In reversing the 17½ year sentence imposed on 53 year old construction company owner William Irey, the 11th Circuit called it “far beyond the heartland of depravity.”  Irey’s conduct was “horrific”.  The Orlando Sentinel describes his crimes:

Irey engaged in “sexual torture that went far beyond the heartland of depravity even for child molesters,” the appeals court ruled. The court said Irey created “some of the most graphic and disturbing child pornography that has ever turned up on the internet.”

Irey took the photos while he was in Cambodia, where, the court said, he preyed on vulnerable, poverty-stricken girls, had sex with them, sexually tortured them and wrote obscene, degrading words on their bodies. Investigators found more than 1,200 images on his computer.

The 11th Circuit, en banc, held the sentence substantively unreasonable.

In light of 18 U.S.C. § 3624, Irey will likely serve only 15 years and 3 months of his sentence, which works out to less than four months for each of those 50 victims who can be distinguished from each other in the images that show some of Irey’s crimes. And that calculation does not include any time for Irey’s additional criminal behavior of producing and distributing the massive amount of extremely graphic child pornography. Four months per child raped, sodomized, and tortured is grossly unreasonable. In sentencing there should be no quantity discount for the sexual abuse of children.

We realize that 17 ½ years, even when reduced to 15 ¼ years to serve is, as the panel stated, “a substantial portion of a human life—and no serious person should regard it as a trifle.” … Irey, after all, sentenced the children he raped, sodomized, and sexually tortured to a lifetime of harm, and the egregious child pornography he created and distributed will, because he uploaded it to the internet, continue causing harm for far longer than 17 ½ years. Irey’s pink wall series will last longer than his own lifetime or ours, inciting and encouraging the sexual abuse of multitudes of children yet unborn.

Put differently, they just couldn’t take the idea that Irey would walk out of prison one day.  David Markus does an excellent job of parsing the dissents at Southern District of Florida Blog.  On the law, the dissents clearly have the legal upper hand.  But this wasn’t a case decided on the law, but on how much depravity a gaggle of judges could take.

The aspect of this case that gives rise to this post is Irey’s posting the images of his conduct, sexually torturing girls as young as 4 years, on the internet.  This is the nexus between those who commit such atrocities and those who view them.

Certainly, there are defendants rounded up in the sex offender hysteria who don’t tread anywhere near the line of depravity that begins to justify either the harsh sentences imposed or the ruined life caused by the sex offender registry.  Where, along that spectrum, does the person fall who repeatedly views and/or downloads the images that someone like Irey posts?

In the course of a discussion of the hypocrisy surrounding sex offender hysteria, Norm Pattis wrote something that gave me pause.

Don’t get me wrong: I don’t think that possession of pornographic images on a computer makes a person a sex offender or a danger to society.

It’s not clear to me what Norm means by pornographic images.  In the post from whence this sentence came, it referred to child pornography, and so I accept that as its definition.  Like Norm, it’s unclear to me that viewing images of child pornography is a an inherent gateway to committing the acts depicted.  In fact, I suspect that its cathartic for some viewers, giving them the visceral reaction without having to ever touch a child.

But somebody, somewhere, did commit an atrocity on a child.  And to some greater or lesser extent, that there are others who get off on this depravity contributes to it.  I put aside, for purpose of this discussion, my personal revulsion at the idea that anyone could find it acceptable to view the rape of a four year old.  Only a fundamentally diseased mind could derive excitement or pleasure from an act so disgusting.  How a person could not vomit from viewing such an image is beyond me.

Clearly, viewing an image is different than engaging in the acts depicted.  The revulsion that I, and others, feel on the subject notwithstanding, it’s unduly facile to tie the two together merely because we’re disgusted by it all.  As Irey’s conduct went far beyond the heartland of depravity, viewing the product of his conduct is a world apart from engaging in the conduct itself. 

Yet it’s not okay.  To some extent, a monster like Irey connected his depravity with sharing images on the internet.  It motivated him and compelled him to take something awful and horrific and spread it around like the most virulent cancer possible.  It infected others.  Does that mean that others will rush out to sexually torture four year olds?  Hardly, but if one viewer gets it into his head that if Irey can do it, so can he, then it’s one too many.  There is no child, here or elsewhere, who should have to endure rape and sexual torture.  There is no excuse for any child to be put at risk.

This is not to suggest that either the harsh sentences being imposed on those who download child porn are proper, or that the vast array of conduct that has been wrapped up under the sex offender rubric is justified.  Those are entirely different issues.  What I do suggest, however, is that the viewing of child pornography is very wrong, and criminal.  This isn’t a moralistic challenge, but a line drawn prohibiting harm done to children.

Sorry, but there is no reason why anyone need encourage the conduct of a person like Irey by viewing their images on the internet.  There is no reason why any person should be permitted to view or download images of the rape and sexual torture of a child.  It is a crime and it should be a crime.  And it’s completely, totally sick.  There is no justification for it whatseover.

We may be criminal defense lawyers.  We may argue the disproportionality of sentences for crimes.  We may stand against the mindless expansion of crimes to encompass conduct that doesn’t belong there.  But some things are wrong.  This is wrong.  There should never be such a thing as a heartland of depravity.

Antonin Pribetic, The Trial Warrior, twitted about an article on Social Validation and what it means for social media marketers.  The lede said:

Psychology Today published a September 2009 piece titled The Theory of Social Validation, which boils down to the fact that “you’re not great until someone says you are.”

I had a flashback to Adrianos Facchetti  writing for the nattily named Blog for Profit, vehicle of a lawyer disbarred for raiding an infants trust to teach other lawyers to be as successful as him.  Adrianos’ point was how he became acknowledged as an overnight expert because Google said he was.  This was part and parcel of what the marketers taught, to fabricate an existence, an expertise, and have others praise you for it.  And so you are.

It caused me to ponder my great failing for having neglected this lesson that others around me learned too well.  My failure to capitalize on search engine optimization, while others who stumbled into the blawgosphere minutes ago will appear higher on the Google page due to artful language and linking, was a clear indication of my failure to grasp the power of social media.  But it’s nothing compared to my failure to become an integral member of a tribe.

This was brought home by a comment from a fellow blogger, Scott Henson, the other day.  In a comment at best tangentially related to the post, Scott, better known by his blog name, Grits for Breakfast, wrote:

With respect, you’re a very smart person who has occasionally posted stupid things about others, particularly sweeping generalizations about young people based on snippets from blog posts, blasting anyone who thinks it’s the wrong approach telling them this is not the “Happysphere.” I largely agree with the point of this post, but perhaps you’re not the best messenger?

Putting aside his mixing of my posts about the Slackoisie with my posts about the Happysphere, I was surprised by Scott’s comment.  I emailed him after responding, asking if there was a particular reason why he chose to pick a fight with me.  I’ve got no beef with Scott, who has done yeoman’s work keeping tabs on Texas criminal law doings, even though he’s not a lawyer.   That he disagreed with my views on either the Slackoisie or the Happysphere was inconsequential. Plenty of people don’t see it, and that’s why I write about it.  Nor do I care about his characterizing my message as “stupid”, a reference to a line I had used in my post in a different context. 

It was the underlying message that disturbed me.  I would be a better messenger if only I was more of a team player.  Stick with the program, Greenfield, and stop telling the tribe that they aren’t wonderful.  As the blawgosphere ebbs and flows, many are young and new to the law and criminal justice.  Some bear the indicia of the Slackoisie, narcissism and entitlement, and most seek social validation, to be told they are “great”.  If only I fed them what they want to hear, they would love me in return.  Then they would willingly heed my message.

Why anyone cares what I think of them is beyond me.  Are they that fragile?  Who am I that anyone would give a hoot about my approval?  Or disapproval, for that matter?  As Mike Cernovich  recently wrote,

Until I have given you love or respect, you have no power over me.  I therefore care not what you say.  

I have no power over anyone in the blawgosphere.  If something I write hurts someone, its a product of their giving my words power over them.  I can’t hurt anyone beyond the power they attribute to me.  If what I write is “stupid”, as Scott says, then why would anyone feel badly about it?

So the answer, it appears, would be for me to embrace the Happysphere, write nice things about others on the team, or at least never speak ill of them.  When someone writes something particularly idiotic, find some positive spin to make them feel appreciated (Joe’s post spelled every word correctly, even the ones with more than two syllables), or at least give them the insipid “great post” no matter how worthless it is.  By doing so, I could ingratiate myself with other members of the tribe and bask in their warmth and comfort.

But this isn’t why I’m here. 

If there’s any legacy I hope to see as an offshoot of my posts, it’s that I was always an honest broker.  I wrote the truth as I saw it.  I called them as I see them.  For better or worse, I wrote what I thought.  Not that I was necessarily right, but that I never spun to curry favor or appease the tribe.  Marketers call this “being genuine.” They wouldn’t know genuine if it bit them in the ass.  Genuine is when you’re willing to have your natural allies call you stupid because you won’t stick with the program. 

I can’t tell you how many opportunities I’ve missed to gain the adoration of others on the internet.  From young lawyers, to bar association “leaders”, to those maligned by the criminal justice system.  I’m constantly tested to show them approval, what one law student told me was “respect” when she demanded that I acknowledge her worthiness.  It would be so easy to blow smoke up a multitude of butts, and I’ve no doubt that my show of deep approval for them would return to me in spades.  What’s so hard about telling people that they’re great, even if they aren’t?  It would make them feel very happy, like when you say “good job” to three year olds.  The smile on their faces could light up a room. What’s wrong with that?

It’s just not true.  And they aren’t three years old anymore.  Of course, if you don’t make others happy, they won’t tell you how great you are.  And that’s what social validation is all about.

There is no doubt in my mind that I could be much nicer to others, more agreeable to the tribe and stop writing things that don’t comport with the party line.  But if I did, I would disappoint myself and fail to be the honest broker I hope to be.  No matter what anyone wrote about me on the internet, I would not be “great”.

Over at Defending People, Mark Bennett rehashes an old argument about the nature of the ethical responsibility of the criminal defense lawyer. The underlying argument is inconsequential. Not only has it been discussed before, but the counterpoint is so completely meritless as to render it unworthy of mention.

When he posted, I asked him why he was raising this nonsense again. He replied that there are new lawyers in the blawgosphere, and they should be made aware of the problem. He has a point. Even though these issues have been thoroughly discussed, new readers won’t know about it or participate in it. From the blawgers’ perspective, this is old news, been there, done that-type stuff. From the new readers’ perspective, it’s hot off the presses.

In gently chiding the counterpoint, Bennett offers this comment.

Ah, you crazy kids, with your contempt for the wisdom of those who have come before you!

This is a lesson worth repeating. There’s an awful lot of accumulated wisdom to be found in the blawgosphere. Lessons learned, often the hard way, by lawyers who came before.

The gut reaction is that new lawyers have new ideas, and why should they be constrained to adhere to old school notions. Thinking outside the box is a mantra for many, and it’s a worthwhile concept that can produce great ideas and approaches. Some will view Bennett’s comment as the typical old lawyer reaction to anything new.

This misapprehends the point. No one, neither Mark nor I, is trying to tell new lawyers not to think new thoughts, raise novel questions or consider interesting ideas. Not at all. Thinking outside the box is how we arrive at better, more effective ways to do what we do. It’s something to be encouraged and attempted, whether by new lawyers or old.

The point, however, is that not every new idea is a good idea. Indeed, not every new idea is new. There’s a natural tendency to become unduly enamored with one’s ideas, a sort of pride of ownership. Everybody wants to invent something newer and better, whether it’s a mousetrap, a defense or just an idea accepted by others. But there’s really very little new, and coming up with something truly new, and actually good, is both difficult and extremely rare. Most of us will never do so.

While there’s nothing wrong with raising a novel idea, there is something very wrong with those who can’t let go of their own brainstorm after it’s been thoroughly and completely debunked. Part of growing up is accepting that the idea is wrong and letting go.

Mark’s comment is directed toward the inability to recognize that the time has come to give up some unacceptable notion that’s been floated and rejected, with extreme prejudice. That’s the ‘”contempt” to which he refers, that reaction to “old timers” like Mark, like me, that our refusal to acknowledge the brilliance of an idea is symptomatic of our clinging to the past, our old school ignorance, our inability to appreciate the visionary.

There seems to be a growing contempt for experience in the blawgosphere. Plenty of people with either peculiar political views that color their idea of what it means to be a criminal defense lawyer, or the self-serving notion that things are different now and they won’t be constrained by the past. Screw George Santayana. Screw Dunning-Kruger. Screw experience.

Yes, it’s worse to be an old fool than a young fool, but it’s better not to be a fool at all.

A number of people have asked me why I haven’t jumped into the underlying argument that Bennett’s post addresses. The answer is plain, that I’ve already addressed it a few times and said what I have to say. Despite demands that I continue to engage in arguments with every kid who decides to persist, there’s no bone in my head that compels me to continue to argue just because some young buck decides to challenge me.

Here’s the harsh news from this mean old man: You’re wrong. There’s no issue. Your inability to accept the accumulated wisdom of those who came before you doesn’t make you right, just stuck. In some instances, it even renders you a danger, someone who has no business holding the lives of others in your hands. Sorry if that makes you sad, but the world didn’t come into existence the day you decided to show up.  No doubt there will be comfort to be found amongst other lawyers to soothe your fevered brow, but not here.

As anyone who has ever skimmed criminal defense lawyer websites is painfully aware that every one says the lawyer is “experienced, aggressive and caring.”  We must be the most amazing bunch of lawyers ever, since there’s not loser in the bunch. Or so it seems.  Obviously, some are completely full of it, whether because their experience consists of 3 years in a prosecutor’s office or 12 minutes in the trenches copping pleas.

A problem arises from callers who want to know whether the lawyer on the other end of the line has the goods.  Some, like this caller, ask a bunch of questions, but many just want to tell the lawyer their side of the story, get a supportive reaction and a fee that matches their pocketbook. 

The burden then flips to the lawyer.  Surprised?  Most are, since there’s a tacit understanding within the bar that if a client is willing to pay you money, you’re golden.  But what of the lawyer who takes on a case they aren’t equipped to handle?  Sure, you’re a criminal defense lawyer (and some are simultaneously real estate lawyers, according to the caller’s needs), but there are some areas of criminal law that require specialized knowledge to be effective.  One such area is DWI.

I’ve never done a DWI case.  When a call came in on a DWI, I would refer it out.  I’ve got no expertise with the Breathalyzer 5000, or the sobriety tests used, or blood alcohol content.  I know some other lawyers who are incredibly knowledgeable about these things, and they can provide a great defense whereas I would be incapable of providing a defendant the defense he deserves.  If I was interested in DWI cases, I would work with these great lawyers and learn from them.  I’m not, so I’ve never done so.  I’m more than happy to send these clients to better hands.

These days, however, lawyers aren’t always inclined to take a pass at a paying client.  Business is slow for many, and passing up a fee isn’t something that they’re inclined to do.  One lawyer has written about his taking on such cases, despite having no experience in handling them.  He touts that he’s reading a book to learn how to do DWIs  While it’s better than going in blind, it raises some hoary questions.

It’s impossible to gain the experience and knowledge necessary to provide effective assistance of counsel by reading a book.  This may be the best one can do, say when a client in a rural area lacks access to a lawyer who is competent to defend and the only lawyer in town lacks the experience to handle the case.  In that instance, an inexperienced lawyer is better than no lawyer, and a book is certainly better than nothing.

It may be that the defendant can’t afford a competent lawyer, and the one he’s chosen has fully disclosed that he’s never done a DWI case before and plans to cut his teeth on the client.  If the client is cool with that, appreciating that he’s getting a DWI virgin and willing to take his chances, it’s acceptable.  Less than optimal, obviously, but at least there’s no deceit.

But as we know from the wealth of “experienced, aggressive and caring” lawyers on the internet, not everybody is playing fair.  Honesty can be bad for business.  The surest way to lose a client is to tell them that you’ve never done a case like theirs, which requires specialized knowledge, but would sure like to give it a shot on their dime.  Tell the client not to worry, you’ll read a book.  See how happy that makes them.

There are ways around the problem.  Refer the case to a competent lawyer and co-counsel up to learn her ways is the best idea.  Read the book as well, but don’t expect a book to substitute for life in the trenches.  Somehow, things never quite work out the same in real life as they do in books (or CLE war stories, for that matter).  Chances are that you will need to do it a few times before you’ve got the chops to do it well.  That’s the price of competence, no matter how experienced you claim to be on your website.

A story I’ve told here a few times is instructive.

A few years back, I had an evidentiary hearing before Judge Kimba Wood in the Southern District of Ne York.  It related back to a New Jersey case, where the defendant had taken a plea to some relatively inconsequential felony offense and was given probation.  The problem was that he was on life parole in federal court at the time, and the Jersey lawyer neglected to mention that he was going to get banged by the feds despite his probation in New Jersey when he advised him, STRONGLY, to take the plea.

The Government put the Jersey lawyer on the stand.  He spoke eloquently of his many years of experience as a criminal defense lawyer, and his determination to advise his client, now my client, to take the deal.  On cross, I asked the lawyer to tell us how many felony cases he had tried to verdict before a jury in his long and illustrious career as a criminal defense lawyer.  He was silent for a while.  He looked up at the ceiling, deep in thought.  He looked down at his fingers, toes and some other part of his anatomy that was concealed by the rail.  A few minutes went by in silence.

Finally, I asked him again, please tell us how many.  He looked at me with venom.  Very softly, he answered:  “None.” 

Of course you need the business.  Of course you want the money.  But that’s not good enough.  If you can’t handle the case, taking it is completely unethical.  And there is no excuse for lying to a client about having vast experience.  When you blow the case, it’s not you who suffers the consequences. 

No matter how good the book is, if you have told your client the truth, you’re wrong to take the case.  No matter how many hugs you get from your fellow lawyers who feel your fiscal pain, there is nothing that will make your inability to defend a client less of a disgrace.

Radley Balko posts about another arrest, forced by the hand of a potentially vicious woman who refused to obey the reasonable order of a police officer who feared for his life.  And her name was Greenfield.  Melissa Greenfield.

When a deputy sheriff began questioning Melissa Greenfield’s boyfriend at a Delaware County truck stop, she began recording video with her cell phone.

She never thought that she, or her phone, could be viewed as a danger as she documented the activities of public employees in a public place.

“I’m a 115-pound, 20-year-old girl wearing a cervical collar with nothing but a cell phone. I was not going to harm any officer,” Greenfield said yesterday.

As if every police hater announces their intentions beforehand.  Of course this Greenfield woman says she’s harmless.  They always do.  But then, what about the weapon?

Sgt. Jonathan Burke wrote that he repeatedly ordered Greenfield to place the “unknown” object in her pocket and keep her hands free. When Greenfield refused, she was arrested and charged with obstructing official business and resisting arrest.

Burke wrote in his report that he feared that Greenfield could have been holding a dangerous object such as a “cell-phone gun”…

“Not knowing what the item in her hand was and having prior knowledge of all types of hidden weapons, including a cell-phone gun, I asked her several times to place it in her pocket and to keep her hands free,” Burke wrote.

Perhaps Sgt. Burke should have waited for the muzzle flash before taking reasonable precautions to protect himself?  Sure, why head off a deadly threat beforehand when you can wait for the slug to approach your chest?

The Columbus Dispatch carries the rest of the defendant’s beef:

After Greenfield got her phone back, she said, the video she took of the deputies at the Flying J truck stop at I-71 and Rt. 37 on July 9 had been deleted, along with a couple of vacation videos.

Deputies did not delete any video, Davis said. A warrant would have been required to search the phone, and one was not obtained, he said.

Obviously, since there was no warrant obtained, the police couldn’t have had any connection with Greenfield’s video mishap.  But then, as we are all well aware, it’s a cellphone, not a video recorder.  It was never made for that purpose in the first place, and it’s really beyond the pale for this Greenfield woman to expect there to be no malfunction.  It was like begging for trouble, something she apparently does on a regular basis.

In Delaware Municipal Court on July 13, Greenfield’s public defender deemed it “ridiculous” that she might have had a cell-phone gun. Greenfield, who lives in Poway, Calif., pleaded no contest to obstructing official business. She was fined $20 and released with time served: three days in jail. The resisting-arrest charge was dropped.

Naturally, her lawyer called Sgt. Burke’s very real fear for his safety “ridiculous”.  After all, what would a public defender care if a cop’s life was lost to a cellphone gun?  But you’ll notice how tucked away at the back of that paragraph is a little detail, that the Greenfield woman pleaded to obstructing official business?  Why, was there a cellphone gun to her head?  So we have another admitted criminal trying, after the fact, to smear the hard-working police officer who wants only to survive long enough to make it home for dinner.  Wow, doesn’t that make him evil.

It should come as no surprise that the criminals are trying to hide the old videotaping the cops claim, while our police officers continue to work the streets to keep us safe and protect themselves from that old terrorist favorite, the cellphone gun.  And naturally, this criminal is some gal named Greenfield.

It’s described in the Chicago Sun-Times as “unusual”, but that’s nonsense.  It’s unheard of.  Until now.  The Tribune does a better job, calling the hostility between Chief Judge James Holderman and United States Attorney Patrick Fitzgerald “extraordinary”, though even that fails to capture the situation.

The “relationship” between the two is described as hostile.  Since when do U.S. Attorneys and federal judges have relationships?

Fitzgerald has had issues with Holderman’s temperament. In 2005, the judge ordered a misconduct investigation of the U.S. attorney’s office by the U.S. Department of Justice’s Office of Professional Responsibility. In response, Fitzgerald countered that Holderman had been openly hostile to prosecutors.

At that time, the federal appeals court ordered a halt to the judge’s inquiry and noted respectful relations between the bench and prosecutor were vital.

Apparently, respectful relations involving others in the courtroom, say, oh, criminal defense lawyers, don’t merit a mention.  But that’s all in the past.  This time, the mid-trial blow up caused Fitzgerald to stop the trial of an accused Columbian drug dealer to go cry to Judge Richard Posner at the 7th Circuit that Holderman was being too mean to the government.

Before the trial started July 6, Holderman excluded evidence of two fingerprints on drug packaging because the prosecutor had violated a court deadline for evidence gathering. The federal appeals court reversed the ruling, saying the exclusion was too harsh a penalty for missing a deadline.

Yet during the trial, Holderman found problems with the reliability of the same fingerprint evidence. He notified the prosecutors, prompting them to file an appeal with the appeals court July 14. Holderman responded in court papers that he had not made a final decision.

On July 22, the judge definitively excluded the evidence, leading to another trial stoppage. In the petition, Fitzgerald said Holderman had accused multiple prosecutors of lying and threatened to hold misconduct hearings. The judge fired back in court papers filed Tuesday that the government’s petition contained “several deficiencies” and “false factual statements.”

The Circuit, sua sponte, did the unthinkable.  It removed Judge Holderman from the case.  Fitzgerald only wanted his evidence to come in.  That wasn’t enough for the panel, apparently, and it decided that the judge presiding over the trial was out on his butt.   The court offered no explanation for its action, though a decision will supposedly issue eventually.

When news of this action broke, the initial reaction was utter amazement.  No one had ever heard of anything like this occurring before, and certainly no one could even fathom a court considering, no less acting, upon a complaint of hostility coming from the defense. 

Short of Judge Holderman being on the take, which no one suggests, his removal from the trial is nothing short of amazing and incredible.  Even the notion of the emergency order by the government, because it didn’t like the judge’s decision, borders on the inexplicable.  What’s the message?

When a judge refuses to suppress evidence that the defense contends was seized in violation of the Fourth Amendment, the case goes to trial and the evidence is admitted.  Assuming, as is usually the case, that the defendant is convicted, he may be imprisoned pending appeal.  Chances are slim that the defendant will be allowed bond pending appeal. 

Once the appeal is perfected, the matter argued and a decision is penned, and should the denial of suppression be reversed, the defendant may be released.  Understand, this process can take years, and the defendant remains in prison throughout the process.  None of this matters to the court.  It’s hardly an emergency situation, demanding immediate action to prevent the wrongful imprisonment of a human being.  This is just the way the process works.

Yet when the U.S. Attorney complains that the mean judge, the hostile judge, might preclude the prosecution from introducing a piece of evidence that they want to use to prove guilt, the circuit judges come a’running to prevent the grave injustice that someone may not be convicted as readily as the government demands.

Until a decision issues, we won’t have a clear understanding of what it was that Judge Holderman did here that so aggrieved the government that it commanded the Circuit’s immediate attention and caused the judges to take the extreme action of removing a judge in the middle of a case.  As of now, it certainly smells as if it’s all because of an adverse ruling.

So what?  Judges make adverse rulings against one side all the time.  All the time. And it doesn’t raise an eyebrow, no less give rise to relief of any sort.  No court has ever gotten this bent out of shape because a defendant might be wrongfully convicted.  That’s a big yawner around the courthouse.  It’s worthy of a platitude in a decision, and nothing more.  The fact that a guy was convicted on unlawfully seized evidence wouldn’t give rise to a blink. 

The message from Judge Holderman’s removal isn’t that the judge was making an erroneous ruling.  If it wasn’t for erroneous rulings, there wouldn’t be any need for appellate courts at all.  Whether reversed or not, they’re a dime a dozen.  No, the message here is that the criminal justice system can tolerate errors that affect defendants all day long, but it will not tolerate a mistake that might result in a defendant not being convicted.  It will not tolerate the judge who rules for the defense.

But the Chicago Tribune speculates as to the point of this extreme action by the 7th Circuit.

The uneasy history between Fitzgerald and Holderman may have inspired the appellate court to rebuke Holderman. [Lawprof and former defense lawyer Len] Cavise said, “This could be Posner’s way of saying, ‘I’ve had enough of the hostility between you and the U.S. attorney’s office. I want you to cool off.'”

If so, this could be the most dreaded message of all, that federal judges, upon pain of removal, must maintain cordial relations with one side of the adversarial system of justice, the government. 

If a judge has a reason to get hot at the government, then he should be hostile.  Same with the defense, which is notably missing from all of this as if it’s not even worthy of mention, no less recognition.  Since there’s no explanation for any of this as yet, we can only hope that Judge Posner’s message isn’t that the judge and prosecution need to play nice with each other.  They aren’t on the same team.  At least, they aren’t supposed to be.

Update:  The 7th Circuit decision (they keep changing links, so if the link dies, let me know)  is out (h/t Another Chicago Lawyer below), and here’s the beef:

The transcript of the district judge’s remarks concerning the evidentiary issue reveals a degree of anger and hostility toward the government that is in excess of any provocation that we can find in the record. He repeatedly accused the government lawyers of lying. He said, for example: “I don’t believe you when you say just about anything anymore because I know that you will lie to a court any time it helps you. I know that. I saw you do it. I know you will do that. You have proven that to me beyond a reasonable doubt.” He said: “I am going to bring the jury out, and I am going to tell them the government has failed, once again, to have witnesses ready to proceed. The government is delaying this case. Members of the jury, this case is being delayed by the government. It has been delayed by the government.

Your time has been wasted by the government.” He said: “I would like you [the government lawyers] to go back to the Court of Appeals and tell them, gee, we would like to mandamus Judge Holderman because he won’t allow us to call more witnesses or prove our chain of custody that we asked you, the Court of Appeals, last week to order him to present in the evidence in the case, to admit the document, to admit the exhibit into evidence. We now want to call more witnesses to lay the foundation, witnesses that Judge Holderman has pointed out we need. We now agree with Judge Holderman, and we were wrong last week when we tried to mandamus him. I would like you to go to the Court of Appeals and you tell them that. Will you do that?… Will you do that? Will you go to the Court of Appeals and admit that you lied to them….” He threatened to conduct hearings concerning misconduct by the prosecutors (shades of the conduct that led to the issuance of the writ of mandamus in In re United States, supra).

It’s an outrage!  An outrage I say.  No judge would ever talk to the defense like that.  No wonder Judge Posner had no choice but to remove Judge Holderman from the case. 

Following the New York Times editorial on the latest fashion trend in sentencing, Lawprof Doug Berman got an email from his beer buddy, Nebraska District Court Judge Richard Kopf.  The good judge not only offers some thoughts on the state of affairs of sentencing, but wants you to know his thoughts as well.

Although it has the data and although it releases data on a court-by-court basis, the United States Sentencing Commission has never publicly released information on the extent to which individual federal judges sentence within or outside the Guidelines.  I propose that the Sentencing Commission annually release sentencing statistics for each federal judge who sentenced a significant number of offenders during that year.

Since the Supreme Court’s reordering of the federal sentencing process, compliance with the Guidelines is on a steady downward trend, albeit not as drastic as feared.  This trend has caused the Attorney General, scholars and some judges to worry (1) that disparities caused by irrelevant factors (race, gender, class and so forth) are increasing and (2) that a fair number of sentencing decisions are driven by idiosyncratic beliefs that, while well-motivated, are not empirically supported or are contrary to reasoned sentencing policy. Indeed, these concerns are finding a public voice.

By making individual sentencing statistics available, federal judges will be held publicly accountable for the exercise of their new found discretion, and that might have the beneficial effect of causing judges to think more deeply about the sentences they impose and explain more clearly the reasons for those sentences.  Perhaps more importantly, armed with this data, outside scholars who seriously study these things will be better informed and therefore better able to provide a reasoned critique of the federal sentencing process in this post-Booker world.  In short, it is time for federal sentencing judges like me to pay the piper.

For those of us who didn’t sleep through high school American history, we learned that federal judges had life tenure, upon good behavior, for the purpose of not being held publicly accountable for the exercise of judicial discretion.  The notion was that the judiciary should serve the law rather than transitory public whim.  I know, a bit Pollyanna-like, but these were high-minded ideals.

Judge Kopf appears to fall into the “consistency is good” camp, his reasoning being curious.  Some will read his point as being that those who don’t have fancy-pants lawyers get screwed, while the wealthy can hire the best legal talent to buy their way out of long sentences.  There’s a problem with that seemingly egalitarian position, however.  We’ve lived through the reality of this position from 1987 through Booker, and learned that the outcome is everybody gets screwed. 

His second reason, judicial idiosyncratic beliefs, raises a different issue.  Who’s to say that a judge’s exercise is idiosyncratic?  Why, the collective wisdom of the United States Sentencing Guidelines Commission, of course.  And their solution is to eliminate the factors that serve to personalize a sentence to a defendant and an offense, because that’s the stuff that gives rise to what appears to be superficially disparate treatment.  Ah, the love of bean counting for consistency.

It’s not that Judge Kopf hasn’t shown his mettle in the past on sentencing issues, such as when he bench-slapped the Supreme Court in The Top Ten Things I Learned From Apprendi, Blakely, Booker, Rita, Kimbrough and Gall.

10. Following the Court’s approach, always put off to tomorrow what you can do today.

9. You don’t need experience in actually sentencing people in order to totally screw up the law of sentencing. It is telling and painfully obvious that not a single Justice ever had to look a federal defendant in the eye while not knowing what law to apply.

8. Footnote 9 in Blakely (“The Federal Guidelines are not before us, and we express no opinion on them.”) is the biggest practical joke in the history of American law. See lesson One below.

7. The “merits” and “remedial” opinions in Booker satisfy George Orwell’s definition of “Doublethink.” That is, the two opinions, and Justice Ginsburg’s swing vote to make both the law, reveal “the power of holding two contradictory beliefs in one’s mind simultaneously, and accepting both of them.”

6. Never impose a sentence that is too harsh or too lenient. To quote Baby Bear, make it “just right” or, perhaps more importantly, to satisfy Justice Breyer, make sure it is just “reasonable.”

5. Some sentencing judges used to take the Supreme Court seriously, but that got harder and harder beginning with and following Apprendi.

4. In an Ivy League sort of way, it makes sense to address the “crack” question fifteen years after everyone else knew something was terribly wrong. See lesson One below.

3. Justice Scalia’s dictum should be rewritten this way: The rule of law is the law of rules except when it isn’t.

2. Sentencing judges can be divided into two groups–those who are damn sure they’re right and those (like me) who have no clue.

1. There are a lot of really good, hard-working people “in the field” plus tens of thousands of defendants who deserved far better than the seven years of “water boarding” that ensued between Apprendi and Gall.

Yeah, I love it too.  But be cautious about what you project onto Judge Kopf’s views.  In the comments to Doug’s posting, my bellwether buddy from Crime and Consequences, Bill Otis, adds his two cents.

The only reason a person would oppose Judge Kopf’s proposal is to enable the Nancy Gertners of this world to hand out 90% downward departures and keep it as quiet as possible.

We sure wouldn’t want that to happen, now would we?  For every person who reads into Judge Kopf’s email the opportunity to impose consistent, but reduced, sentences, there are Bill Otis fans marching on courthouses with torches and pitchforks demanding that jaywalkers be executed.  There’s nothing like public accountability to remind us how much the public hates criminals.

But what of the ability of scholars to “provide a reasoned critique of the federal sentencing process in this post-Booker world?”  After all, isn’t that really the point of all those guys and gals strolling into courtrooms day after day, to provide law professors with something to analyze?  It would be a terrible shame if all that experience in the trenches, from the first day in the United States Attorneys office to their going away party as they ship off to the Ivory Tower were wasted.

It’s been less than 24 hours as this post is being written since the House of Representatives approved the Durbin bill reducing penalties for crack from 100 to 1 all the way down to 18 to 1, as if one to one would cause the San Andreas fault to open.  How long will it be before the cries about crack-crazed raping and pillaging are heard throughout the federal courthouses of America?  Remember, just as hemlines go up, they also come down.  Personally, I think Nancy Gertner’s hemline looks awfully darn good.

Much has been written about how people are absurdly careless with their personal information online, offering everything from their home being readily available for theft to their least savory moments with unknown suitors in dimly lit pubs.   Little by little, people are beginning to realize that a moments foolishness can be their perpetual online legacy, and they restrain that urge to update their facebook with the running description of their bathing rituals.

That’s all well and good, but does that mean you’re now safe from online shenanigans?

Not as long as the government has its way.  While you calmly vet your online information to protect yourself, various tentacles of the government are busy mindlessly posting your personal information on the internet.  How personal?  Like your social security number, in tandem with other identifying data that is commonly used to access your financial and personal records.  Via The Virginia Watchdog :

Your SSN is just a click away on the world wide web and it was most likely put there by some stupid elected official. And your health information is next.   Go to more news articles in our archives  and see examples of records put online by courts and other state agencies.  Yours could be online somewhere right now.    Many state agencies across the country like New York, Colorado, and Pennsylvania have SSNs online today available to anyone, anywhere in the world.   

This is no tin foil society, but quite real.  Government, in the name of transparency, allows access to data of all sorts indiscriminately, from properties to court records.  Within this is a gold mine of personal information, necessary for the purposes of internally maintaining identification information but definitely not the sort of stuff you would hand over to the folks running the omnipresent Nigerian lottery.  And yet it’s all there, neatly available.

BJ Ostergren wasn’t happy about this, and decided to address it by doing a little tit for tat, publishing the SSNs of public officials online to see how much they liked having their personal information exposed.  Shockingly, they didn’t. So they tried to shut her down.  No dice, said the Fourth Circuit in Ostregren v. Cuccinelli.

“The unredacted SSNs on Virginia land records that Ostergren has posted online are integral to her message,” Judge Allyson Duncan wrote in the unanimous opinion. “Indeed, they are her message. Displaying them proves Virginia’s failure to safeguard private information and powerfully demonstrates why Virginia citizens should be concerned.”

The court also agreed that the state cannot punish Ostergren for posting on her website the same public records that the government makes available online.

“Ms. Ostergren’s most powerful advocacy weapon has been to demonstrate to the public how bad a job the government is doing to protect our online privacy rights,” said Kent Willis, executive director of the ACLU of Virginia, which represented Ostergren. “The government responded, but by trying to silence Ms. Ostergren.”

Putting aside our sheep-like willingness to provide personal information on demand to petty much anyone who asks, whether governmental or the nice young lady at the cash register of your local big box store, what this reflects is the difficulty of those entrusted with personal information of exercising reasonable judgment, and putting in the amount of effort, necessary to protect us.  Thousand, if not millions, of records are dumped online so that politicians can claim transparency, but it takes a lot of manpower, not to mention a little bit of thought, to deal with it in a way that doesn’t expose our information to anyone who cares to look.

No matter how well we conduct ourselves, or teach our children, to be circumspect in our online dealings, it’s not going to help without the cooperation of government clerks who mindlessly offer us up on a silver platter.  Some might view BJ Ostergren’s actions in exposing government officials in the same way they expose others, but asking nicely isn’t working out too well and this needs to be stopped. 

Is it harsh to expose the personal information of government officials to all the scammers, cheaters, liars and thieves online.  You bet.  When the lesson can’t be taught nicely, unfortunately, harsh measures are needed.  This has got to be stopped.

Via Bobby Frederick and Radley “Do I really look like my dog?” Balko. some fun video viewing.  Three parts.  Two intermissions. Fun stuff. 

Caveat: It’s been edited and put together.  It’s possible that material information is omitted. It’s also possible that it portrays exactly what it claims to portray.  Since this is offered for your viewing pleasure, and as another fine excuse to munch on something while you’re awaiting your bar exam results or for the phone to ring, just chill out and be thankful that no one is warped enough to ask me to appear on a Hot Blawgers Calendar.  Now enjoy.

Seriously, the theme music was really awful.

Hemlines go up.  Hemlines go down.  Wide ties. Skinny ties. Individualized sentencing. Sentencing uniformity.  We really need a Mr. Blackwell for criminal law.

The Department of Justice has issued its annual letter on the sentencing guidelines.  You remember them, the matrix that determined sentence before the Supremes in Booker said “never mind.”  So what does the DOJ have to say this year?

On the other hand, there is a second regime that has largely lost its moorings to the sentencing guidelines. This significant set of criminal cases includes those sentenced by judges who regularly impose sentences outside the applicable guideline range irrespective of offense type or nature of the offender. It also includes cases involving certain offense types for which the guidelines have lost the respect of a large number of judges. These offense types include some child pornography crimes and some fraud crimes, including certain frauds involving high loss amounts.

We are concerned by this evolution of federal sentencing into two separate regimes for several reasons. First, we think it leads to unwarranted sentencing disparities. More and more, we are receiving reports from our prosecutors that in many federal courts, a defendant’s sentence will largely be determined by the judicial assignment of the case; i.e. which judge in the courthouse will conduct the sentencing. Scholarly studies are now beginning to reinforce these reports. This is extremely problematic. In our consideration of federal sentencing policy, we begin from the principle that offenders who commit similar offenses and have similar criminal histories should be sentenced similarly. This was the foundational principle of the Sentencing Reform Act of 1984. We are concerned that our sentencing system may be meeting this principle of sentencing reform less and less.

Uh oh.  Sentences have “lost their moorings.”  Nautical theme alert.  That’s bad, as prosecutors and judges take nautical allusions very seriously.  Not so much defendants, who rarely crewed at Choate or sailed at Seawanhaka Corinthian, but those who know a jib from a jab understand its seriousness.

Missing from this in-depth analysis, which stretches the fabric of sentencing from the government’s loss valuation to the defendant’s months in prison, is any mention of 18 U.S.C. §3553, the statutory sentencing factors.  Might the disparity in sentencing be a product of the consideration of factors beyond the government’s beloved formulaic approach?  Might the government delve deep, deep into its soul to recognize that its loss valuation isn’t the only consideration?  Nah. Besides, the government has no soul.

The letter, sent to Sentencing Commission Chair, Chief Judge Jeff Sessions, fails to set forth what exactly the government is seeking, aside from his undivided attention.  Are they saying that sentences are too low?  Too high?  Too disparate?  Does the government really have to spell it out for Judge Sessions, because he might think that DOJ wants sentences of probation available for all crimes?  You know, interest of justice and all that jazz?

Well, the New York Times apparently thinks that’s indeed what the Department of Justice wants. 

Sentencing for white-collar crimes — and for child pornography offenses — “has largely lost its moorings,” according to the Justice Department, which makes a strong case that the matter should be re-examined by the United States Sentencing Commission.

As a general principle, sentences for the same federal crimes should be consistent. As the Justice Department notes in its report, a sense of arbitrariness — sentences that depend on the luck of getting a certain judge — will “breed disrespect for the federal courts,” damaging their reputation and the deterrent effect of punishment.

The Justice Department is not explicitly recommending that sentences be lowered; in fact, the new financial regulatory law suggests higher sentences in some areas. But readjusting the guidelines downward in some cases is clearly one of the possible routes the sentencing commission could take.

It’s not “explicit”, but somebody on the New York Times’ editorial board got the nod and wink.  The DOJ says, Judge Sessions, take down that wall!  Hooray, DOJ, tacit though your recognition that the sentences imposed are draconian may be.  Huzzah!

So why am I not reading the Justice letter the same as the Times?  I never crewed, but I know how to sail.  I get the nautical allusion.  I’ve had dinner at Seawanhaka, wearing a blue blazer with brass buttons.  What am I missing?

Uniformity based on the formulaic measure of government imposed plea terms is beloved by those who don’t want to think too hard.  That every case presents its own considerations, ranging from the facts and circumstances of the offense to the situation of the defendant, and occasionally even a challenge to the government’s vision of the harm caused, would mean that people who love statistics, easy answers, superficiality and committees would be unhappy.  None of this fits easily into the paradigm, and it makes people look bad in Washington when forced to take more than 10 seconds to explain something. 

It comes as no surprise that the DOJ pushes for a return to uniformity.  It makes their life infinitely easier, and puts the power back into the government’s hands.  But that the New York Times supposes that the government’s secret message to the sentencing guidelines commission is to loosen up, lighten up, lower the number, is, well, suspicious. 

Does the Times know something about the DOJ that I don’t?  Or maybe the Times is stumbling around like a drunken sailor, three sheets to the wind, and seeing what it wants to see.