.

The thing is, inmates don’t always go peacefully into “the chair.”

And when they don’t, deputies are authorized to use what at first glance might be seen as violent methods to force compliance.

In official police reports, those methods carry names like “infra-orbital pressure point technique” or “straight punch to the chest.”

But inmates describe it more along the lines of getting beat up by out-of-control cops.

By his own admission, Joshua Johnson became angry after he was taken to jail on Sept. 19, 2009, after being pulled over for a broken headlight. He felt he had been arrested wrongly, for violating an alcohol-related condition of a restraining order that he said had been lifted. In addition, he was supposed to pick up his daughter later that morning, but being incarcerated put a crimp in those plans.

Johnson says they came into his cell five deep, the red laser light of a Taser target shining on him, and he put his hands up. He says they cuffed him and backed him out of his cell, his arm twisted back hard. He was placed forcefully into the chair. According to Johnson, his face was slammed against his knee after he dared to look backwards, and he asked why they were hurting him. Johnson admits he called the deputy a “fucking cocksucker,” and says the officer straddled him and said, “I’m going to show you what a cocksucker I am.”

That deputy then lifted the inmate’s upper lip, Johnson says, pulled it up to his nose, put his palm underneath his lip and repeatedly jammed his hand up forcefully against the base of his nose for more than 60 seconds. Johnson says he heard squealing and later realized he was making the noise himself. He says he thought about biting the deputy’s pinky finger that was in his mouth, but thought the better of it. Johnson claims he managed to gasp that he couldn’t breathe, and the officer replied, “Yes, you can, because I just heard that.”

As he was about to pass out, Johnson says, another deputy punched him in the stomach.

One deputy “applied an infra-orbital control hold,” the aforementioned blows to the nose, which by one account “had little impact and he continued to resist.”

There were never cameras there because video was used primarily to assist deputies with real-time surveillance, not recording, he explains, and there is an observation area looking directly out onto the day room, so there was no need.

Sheriff Joe Pelle tells BW that cameras have historically been used “as an operational tool to see places where deputies couldn’t see, so they weren’t everywhere. But then, a few years ago, attorneys started making requests for video and we noticed it started multiplying and it became apparent that this was more than just a management tool, it was being used for prosecutions and lawsuits.”

He agrees that the disciplinary day area is a good spot to add cameras.

While we’re sitting on hard benches waiting for cases to be called, the legal academy is hard at work reinventing our profession without us.   Massive drops in applications has made their attention imperative, even though there are still enough to fill the seats needed to pay the cost of scholarship. So what if law schools are cold-calling qualified applicants to entice them with Ginsu knives and financing packages? If you spell your name right on the LSAT, there’s a law school for you.

This is pretty embarrassing for law schools, forced to reduce the quality of new admits because the smart kids no longer want to lose three years and a bundle of debt to an education that will enable them to get a part-time barrista position. The more upstanding schools are cutting their class sizes, while the less upstanding ones are happily taking their rejects so they can afford the dean’s salary.

And they’re coming up with schemes to cure their ills.  You probably weren’t paying attention, because you were busy thinking about how to make your phone ring again, but what they come up with is going to affect you whether you care or not.

All these hungry little buggers they’re sending into the profession need to find a way to pay off their loans and keep their mommies from crying, and if you read their blogs and websites, they’re smarter, more aggressive, more caring and, yes, more experienced than you. Baloney, you say? Yeah. So what? They’re doing what they’ve got to do to survive, and niceties like integrity are for old guys. They’re fighting for their lives and, frankly, have completely rationalized ethics out of the picture. And since they are all brilliant (ask them, they’ll tell you), they see no net harm from a bit of puffery.

Just this week, here’s what the scholars came up with:

NYU wants to make a systemic change to law schools that would allow students to do law school in two years and take the bar.  The point is that it would cut the cost by a third, create a two-tier profession since some will stay for the full three years, and force law schools to make the third year more relevant.

While this could save some law students money, although at the cost of being second-class lawyers, it does nothing to make them more competent or to reduce the numbers of lawyers being spewed into a market that can’t absorb them and has no use for them.  Cool plan, bro.

Yale Law School announced that for its first-ever class of law Ph.D.’s, it has received 82 applications for five spots, thus disproving naysayers that nobody in their right mind would waste their time on a law Ph.D.  While it proves nothing of the sort, the thrust toward a scholarly doctorate is happening while one of the core failings of law school is its inability to produce lawyers with the capacity to do anything remotely associates with what lawyers do.  What are the chances that creating a new cadre of scholars, even more detached from the practice of law, is going to produce better qualified lawyers?

It’s not surprising that there are 82 people interested in the program. Lots of people, myself included, are interested in scholarly pursuits, and feel themselves better suited to churning out law review articles than showing kids the tricks of the trade or how to schmooze the clerk to get your papers filed.  But if we assume that the only place these doctors can get jobs is law schools, then this seems to be heading in the opposite direction of producing functional lawyers. While I’ve got nothing against law docs (that’s doctors, not documents), they’re the last thing we need in law schools.

Lawprof Steve Diamond, who is recovering from involuntary proctology exam by the scambloggers for his market oriented “let them eat cake” approach to solving the problem, has come up with a new initiative, which he modestly calls “Lawyers for America.”

It would offer young unemployed or underemployed lawyers the chance to practice law serving an underserved community under the supervision of existing lawyers. One example: there are many thousands of small businesses in our poor and immigrant communities, including cleaning, housekeeping, gardening, construction and other services.  Many of these could be organized as LLCs thus shielding their owners from personal liability. This requires legal help.  These entities could use other legal advice as well. A legal service organization would be established in major urban areas that could provide these services.

The supervising lawyers could earn CLE or pro bono credit for their time. The law students would be provided a stipend for living expenses and more importantly would earn credits for debt relief. Every year of full time service would earn them 20% cancellation [sic] of their outstanding debt.

“Practice-Ready” is Not Enough. Despite the rebukes often received from the practicing bar, for most law schools an emphasis on “practice-ready” skills will be insufficient to cope with the structural changes occurring within the legal industry. Granted, it is true that better skills training will enable law school graduates to better compete for the finite number of traditional legal service jobs that will be available in the years to come. But, to be blunt, in a world that is getting pulled in Susskind’s continuum from bespoke to commoditized, practice-ready skills training will not change the total number of traditional legal jobs available to law school graduates. Moreover, one of greatest dangers of the “practice ready” solution is that we law professors will too readily conclude that we don’t need to leave the building—that is, engage with profession and the industry— to find a solution. Our schools would just need to hire more clinicians. Yet, this is a very expensive solution that fails to address the longer-term systemic employment problems.

Via Turley, the story is troubling on more levels than I could imagine.

[Christina] Eilman was arrested and held overnight after she was found behaving strangely at Midway Airport. She was having a bipolar meltdown. She continued to display obvious signs of mental illness when the police simply released the former UCLA student into the high-crime neighborhood around the Wentworth District police station. She was wearing short shorts and a cut-off top and was near the exceptionally dangerous Robert Taylor homes project.

[S]he was kidnapped and raped before she fell from the seventh floor of a public housing apartment building.

The fall from the building left her with a devastating brain injury and several broken bones, including a shattered pelvis. She now requires around-the-clock care.

The Chicago Police Department settled the case for $22.5 million after six years of fighting it. While in police custody, her parents told the police that she was bi-polar, making the situation sufficiently outrageous that even 7th Circuit Judge Frank Easterbrook noted :

Eilman was in an acute manic phase. She did not tell the police about her mental-health background, however, and was uncooperative after her arrest—sometimes refusing to answer questions, sometimes screaming, sometimes providing false or unresponsive answers. Phone calls from her mother and her stepfather told officers in Chicago that Eilman had bipolar disorder, but the officers did not believe the stepfather (they thought that the call was fake), and the officer who took the calls from Kathleen Paine, Eilman’s mother, failed to tell anyone else or record the information in Eilman’s file. While Eilman was in custody, some officers thought that she was just being difficult, some thought that she was on drugs (expert reports relate that methamphetamine could cause similar symptoms), some thought that she was no worse than the run of loud and uncooperative people who don’t want to be in custody, and those who thought that she needed mental-health care were ignored or overruled.

Inherent in the fault is pretty much every trope and prejudice that is typically used by the police against defendants. High crime area. The implicit assumption that a white girl in somewhat revealing clothing is almost certainly a target for rape by black men in the projects.  And that’s exactly what happened, this time.

The police should have known that the woman in custody was suffering from mental illness, but that would have required them to both think and care. The only time those two things happen simultaneously is when it personally affects a cop. If a police officer had scraped his thumb during her capture, you can bet the farm that he would have been taken straight to the hospital.

That they could chalk up this crazy white girl to just another druggie, another pain in the ass, was sufficient to absolve themselves of any concern for the person in custody.  She hadn’t done enough wrong to get anyone a medal for arresting her, and was too much trouble to keep around.  Just get rid of her as quickly as possible, and so they did.  She signed off an a personal recognizance bond and walked out of the stationhouse. 

This raises some questions that aren’t as easily answered.  While Eilman should not have been arrested or released, as she was suffering from a manic phase of mental illness that a reasonable person would have believed required medical treatment, was it wrong to let her walk out of the stationhouse and into the “high crime area” of the projects?

The gut reaction is that this was just inexplicably stupid, lazy and dangerous. The cops, of all people should have known the risk they were subjecting her to, particularly in light of her mental state.  Would it be different if the ghetto was comprised of fine single family houses occupied by white families?  See the problem?

Are we to assume, as a matter of law, that it’s negligent, if not reckless, to let a white girl in a shirt that exposed her midriff stroll into a poor black neighborhood?  Why is that? Are poor blacks so likely to rape white girls? Mentally ill girls? Girls wearing shirts that expose their midriff?  How much prejudice belies the assumptions that make the conduct of the Chicago police monumentally stupid?

There is, of course, a far clearer answer to the wrong done to Christina Eilman by the cops. Having taken a person into custody whose mental state, for whatever reason, was insufficiently stable to be able to negotiate her way to safety, the police assumed a specific duty to make sure she was not harmed upon her release.  They could have taken her to the hospital. They could have returned her to the airport, where they found her, though that would have accomplished nothing. They could have told her parents, with whom they spoke (and note how well the police document stuff that doesn’t suit their need to convict), to come get her or make arrangements for someone to get her as she could not be safely released on her own. 

There were options. The police used none of them. Instead, they did what was easiest for them, which was nothing to assure the safety of an unstable person in their custody.

But, the harm that gave rise to a $22.5 million settlement was the rape and brain damage that followed her fall from a seventh story window after the rape.  Was that foreseeable?  Should it have been foreseeable?  In the real world, the answer is probably yes, but then we concede things about ourselves and our society that we spend an awful lot of time denying.

This all could have been avoided if the Chicago cops had made the slightest effort to care for Christina Eilman’s safety and welfare. 

Lance Armstrong took performance enhancing drugs. He said so, so we know, even though everyone was certain before he came out with Oprah. The  New York Times reports:

With Winfrey, he lost his icy stare and buried his cutting words. Looking nervous and swallowing hard several times, he admitted to using through most his cycling career a cocktail of drugs, including testosterone, cortisone, human growth hormone and the blood booster EPO.

He called his doping regimen simple and conservative, rejecting volumes of evidence by the United States Anti-Doping Agency that the drug program on his Tour de France-winning teams was “the most sophisticated, organized and professionalized” doping scheme in the history of cycling.

He said that he was not the kingpin of the doping program on his teams, as the antidoping agency claimed, and that he was just doping the way the rest of his teammates were at the time.

He said he had doped, beginning in the mid-1990s, through 2005, the year he won his record seventh Tour. He said that he took EPO, but “not a lot,” and that he had rationalized his use of testosterone because one of his testicles had been removed during his battle against cancer. “I thought, Surely I’m running low,” he said of the banned testosterone he took to gain an edge in his performance.

When Robb Fickman was the president of the Harris County Criminal Lawyers Association, he did something that mattered.  He put his ass on the line by  taking a position that angered people in power, challenging a sitting judge who acted like a tyrant.  By doing so, he courted retaliation. Robb didn’t care.

The judge he grieved, Joan Campbell, is retiring,  Chron reporter Brian Rogers writes a glowing homage to this fine jurist for the time she wasn’t cruel and arbitrary, but instead did the job for which she was paid.  What a wonderful judge.  How good of her to be thoughtful in sentencing one defendant. When someone retires, graciousness dictates that we only remember the good, as if the bad never happened.

But Fickman chooses not to be gracious, just as he wasn’t afraid of the potential retaliation against him.   Mark Bennett questions whether Fickman’s strength and boldness has given way to a different perspective.

I say, “the criminal-defense bar’s view,” but of course there is more than one view represented in Harris County’s criminal-defense bar. Some criminal-defense lawyers—at least one of whom aspires to be the next president-elect of the Harris County Criminal Lawyers Association—would vocally disagree with Fickman telling the truth about Campbell. These lawyers take the position that “we should avoid making enemies” is a good excuse for not doing the right thing. They would rather give judges (metaphorical?) handjobs or kolaches than file judicial-conduct complaints.

You can catch more flies with honey than vinegar.

Robb Fickman is made of sterner stuff than the H&K crowd. He belongs to the criminal-defense wing of the criminal-defense bar. If something needs saying, Fickman is not going to be deterred by the fact that saying it will make him enemies.

Fickman is a real criminal-defense lawyer, and that’s what real criminal-defense lawyers do. By definition, the job requires bucking the opinion of the majority. When we are doing the job, we say the things that nobody wants to admit are true; we point out that the emperor has no clothes; we save Frankenstein’s monster from the mob. So the mob doesn’t much care for us.

After the first 36 hours following Aaron Swartz’s suicide, the internet was awash in commentary. While well-intended, perhaps, it was awful.  Simplistic, ignorant memes, fueled by confirmation bias and the burning desire to identify an easily digestible enemy and punish her, prevailed. It helped no one to assert, and spread, and persist in spreading, facile arguments neatly tied up in a black bow.

A few brave souls challenged the prevailing anger of the internet, of the Hacktivists, of the geek community, who demanded a villain who committed a singular act worthy of the rage.  That came in the views of former criminal defense lawyer, former federal judge, now Harvard Lawprof Nancy Gertner, and Agitator turned HuffPo writer Radley Balko. In contrast to the childish nonsense of Millhiser’s 10 Worse Crimes piece, these reflected not only a return to sanity, but thoughtfulness based on reality.

In the interim, Massachusetts United States Attorney Carmen Ortiz  issued a statement defending her office’s actions in the case, Silicon Valley Congresswoman Zoe Lofgren introduced an amendment to the CFAA, naturally called “Aaron’s Law” as the rule that every death requires a new law remains in full force and effect. 

In a bow to gestalt, the Hacktivists were certain that the persecution of Swartz was a product of Ortiz’s personal political ambitions. Similarly, they saw the law as criminalizing what they did every day, and thus needed changing. While there were kernels of truth to all of these beliefs, as there almost always are, it diverted attention from core problems that Aaron Swartz, and indeed, all criminal defendants, faced.  As I urged in my earlier post, this wasn’t just about Aaron. He was just one warm body in a system that sucked the life out of many.  That his body went cold made his case stand out.

Orin Kerr at Volokh Conspiracy wrote an initial post on the case about the  efficacy of the charges against Swartz.  No reasonably knowledgeable lawyer doubted the feds could stick the charges. Certainly, Aaron Swartz’s lawyers didn’t laugh them off as meritless. But given the breath of attention the charges were given by non-lawyers and lawyers unfamiliar with criminal law, it was necessary to spell it out.

In a second post, Orin attempts to deal with the far harder questions surrounding the  propriety of the charges as a matter of prosecutorial discretion.  The post is long and addresses some very difficult questions, and I can’t remember Orin ever treading so gingerly over tough issues.

I suspect he recognizes the volatility of the case, and respects the intelligence and integrity of those who will not be inclined to agree with him.  In a post like this, it is essentially impossible to not to have others disagree with at least some portion of his analysis. That he took this risk is worthy of respect, even though there will be no shortage of disagreement on points large and small. 

A few core themes have developed across the articles and posts of those who aren’t blinded by tears or anger, and these are the things that will hopefully transcend the ignorance spread to rally the troops whose concerns are limited to the prosecution of one person, the suicide of one person, and the enemy of one person.  Aside from the harping on half-truths and utter nonsense, there is a groundswell of recognition that the extant prosecutorial posture across this nation has seized too much power and that the system is rife with abuse. 

Yes, Carmen Ortiz had the authority to reign in her zealous prosecutors, and her failure to do so falls squarely on her shoulders.  Whether this was for any personal benefit or not is irrelevant, as prosecutors everywhere do exactly as she did every day, most of whom have no higher ambitions. It’s just they way they roll, even though it never interested the people before who now use laser-focus to find answers that make sense to them.

No, Aaron Swartz never really faced 35 years in prison. The stacking of counts happens in every case, and every federal crime has a statutory maximum, but that isn’t the way we calculate exposure. Ortiz says her office was going to recommend a sentence of six months upon a plea. Does that change a lot of minds about the risk? It should.

A fellow who was acquitted the other day spent a year in jail awaiting trial.  Near as I can tell, I’m the only who gives a damn. Is his life not as worthy as Aaron Swartz’s?  It’s an unfair question, of course. It’s not that his life is less important, but that he’s unknown and friendless. Aaron Swartz was well know and loved within his community. It’s only natural that his friends and admirers take notice. But notice without context creates a false impression, and that gives rise to mistaken assumptions about what happened to Swartz.  Such mistaken assumptions do no one any good and make no one any more knowledgeable.

The most controversial aspects of Orin’s post address the political nature of the case and the punishment.  There are two primary aspects that compel debate, whether Aaron Swartz’s open choice to engage in civil disobedience to further his beliefs was an invitation for punishment, and if so, what punishment was appropriate.  On the first, Orin contrasts the value of democratically enacted laws with individual political views, a paradigm that some (myself included) question because of a certain lack of faith in the concept of democratically enacted laws. Any attempt at further discussion of this point would go on at great length, so it will have to wait for another day.

However, Orin contends that those who engage in civil disobedience do so with the intention of being punished, the punishment being the means by which they protest the status quo and bring their issue to the attention of others. While I agree that they intentionally risk punishment, I can’t adopt the view that they seek it. The purpose is well-served by letting others know that they’ve bested their adversaries and challenged the status quo.  Imprisonment isn’t necessary to accomplish their purpose.

As to what purpose is served by punishment, which is a necessary precursor to what punishment would fulfill that purpose, I have no answer worthy of your time to read. That the discussion has moved beyond the nonsense is what matters, and that people are thinking about real questions with real information in an intelligent way is what makes this discussion worthwhile.

Aaron Swartz’s death is a tragedy, but not the only tragedy.  Honor him by doing what he did in his life. Think hard. Stand for something.  Act upon it.

Note: While many readers aren’t particularly interested in the problems facing new lawyers, I am, as I believe their problems to be integral to problems facing the profession as a whole.  For those unaware, a great many law students and new lawyers read Paul Campos’  Inside the Law School Scam and Above the Law . They don’t read SJ, and many who do find it less than hospitable or sympathetic.

Much as I may be critical of those perceived to be the “enemies” of young lawyers, I’m similarly critical of the young lawyers as well. They can’t handle criticism, and have no use for introspection. Yet, they matter, and so I persist even though many of you ask me to stop writing about the profession and write only about the practice of criminal defense or the evils of its hated enemies. Tough nuggies. I write about what I want. Get over it.

Campos  posts a letter received by a new lawyer who, apparently, has decided that the best place to cut his teeth is criminal defense. What a shock. This should strike fear in the hearts of many here:

Your comment about the 25-year-old nervous defense lawyer really struck home for me.

I wanted to suggest that you write a post about the result of the flood of new lawyers, especially in urban areas like New York City, with huge debt and growing desperation. I will admit that eight months ago, when I showed up to my first court date with my first client, I almost crapped myself. No amount of Mock Trial, Moot Court, public speaking, or internship shadowing can prepare a new lawyer for showing up to a simple court date without knowing a damn thing about what to do. I read an entire practice guide, just to show up and turn in a basic omnibus motion. When the judge asked me questions, I just nodded my head.

The judge and prosecutor knew that I was green. They both had a similar expression on their face: something between annoyance and pity.

What unmet need was filled here?  Nowhere is it mentioned that this young lawyer stood beside a person who thought he had a lawyer defending him. Heh. Silly person.  To his credit, the writer at least recognized that he was clueless. To his discredit, he “just nodded [his] head.” One can only wonder what rights he waived.

In response to the post about Judge Kane’s fix, a commenter asked, and pursued with vigor, the only question that seems to matter to young lawyers: What can you do for me? The thrust was to find an “answer” to the problem of young lawyers who are nowhere near client-safe but need to do something with their diploma.  The problem is that there are two flaws in the question.

The first flaw is that there is “an answer.” There are a thousand answers, none of which will necessary work for any individual and none of which will work for all. The notion of an answer, whether magic bullet that will make all their nightmares disappear, or even a long-term, hard-fought solution that will guarantee the future they so desperately desire, is misguided.

Even when times weren’t nearly as tough as they are now, there was no answer. Every law school graduate made choices, found the path he or she thought was right, and gave it a go. Some succeeded. Some didn’t. The idea that there was a time when every law school graduate achieved comfort and respectability is nonsense. The dead bodies of unsuccessful and miserable law school graduates have always littered the road. There are just more of them today.

The second flaw is that there should be an “answer” that addresses the needs of young lawyers, disconnected from the rest of the legal profession. The legal profession does not exist to provide law school graduates with something to do during the dan and enough money to pay off their loans and get a happy hour beer. It exists to serve clients. No matter how desperate young lawyers may be about their circumstances, their plight always remains secondary to the needs of clients. 

A  comment to Campos’ article also strikes a curious note:

I do not understand the vitriolic response to a solo practice. People in this forum make it seem like being a solo is deplorable. I started a solo practice about a year and a half ago after I was sick and tired of doing document review. I went to a T-30 law school. My first year of practice was grueling and I made a lot of mistakes. Lucky I did not try any major felonies until I got a lot more experience. However, I learned.

Well, it’s not like he tried any major felonies until he had a clue, right? But in fairness, he offers this astute clarification:

Judges could tell I was brand new and helped me along. My first few clients understood I was new and they were taking a chance on me.

There is a place for clients to take risks with their lives by entrusting them to rookies, provided they understand the risks they are taking. Mind you, the kindness of judges isn’t exactly a substitute for the competency of counsel, and while clients may understand that a lawyer is new, they may not appreciate the implications of that fact.  After all, new lawyers pass the bar exam, and are thus declared competent by the state, right? Right?!?

But then, the commenter goes and blows it with this assertion:

Young Solos need the experience so they will get it at the expense of their client, but how is that any different from a first year associate getting their experience at the expense of a large corporate client’s war chess.

The inability to understand the distinction, that the experience of a young solo is nothing at all like the experience of a first year associate in a big firm, is disconcerting enough.  The assertion that a baby lawyer’s need for experience properly comes at the expense of a client, however, is the stuff of nightmares.

How to become client-safe is a damn good question, for which there is no simple answer.  I am a strong believer in mentoring, where young lawyers develop close relationships with more experienced lawyers to help guide and mold them so that they are not a walking, talking, head-nodding fiasco. But even that won’t work for everybody. There is no sure-fire answer.

But that never means that it’s acceptable that a young lawyer’s desire for experience comes at the expense of clients.  Nothing about what we do comes at the expense of clients, or there is no reason for lawyers to exist at all. Does that mean you waste your money on law school tuition? If you don’t care to be client-safe, then it does.

It wasn’t a big story, buried on page A25 of  Newsday’s dead tree version, but it still spoke volumes. Ann Givens writes:

A Nassau jury has acquitted a Lynbrook man on charges that he raped a woman during a home invasion and robbery last year, lawyers said.

Wiseallah Hightower-Castro, 25, of Starks Place, was acquitted of all the charges against him, including first-degree rape, committing a criminal sexual act, robbery, burglary, criminal use of a firearm, assault and criminal possession of a weapon, his lawyer and a spokesman for the Nassau district attorney said.

He has been in the Nassau County jail for a year.

Defense lawyer Joseph Hanshe, of Sayville, told jurors that police had falsified a written confession by his client. Hanshe also said that the victim in the case had failed to properly identify Hightower-Castro as the man who attacked her.

Aside from these four graphs, the rest of the story came almost straight from  the original story about the arrest of the defendant.  Even within the second paragraph, the recitation of each charge emits the same stink of accusation, tying Hightower-Castro to the rape, as if he was convicted.  Name + Charges = Taint

But the inherent bias is palpable when Givens later writes:

Hightower-Castro was arrested in January 2012 after police said he and two other men forced their way into a Grove Street home while a 22-year-old man was visiting his godmother there.

The other two men were never found.

No, no, no. The three men were never found, because the one man they did find was the wrong man.  He was acquitted, Ann. Acquitted. That means he was not the man, and hence there can be no “other two men,” but only all three men.

And why recount the police accusations or Hightower-Castro’s arrest?  Why recount the details of what the defendant was alleged to do in a story about his acquittal?  Instead of a story about a false confession and bad identification, this was a story repeating all the ugliness of the crime connected to the criminal who got away with it.

Granted, Wiseallah Hightower-Castro has a name that many of the readers of Newsday will find troubling, almost criminal in their prejudiced views toward anything relating to Allah.  Sure, he looks pretty darned criminal-like, being a young black man, more than sufficient for many readers of Newsday to convict on that basis alone.

Mind you, this happened in Nassau County, Long Island, not a place where acquittals come often or easy.  The fact that a jury acquitted someone alone is pretty big news. The fact that a jury acquitted on the basis of a false confession should be huge. That it was a false confession combined with a mistaken identification should be monumental. 

At the very least, Newsday should have run a quarter page photo of criminal defense lawyer Joseph Hanshe for his work on this case. He deserves no less.

But what I suspect happened is that Ann Givens was told to write up the story in ten minutes, with a line or two of information about the acquittal.  And so, she cribbed from the original story to fill the allotted space, and gave it no more thought than she would if she had to pick off the fast food dollar menu.  Maybe less.

So Wiseallah Hightower-Castro is no O.J.Simpson? That’s true. But he is a human being who was accused of a heinous crime and, after trial by jury, found not guilty.  He is a human being who spent a year in jail awaiting trial, after which he was found not guilty. He is a human being who was arrested, charged and held because of a false confession and a mistaken identification, and found not guilty.

That’s pretty big news. It’s big to the defendant. It’s big to all of us.  Even when the defendant isn’t a celebrity, or a well-known member of the community, or a politician, or white.

No one can give him back the year he lost in jail. No one can give him back a reputation untainted by allegations of rape and robbery.  But someone could have given him the dignity of a public acknowledgement that he endured the legal system and prevailed, with sufficient emphasis on how the defendant was the victim of a false confession and mistaken identification.  Ann Givens could have done that. But she didn’t. Not even close.

And no, it is not accurate that the other two men were not found, Ann. That’s the whole point of an acquittal. Sure, the crime and arrest are far more salacious than the acquittal, and pander to the passion and prejudices of Newsday readers. But the acquittal would have made a damn fine story too, if only anyone put in the time to make it so.

But then, take a look at Hightower-Castro’s mugshot. Who cares about this guy. After all, if they didn’t convict him this time, they’ll get him next time, right? Isn’t that the assumption about all young black men?

The Sixth Amendment to the United States Constitution provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries.