Sam Adams.  A beer (and a darn good one at that).  A founding father.  Almost President.  A lawyer with the balls to do his job.  Pick ’em.

Sam Adam(s) Jr., is defending Rod Blagojevich in Chicago, where the judge, James B. Zagel, is trying to micromanage his summation.  From the AP :

Judge James B. Zagel sent the jury home for the day after Blagojevich’s attorney Sam Adam Jr. complained the judge was gutting his closing arguments by not allowing the defense to mention witnesses that prosecutors did not call.

Prosecutors had mentioned some of those witnesses, including convicted fundraiser Antoin “Tony” Rezko, in their closing argument, and Adam argued the defense should be able to do the same.

“Your honor, I have a man here that is fighting for his life,” Adam said, turning red and raising his hands.

Zagel responded: “You will follow that order because if you don’t follow that order you will be in contempt of court.”

“I’m willing to go to jail on this,” Adam shot back.

How many of you have the stones to say that to a judge?  After all, it’s so much easier to turn to your client and say, “but you heard the judge.  He won’t let me.”  Certainly your client, even if it happens to be someone as universally despised as Blago, would understand and forgive you for not putting your own butt on the line.

Yet, there’s a problem.  What the heck is Judge Zagel talking about?  There are certainly a bundle of rights involved here, but they all belong to Blago.  One of the premier rights is the right to present a defense.  Included in that right is the ability to point out to a jury the failure of the prosecution’s proof, which includes the absence of witnesses who the government might have called to support its contentions but didn’t.  The defendant’s decision not to testify is a matter of right.  There is no parallel right for witnesses, and certainly no similar right for the government to keep its witnesses failure to testify from the juror’s delicate ears.

The government spoke about missing witnesses, yet the defense is precluded?  Why would that be, Judge?

Zagel said he was giving Adam the night to rework his closing arguments, given his “profound misunderstanding of legal rules.” He said Adam could designate another defense attorney to give the closing if he couldn’t follow the rules.

A regular misunderstanding, apparently, gets you a slap in front of the jury.  A “profound misunderstanding” gets you an extra day.  Yet the judge neglects to mention what rules Adams profoundly misunderstands.  This concerns me, since I profoundly misunderstand them as well. 

The yeoman’s reaction to a ruling like this is to protest, make a record, and move on.  But Sam Adam is no mere yeoman.  He knows that there will be no better chance to beat the case than here and now, before the jury.  On appeal, everything flips over and all presumptions are against him.  On appeal, the sensibilities of judge rule, while the understanding of real people are lost.  No, one doesn’t give away a critical part of the defense lightly.

But how, you wonder, can Sam Adam take the risk of being held in contempt for violating the court’s ruling.  Won’t that interfere with his twitter use, his blogging, his social media availability?  Why yes, it most assuredly will. 

This is what it means to be a criminal defense lawyer, standing between a client and everyone else in the world.  Not that you disobey a judge’s order on a whim or lark, or even when you think the court is wrong.  What it means is when your client is about to lose a fundamental right that he can never be recaptured, that is so egregiously harmful that there is no redress available, that the basic purpose of this exercise called law is about to be flushed down the toilet, you make the decision whether your personal comfort and convenience rises above your duty to your client.  The times may be rarer than rare, but there are time when you take the hit for your client. 

It’s hard to say whether this is the time that Sam Adam Jr. should face Judge Zagel and say, “do what you’ve got to do, I’m going to defend my client.”  That’s his call entirely.  If he should decide to do so, given the court’s ruling, it would hardly come as a shock.

But somewhere in your career as a criminal defense lawyer, you will be faced with the decision of whether to risk your freedom to do what’s right.  When that happens, make the choice that Sam Adam would make.  All of them. 

There are some very witty folks on twitter.  No, it’s not quite Oscar Wilde meets high tech, but then you don’t have to be that witty to make friends.  Plus, not everything Oscar Wilde had to say fit within the 140 character confines of twitter.  Yet, there are new friends to be made who, out of the blue, get a decent chuckle.

Many, however, aren’t on twitter to do an Oscar Wilde imitation.  Oh, no sireebob.  They are trolling for friends with an ulterior motive.  They follow (then unfollow when you don’t return the twitter love [twove?]) to gain your confidence.  They network. If you need a lawyer in Des Moines, they’re your man.

It’s not an evil plan.  They aren’t doing it because they want to steal business they don’t deserve.  They just want to let the world know they’re there, available and, hey if it happens that you need them, your friend.  Manufactured experts on things that require no expertise tell lawyers that this is a great way to grow your business.  Lawyers who need business go along for the ride.  There’s no barrier to entry and if you get a case out of it, you’re way ahead of the game.  What’s wrong with that?

In the past, the nature of referrals via twitter has been a subject of discussion here.

Contrary to my brethren who assert that cute and interesting twits are a fine basis for the construction of a referral network, I will never refer a matter to someone on the basis of their twits. I may like them very much, and enjoying twitting back and forth with them all day long, but they aren’t getting a case from me based on twits alone.  I would require far, far more to have the requisite faith to entrust them with a client. 

This isn’t to say that someone isn’t worthy, but that worthiness can’t be discerned on the basis of twits.  No matter how much I like you on twitter, it doesn’t make you a good lawyer, just a good twitterer.  If someone asks for a referral to a good twitterer in Des Moines, you’re my guy.  A good lawyer? Sorry, don’t know anybody.

I realize that my view likely makes me an outlier.  Many, perhaps most, will fail to connect likeability in one arena to competence in another.  Some will justify it by saying, “hey, he’s a really sharp guy.  I can tell by his twits.”  Others just want to feed the business to someone they like.  Still others will send it out in the hope that the favor will come back to her.  Backscratching is a time honored tradition.

An outlier like me, however, can’t bring myself to do it.  Not because I don’t think you’re smart, witty or likeable.  You may be the most likeable person in all of Des Moines.  If I’m in Des Moines and free for drinks and dinner, you would be the first person I would call.  No, really.

But referrals aren’t guided by who one would prefer to hang out with.  It’s all about lawyering.  And it’s not about who talks a good game, but who produces.  And it’s not about backscratching but trust.

Where did we go so far astray that we’ve forgotten the point of this exercise we call the practice of law.  Sure, the marketers inform us that people are inclined to do business with people they like, thus directing us to be more likeable, more appealing in order to gain business.  This has confused many, who fail to distinguish between what makes for good marketing as opposed to what makes for good lawyering.  Do you refer to the best marketer or the best lawyer?  Sadly, I see the former prevailing as weaker minds populate social media. 

Think Dr. Gregory House, who may be the most dislikeable character on television, but the one you want when no one else knows what’s wrong.  Yes, of course it’s total fiction, but it’s an example to make a point.  In law, as on TV, the bottom line is the ability to get the job done, not the ability to provide comfort and solace while screwing it up. 

While it’s not impossible to do both, my experience is that the lawyers who do the best work tend not to be the hand-holders and comforters.  They tend to be hardened, focused and intolerant.  They suffer foolishness poorly.  They have the killer instinct, the ability to find the weak spot and the will to exploit it unmercifully.  They have the guts to stand up to any enemy, and the smarts to know when and how to pick their battles.

These types of lawyers won’t be everybody’s cup of tea.  Some of them are pretty hard to get along with, difficult to like.  But when you’re in the midst of battle for your life, these are the lawyers you want standing beside you. 

Chances are, you’re not going to find these lawyers floating around twitter making friends.  But if you ask me for a referral, these are the lawyers I would send you to.  If you want to know who is witty and fun on twitter, that’s another matter entirely.

I received a suicide note today.  Many emails come in from readers who are angry, outraged, at their treatment by the system and express their rage at one or more participants.  This was completely different, and important enough that I take a few minutes from real work to write about it.

The writer doesn’t ask me for anything, other than the hope that I might eventually find time to tell his story.  He writes that it’s difficult, but that he’s already dead.

He was charged with internet solicitation, for going to a gay chat room where he was nabbed by police who didn’t agree with his preference.  Despite paying good money for a lawyer, it ran dry and eventually he was offered a plea that included 15 days in jail, a $500 fine, 20 hours of community service and 3 years probation.  He was told that his felony would be reduced and expunged when he completed his probation.  He was told to take the deal, so he did.  Things didn’t work out the way he was told they would.

I wake up and cant believe whats happen . this has been going on now for 8 1/2 years  i have no job  i am broke  i have nothing i am going to lose my home my parents pay for my bills but  when you havnt been to a medical Doctor in 7 years or a dentist my teeth are rotting . I lost my medical insurance when i was fired from my job.  my savings are gone.

i cant form a relationship because who wants to be with a felon and a registered sex offender ??  I have lost  friends i had .    Now they changed how you have to register  so you have to pay for a drivers license every year  and on top of that they charged $75 a year just for the privilege of being a registered sex offender  which they raised to $ 125 which i don’t have the money to pay for i don’t have any money  because i was fired from my job and  am now unemployable   I live off my parents who can not afford it.  my life is a pure hell.  i am 10 years older now and  unemployed.  all my savings which i had saved for retirement  is GONE!   but i want people to know  … 

He wants people to know that he didn’t do it.  He never hurt anyone.  He never would hurt anyone.  He doesn’t ask for any help in fixing his life, but only that someone knows why he took his life.

All of us, myself included, talk about the law in a theoretical sense, disconnected from a hard recognition of the human consequences.  No doubt there are people who can explain, inch by inch, line by line, how and why everything that happened here was grounded in good intentions, for the purpose of protecting people from harm.  We know that harm is caused in the process, but we shrug it off as collateral damage in the war on crime.  We are willing to suffer the damage to some in the name of protecting others.  We know that some innocent people will be caught in the process, but we close our eyes and argue that it can’t be helped.  It’s just the price we pay. 

Except we don’t really pay it.  The writer of this email paid it, after losing his job, his savings, his life.  He served 12 days of a 15 day jail sentence, a trivial sentence in itself, but only the prelude to a nightmare.

Lawyers complain about the misery of their lives, having to go back to the trenches and suffer the indignities of fighting against the tide. Oh, how hard it is.  But they go home at night and have dinner with their families. 

To the judges, prosecutors, legislators and yes, defense lawyers, who support and enable the criminal justice system, this is your success story.  You’ve achieved everything the criminal justice system exists to achieve. You got your conviction and exacted everything from him that you possibly could.  In your zeal to make absolutely certain that no one can ever escape your control, this is what you’ve created.  Are you happy?  Is this what you hoped to accomplish?

If the writer of this email takes his life, you will have exceeded your goal.  You will have imposed the death penalty, on top of the 12 days to which he was sentenced and the life of misery.  You should be very proud of yourselves.  Your system worked like a charm, and society has one less person to worry about.  He will never harm anyone, even though he may never have harmed anyone before.  It’s a success story.

I don’t know what’s become of the writer of the email.  I have taken action with regard to it, but haven’t heard anything further as yet. 

I remember the first time a man came into my office and told me his brother was arrested for “crack”.  The word meant nothing to me.  I did a lot of work with clients arrested for drugs, and though I knew a bit about the drugs on the street, but this was new to me.  

He explained that it was cocaine cooked with baking soda, boiled down so that it was concentrated.  It was sold in tiny vials, and ingested by smoking rather than snorting.  Why?  It was a cheaper, quicker way to get high. Cocaine was expensive.  Crack was cheap. Crack soon became the talk of the land, the latest, greatest threat to society.

Uptown Manhattan changed during the crack rage of the 80s.  Competition for the street corners became fierce and violent.  People who once sold pot now sold crack, and other people with guns challenged them for their long-held spots.  There was huge money to be made.  You just had to stay alive long enough to enjoy it.  Many did not. 

Overnight, tales of crack grew to mythic proportions.  It was the most addictive drug ever.  It turned people into raging animals.  Crack addicts would kill for their next fix.  There were plenty of deaths to make the point, though most were kids on street corners being shot by other kids on street corners for the right to sell nickel vials.

In due course, crack fell out of favor, just as heroin and cocaine had before it.  Heroin was back at the time, bringing a quiet, passive type of junkie rather than the hyped up crack type.  Crack turned out not to be the worst drug ever.  Just another drug.  No more addictive than cocaine.  Just cheaper.

Congress, which has yet to remove marijuana from Schedule 1 , the list of drugs that are purely evil, addressed the horror of crack by making its punishment 100 times worse than powdered cocaine.  There were mandatory minimums, lest people skirt the horror of crack by holding it in small, but deadly, quantities.  The idea was that no amount, no matter how small, should escape severe punishment.  No crack dealer should escape the harsh punishment necessary to end this plague.  It swept a lot of small users up in its clutches.  They were usually black or Hispanic.  White people didn’t use crack. 

It suited the myth, though it suggested that powdered cocaine, the drug of choice at the time by corporate executives, college professors and senators, was 100 times less criminal.  The joke back then was cocaine was God’s way of saying you make too much money.  It was expensive, but people who had the money bought it, hung out at Studio 54 with the glitterati and snorted coke on the dance floor.  It made them cool and edgy.  It made them high.

I challenged the constitutionality of the sentencing guidelines, then mandatory, for crack, arguing that they were arbitrary and capricious, a penalty founded on distinction that didn’t exist, rendering it irrational.  I was laughed at by prosecutor and judge alike.  Crack was the most evil drug ever conceived, and deserved its 100 to 1 disparity.  It’s not that anybody in the courtroom, aside from my client, had the slightest clue about crack.  It was reefer madness.  Overnight, it was an inviolate part of the pathos of the drug war. 

A generation later, people in positions of influence came to the realization that it was just a fiction.  But it’s a fiction that became so ingrained in the psyche of the powerful that it was nearly impossible to overcome.  Nearly.  The New York Times has an editorial calling for the passage by the House of Representatives of Senator Richard Durbin’s bill ending the disparity.

Congress passed the misguided law two decades ago, when it was believed that crack — cocaine in baking soda — was more addictive and led to more violence than the powdered form of the drug. These myths were quickly debunked. But the country was stuck with a law under which a drug defendant found holding five ounces of crack received the same mandatory five-year prison term as one busted with 500 ounces of the chemically identical powdered form of the drug.

African-Americans make up a minority of crack users but account for about 80 percent of those convicted under the statute. The mandatory sentence has pushed drug policy in the wrong direction, imprisoning addicts who should have been sent to treatment programs.

I can’t remember the last time a crack case came into my office.  I suppose they are out there, but the plague passed long ago amongst my clientele.  And Congress is first beginning to catch up to what was patently obvious a generation ago.  It’s rather odd that there is a question on whether to end the disparity.  It’s not like anybody is arguing to decriminalize crack, but rather punish it as severely as powdered cocaine.  As if that’s a gift.

The crack plague served its purpose.  Many hopped on the war on drugs bandwagon, swapping freedom for safety from the hopped up masses of dark-skinned, drug-crazed crack addicts.   To argue that the crack disparity should be brought to an end at this point seems almost ridiculous.  It never should have happened, and the damage done by crack directly was nothing compared to the damage done by Congress’ treatment of crack. 

Yet marijuana remains on Schedule 1.  Society has its newer plague, terrorism, to justify the continued adoration of safety over freedom.  And only after the latest and greatest war on something sweeps the country will we step back and look at what we foolishly did in the name of fear. 

Crack caused people to lose all reason.  All of those people held seats in Congress.  Should Senator Durbin’s bill pass the House, it will end a vestige of criminal justice foolishness, but a generation too late.  The foolishness otherwise continues unabated.

Update:  The law passed the House. The 100 to 1 disparity is now reduced to 18 to 1, without retroactivity and maintaining the mandatory minimums (except for first time, small quantity possessors).  Woo hoo, kinda.

I was sold on the idea after reading Dan Solove’s book, The Future of Reputation.  For reasons unknown, the New York Times has finally caught up with its story in the Sunday Magazine by lawprof Jeffrey Rosen.  The problems are well known.

1.  People post the most mind-numblingly stupid revealing and personal stuff about themselves.
2.  People post things that seem funny at the time but will cause them enormous grief and problems later.
3.  People post things that are easily misunderstood by readers who are not within the intended audience.
4.  People post things in haste or anger, but can’t take them back.

And then there are the problems people cause others.  Some post critically about others.  Sometimes it’s well deserved.  Other times it’s not.  Sometimes it’s completely false.  Sometimes it’s completely true.

One of the most problematic situations is when someone posts information about a friend that contains information that will haunt another person forever.  You can be circumspect in your own posting, but have no control over the propriety of what others post about you.

“Sue Smith was so drunk and high on coke last night that she let all seven of those disgusting guys have their way with her in front of everyone.  LOL!”

Yeah, that’s a hoot.  Unless Sue Smith’s employer happens to run across it as she’s up for consideration for a new job, promotion, appointment.  Sue would have done better to remain in control, but then again, is it necessary that this be her legacy?

Rosen, like Solove before him, offers a number of solutions to the problem of perpetual online reputation.  The problem is that none of them come without a price, primarily in the form of free speech.  Whether the trade-off is worth it largely depends on where one’s reputation falls along the spectrum.  If there are some nasty things out there about you, chances are good that you’re all in favor of declaring “reputation bankruptcy” and clearing the cache, so to speak, of your past.  But then, it will also breed scoundrels by eliminating those aspects of their history that remain critical, such as disbarment.

To those people, and by “those people” I particularly refer to the young and foolish who appear clueless as to why today’s fun and cool adventures won’t be received nearly as well twenty years later, who post about themselves without the slightest degree of thought for their reputation, grow up.  You can be fun, carefree and cool without being utterly foolish.  Ask yourself, will this be nearly as cool when it’s read by my future employer, client or spouse?  If not, don’t do it.

Far harder is dealing with dear friends who mindlessly post the harmful, stupid stuff that wreaks havoc with another person’s life.  They mean no harm.  Oops. Sorry.  Yeah, well, that doesn’t do much good, now does it?

Think.  If you want to screw up your own life, reputation and future, at least you’re the only who will suffer.  Don’t screw with someone else’s life out of stupidity and carelessness.  Don’t do grievous harm to another because it seemed like a funny thing to do at the time.  Read what you are about to publish as if you were someone researching their life twenty years later, and consider that info posted by friends can frequently be considered one of the most credible sources of information about a person.  In other words, you are stabbing your dear friend in the heart and can’t be bothered to think enough of it to restrain yourself.

I’ve seen this happen, and had it happen.  I’ve had very smart people post some very stupid things about me.  It’s cost me friendships when the poster doesn’t get why I’m so angry about their off-hand joke.  But their lack of comprehension isn’t reason enough for me to be burdened by their moment of cluelessness forever.

The price for the solutions to the dilemma of reputation is higher than I care to pay.  There are some negative things about me floating around the internet, and some horrifically awful false statements made for the purpose of trying to do me harm.  I don’t like them, but I would still prefer that we not engage in a series of legal responses that will infringe on free communication.  My shoulders are pretty broad.

The best solution, however, is also the easiest and cheapest.  Stop posting stupid and harmful crap for fun.  Think before you hit “enter”.  Both for yourself and others, but especially for others as they don’t deserve to suffer the consequence of your brain fart. 

Yes, a few funny things will be lost to the ages,  That’s a price I can live with.

Chandler criminal defense lawyer Matt Brown makes an astute observation.  Listening to a loud-talking probation officer in her 20s interview a defendant, it became clear:

After the probation officer finished, she shuffled past me with a faint smile on her face. I caught a glimpse of the defendant in the visitation room. He was grizzled, with a glass eye and scars everywhere. He was rail thin and had a head of curly black hair. I looked back at the probation officer. She waited impatiently to get buzzed out of the jail hallway while fiddling with her ponytail.

The stupid questions and the stark contrast between the probation officer and the defendant made a strong impression. She shouldn’t be in a position to report on him. He’s experienced things that she can’t even fathom. I’d guarantee it.

The coddled class judges society’s rejects.

I imagine the probation officer sitting in her office, surrounded by bric-a-brac as she types up a report about that man’s antisocial personality and escalating drug use. A judge will read what she writes and commit a fellow human being to state custody for a term of years. The judge may have struggled less in his or her life than the probation officer.

They grow up in lives of relative comfort and great expectations.  They do well in school, come home to meals cooked by their mother and advice dispensed by a father wearing a cardigan, and attend the university where they read great literature and obtuse philosophers.  Not too many know what it’s like to go to bed hungry.

Bobby Frederick in South Carolina picks up Matt’s theme, and takes it a step further.

The probation officer could just as easily be the man’s defense lawyer, the prosecutor, or any other person that comes into contact with him in the system and participates in determining his fate. I imagine that many readers of this blog and Matt’s may relate more to the probation officer in the story, and that many of those readers just don’t get it. Also, it’s an academic observation – the coddled among us are most often the ones who are privileged to attend universities, obtain degrees, and take positions of authority over the rest of us – that’s not going to change.

We all of the coddled class.  Defense lawyers, at least, have the opportunity to learn about a sphere of humanity that never had a chance to enjoy the wonderful opportunities we did, but that only helps if the lawyer has the metacognitive skills to see their relationship to others.  Most see nothing but themselves.

Both Matt and Bobby are relatively new lawyers, yet they consistently demonstrate a depth of observation and understanding that shows that they have what it takes to be great criminal defense lawyers.  No wasted energy on oozing self-absorbed  compassion without substance, as the Slackoisie are wont to do, but purposeful insight that furthers their grasp of the criminal justice system.

Throughout their legal careers, they will be confronted with real life as filtered through the prism of the coddled.  Judges, prosecutors, probation officers and yes, even defense lawyers, will recoil from the smell of a troubled life.  We can’t conceive of how some miscreant ended up lying in the street in a pool of his own vomit rather than sitting for the college boards.  After all, they had the chance to go to school, just like us, but took the path toward a life of misery.  They made the choice not to be like us, to someday wear a cardigan and lecture our daughters on dating etiquette.

The truth is that many don’t have lives that resemble our own experiences in any way.  We could parse it and point to bad choices, often by parents, cops, teachers and others who could have helped but instead became a guide down the road to perdition.  But every junkie, mugger and dealer has a tale of his own.  It’s just not our tale. We have done so much better with our lives that we believe ourselves entitled to judge them.  We did right. They did wrong.  We win.

There are many people out there who have led lives of deprivation and misery.  Many have made some very poor choices, taking an ugly existence and making it worse.  Some are poorly educated.  Some are dumb as dirt.  Some are sociopathic and some are malevolent. Some are just sad and pathetic.

The coddled class judges them all harshly.  They are unsalvageable, or if they can be saved, it’s just not worth the effort or the risk that some of their stench will rub off on us.  The coddled class looks in the mirror every day, making sure their hair looks attractive, before they pretend to help those less fortunate.  It’s not that they don’t mean well, but that they share no understanding of the life of those they judge.

It’s impressive that Matt and Bobby realize this, as so many don’t even though they think that disconnected empathy makes them worthy of judging others. 

It’s not that the concept is new or novel.  Hatred of lawyers and the system blamed on them, has been around for a long time, and growing.  But as the Wall Street Journal reports, the economic downturn has made hiring a lawyer an impossibility for many, even if they were otherwise inclined to “lawyer up.”

A growing number of people have found themselves in court facing costly financial proceedings such as declaring bankruptcy, fighting foreclosure and litigating employment fights. Adding to the challenge, for many: The high cost of legal representation often prompts them to go it alone.

Going it alone may not be, as Nathan Koppel suggests, a choice, but the lack of choice.  That’s a very different problem.  It’s one thing for someone to make the active choice not to throw money away on a lawyer.  You make your bet and live with the consequences.  But when there’s no choice, no option to have some legal talent at your side, and you’re left to fend for yourself in a system that requires a judge’s signature to accomplish a needed goal, there’s no way to blame the litigant.

“People will gather legal information from the Internet, from friends, or leaflets at a courthouse and think, ‘I can play checkers, I’m ready,’ ” said Raymond Brescia, a professor at Albany Law School, who has written about tenants’ struggles to afford legal representation. “But when they get to court they realize it’s a game of three-level chess, and they don’t have the first idea of what’s happening.”

Pine as we may for the lack of a system where good people without resources have access to good lawyers, it doesn’t exist.  While indigent criminal defender organizations are being forced to close their doors to new clients, and deeply compassionate private lawyers cry for free lawyers for all, while they continue to market their practices to paying customers and collect as many fees as possible, the pro se litigant continues to lose.

The analogy between checkers and 3D chess is a good one.  Non-lawyers often have a clear and certain view of the law, not to mention what they believe justice to be, only to find that no one in the courthouse seems to share their clarity.  Often, this devolves into despair and conspiracy theories, where they rationalize their lack of understanding by blaming everyone else.  Not only does this result in a lost cause, but another member of the Tin Foil Hat Society.

What stands out in Brescia’s quote is the source of information for so many non-lawyers.  The Internet.  It’s democratized information, making it accessible to anyone with a computer.  But it’s only a weak solution.  For one thing, reading the words doesn’t mean that anything is understood.  The law is complex.  Whether it should be or not is another matter, but for the person walking into court on Monday, it is.  Non-lawyers aren’t equipped to grasp its complexities or nuances, mechanisms and details.  They walk in thinking checkers and they’re slaughtered.

There’s another problem, one that lawyers don’t want to admit.  Much of what’s available on the internet is just plain wrong.  And it’s being written by lawyers for the consumption of non-lawyers.  You see, as everybody is told by their friendly marketing rep that they have to write stuff to become a part of the greatest marketing juggernaut of this generation, they comply.  But they won’t put in the time to get things right, or they can’t.  Writing often reveals that some lawyers just aren’t very good. Maybe they aren’t very smart.  Maybe they aren’t very experienced.  Maybe they just don’t get the distinction between the routine and the right way.  You see that an awful lot.

And then there are others who comment “good job” and “great post,” even though it’s not.  This has an impact on the non-lawyer, who feels that they’ve stumbled on their checkers answer to their 3D chess problem.  See, all these other lawyers agree with the writer in the comments.  It must be right.  It must be.

Of course, the comments aren’t meant to suggest that these explanations of the law are right, or even ha;f-way decent, but to bolster the self-esteem of the writers and curry favor online for the mutual admiration society.  There are lots of societies on the internet.  Some call them Tribes. 

Some people will say or do anything to be a part of the tribe.  Some people will say or do anything to be the tribal chieftain.  If it means applauding or encouraging ignorance, so what?  As long as others love them for their encouragement.  Not that it’s an appeal to narcissism, or anything nasty like that, but there’s a gaping void that can only be filled by pretty balloons offered by people who are merely names on the internet.

What the tribe folks don’t consider is that these unfortunate folks who must go to court lawyerless read these bad posts on the internet, think they know what the game is and how to play it, and get creamed.  For all the talk about how they care deeply about people, they do an awful lot of harm to them.  No need to think to hard too explain the dilemma; they do care deeply, but care more about the tribe. 

Gillian Hadfield, a USC lawprof, has come up with some of the most interesting, and viable, alternative approaches to lawyering for those who can’t break through the blue pinstripe paywall.  Unlike some of the pie in the sky ideas, which may make their proponents feel good but have no chance of working, Gillian offers ideas that are doable.  Radical, but then it’s a radical problem that demands radical solutions. 

Neither dumbing down the law, nor sending non-lawyers into court like lambs to the slaughter, works.  Nor will there be a great coterie of lawyers available to pro bono represent the bulk of America, not as long as there are loans and rent to be paid, and children to be fed.  To any private lawyer who thinks there should be, throw your office doors open to the huddled masses and let me know how that works out.  Until you’re prepared to give it away, don’t urge it upon anyone else.

And don’t become an enabler of the ignorant and wrong while professing your love of humanity.  People are getting hurt, and you’re part of the problem.  Gathering up your tribe at the expense of others isn’t a harmless game.  Don’t kid yourself.  Either stand up and challenge writings on the internet that are wrong, foolish, simplistic, stupid and misleading, or admit, at least to yourself, that you have made the choice to sacrifice good men and women who turn to lawyers online for a way of dealing with their problems so you can gather some friends and followers.

Those who can’t afford a lawyer may not have a choice.  Lawyers who applaud crap online do.  Yes, it can make you unpopular with your tribe to be honest, accurate and truthful.  That’s the price.  Got the stones to pay it?

On one level, it’s kinda funny.  On another, it’s not funny at all.  From the Milwaukee Journal-Sentinel, courtesy of Eugene Volokh, comes this story at the crossroad of politics and free speech.

[T]he Wisconsin Government Accountability Board rejected an independent Wisconsin Assembly candidate’s request to label herself on the ballot as “NOT the ‘whiteman’s bitch’”:

Unlike candidates from the established Democratic and Republican parties, independents are allowed a five-word statement of purpose on the ballot to explain to voters what their candidacy is about. Shane Falk, a staff attorney for the Accountability Board, said that the board had the ability to restrict obscene or derogatory candidate statements from the ballot. 

With one member absent, the board voted 3–2 in favor of reversing that ruling and allowing the wording. Under board rules, however, four votes are needed to overturn a staff decision.

To its credit, the majority voted to reverse the staff decision.  A majority, unfortunately, wasn’t enough.  But regardless of the board’s voting process, the question remains why anyone, any board, should have the power to stifle a candidate’s choice of the five-word statement of purpose chosen to reflect her candidacy.

This is politics.  This is where a person runs for office to promote their political beliefs.  Since when was there a requirement that political beliefs be couched in pleasant terms.  Or even nice terms.  Is the phrase, “NOT the whiteman’s bitch” derogatory?  I would certainly think so.  Does it make a political statement?  Absolutely.

Is this not the fundamental purpose of free speech?  Is this not the expression of a political idea, the most critical purpose of the First Amendment?  Is it something that any governmental censor should be able to squelch?  While not quite for it, Eugene isn’t exactly against it either. 

As best I can tell, the relevant statute provides simply that, “Along with the names of the independent candidates shall appear the party or principle of the candidates, if any, in 5 words or less, as shown on their nomination papers”; I don’t know what statute or regulation gives the board authority to restrict the contents of those 5 words, and under what standards. I would be inclined to say that a viewpoint-neutral rule prohibiting vulgarities or epithets might well be constitutional, since the ballot is a state-created limited public forum. But I’m not sure exactly what rule is involved; please let me know if you know.

Aside from saying that “derogatory”, as with obscene, is in the eye of the beholder, derogatory political speech may be the most important speech there is to protect.  Should political speech be limited, in any way, by the fact that it might offend?  No doubt King George found the accusations of the Declaration of Independence offensive. Wasn’t that, at least in part, its point?  What of the purpose of letting the King know what it was that his former subjects disliked about him?  Should there have been a staffer to censor language that the King might find offensive?

It’s not that I’m much of a fan of the vulgar or epithets.  I’m not.  I try to avoid using them here, though one or two may emerge during casual conversation.  On the other hand, they can send a message.  They can be extremely useful in making a point or adding emphasis.  The same is true of language that some might find derogatory.  It can be very effective.

Clearly, a very strong message is sent by the description, “NOT the whiteman’s bitch.”  The candidate, Ieshuh Griffin, likely chose the words carefully, with the intention of sending a very clear message with her chosen description.  This is the essence of politics, and the essence of free speech.

While the regulation may be viewpoint-neutral, as Eugene states, it also inhibits the core of free speech, to express a viewpoint.  When regulations on political speech inhibit, or prevent, the clear expression of a political view, they strike at the core of the First Amendment.  This can’t be tolerated.

Let people be offended by Ms. Griffin’s description.  Let people be offended by her politics.  Let Ms. Griffin’s description be aired.  That’s what free speech is all about.

It’s terrible that police officer deaths in the line of duty are up 43% this year over last.  Not because the death of police officers, regardless of how “line of duty” is defined, are more significant than the death of any other person, but because the untimely death of a person who happens to be a police officer is as significant and unfortunate.

That doesn’t make it my fault, however.  Via FoxNews :

Eugene O’Donnell, professor of police studies at John Jay College of Criminal Justice in New York, said the number of officer fatalities fluctuates from year to year. However, he said he has noticed an “alarming frequency” of people targeting police.

“There has been a spate of particularly brutal and senseless attacks on the police,” said O’Donnell, a former police officer and prosecutor in New York. “It seems to me, an unprecedented level of disrespect and willingness to challenge police officers all over the place.”

He said a rise in mental health problems and scathing criticism of police, such as the comments found on some blogs, could be fueling the brazenness and disregard for authority.

Could that be true?  Possibly, though there’s absolutely nothing to suggest it aside from O’Donnell’s facile use of the statistic to lash out at “enemies of the police.”  Hey, why not?  You love police.  You hate critics of police.  The opportunity is available, and it’s not like people think hard enough to realize that you’re just making it up.  At least some people will buy it, in any event.

I don’t buy it.  Aside from the total absence of any substantive basis to support the claim, and despite the fact that many of the deaths were the result of vehicular negligence (yeah, maybe people were negligent because they were reading SJ on their Kindle while driving.  It could happen.), let’s consider this in terms of cause and effect.

The content here about police is almost invariably in reaction to something a police officer has done.or failed to do.  We(meaning bloggers who are disinclined to be police apologists) don’t make them do it.  If it was up to us, they wouldn’t do it.  It’s not, and they do it anyway.  Only then do we write. 

But O’Donnell claims that our highlighting and criticizing wrongdoing on the part of police “[fuels] the brazenness and disregard for authority.”  Well, yeah, guilty on the disregard for authority part. But there is a monumental leap, even if it were factually connected, between criticizing police and the “brazenness”, assuming there’s a factual basis for such a claim, with which people deal with cops. 

Clearly, the expectation of people like O’Donnell is that the public should obey and be compliant.  I can hear the choir in the background singing, “it’s a very hard job to be a cop.”  The song strikes a sour note.  Contrary to the viewpoint of some police officers, as well as academics like O’Donnell who view the citizenry as existing to be subject to authority, it’s not our job as human beings to be compliant with the every whim of the cops.  They’re the ones being paid to “protect and serve,” not to dominate and control.  Worse yet, not to engage in conduct that results in the needless death of people at their hands.  We’re getting just a wee bit tired of hearing the police officer say “oops, it was an accident.”

The problem, at least for me, is that the needless deaths of people at the hands of police are just as tragic as the needless deaths of police officers.  The difference is that when a police officer dies at the hand of a criminal, it’s at the hand of a criminal.  Criminals are, by definition, functioning outside the law, and are behaving in a way that society does not tolerate.  Criminals are not the bar by which police officer conduct is judged.  When deaths occur at the hands of police officers, they can’t be excused because of the behavior of criminals.  Society expects police officers to conduct themselves better than criminals.

And so bloggers are critical when police officers engage in misconduct, abuse, stupidity and violence.  We do so because police officers behave this way.  We do so because other police officers conceal and excuse such behavior by their blue brothers.  We do not cause this behavior, and we’re not responsible for it happening.

If there is any truth whatsoever to O’Donnell’s claim, and I doubt there is, then don’t place the deaths of police officers at our feet.  Cops act.  We react.  If you want to change the equation, go to the source.  And if the complaint is that those of us who report or opine on the improper and criminal conduct of cops encourage or enable those who are otherwise inclined to do harm to police, then there’s an easy way to shut us up.  Stop the misconduct, abuse, stupidity and violence.

What a glorious day it would be if there was nothing negative to say about cops. 

H/T Balko