A few days ago, the  New York Times had an insipid editorial deriding the failure of prosecutors to honor their obligation to disclose exculpatory evidence pursuant to Brady v. Maryland.  The impetus for the editorial was the Michael Morton DNA reversal in Texas, where it only took 25 years to learn that then prosecutor, now Judge, Kenneth Anderson, withheld evidence. 

While that was bad enough (except in Texas, where this appears to have become the norm), current Williamson District Attorney John Bradley spent six years doing everything possible to prevent Micheal Morton from getting the DNA tested that would exonerate him.

For six years, the Williamson County district attorney, John Bradley, fought the request for DNA testing, based on advice from Judge Anderson, his predecessor and friend. In 2010, however, a Texas court ordered the DNA testing, and the results showed that Mrs. Morton’s blood on the bandanna was mixed with the DNA of another man: Mark A. Norwood, a felon with a long criminal history who lived about 12 miles from the Mortons at the time of the murder. By then, Mr. Morton had spent nearly 25 years in prison.

The Supreme Court, in an outrageous decision earlier this year, further weakened the ability of wronged defendants to make prosecutors’ offices liable by giving them nearly absolute immunity against civil suits. Justice Clarence Thomas justified the ruling, noting that an “attorney who violates his or her ethical obligations is subject to professional discipline, including sanctions, suspension, and disbarment.” But bar associations hardly ever punish this behavior; judges seldom discipline prosecutors for such violations; and criminal sanctions are rarely imposed against prosecutors.

This is why the Morton inquiry is crucial.

Up to this point, it’s all background, as the real news comes via  Grits for Breakfast and the Austin Statesman :

Grits is shocked, shocked I tell you that the state bar announced it has dismissed the ethics complaint filed against Williamson County DA John Bradley stemming from alleged prosecutorial misconduct in Michael Morton’s false conviction, a development the Austin Statesman reported today. Except … oh yeah … Grits predicted earlier the state bar “almost certainly” wouldn’t do anything.

(Aside: I could have used the official newspaper version of events, but couldn’t deny Scott Henson the credit for having predicted the outcome. Not that it was a particularly difficult prediction, but he nailed it and deserves the credit.)

To the extent that the criminal justice system can be analogized to finely tuned machine, there are some gears that have never quite meshed.  This is one of them, the obligation of the prosecution to “do justice” rather than conceal exculpatory evidence and do everything possible to deprive a defendant of the opportunity prove innocence, all to get a conviction. The system works on incentives, but the incentive for the prosecution to act against its conviction-at-all-costs interests doesn’t work.

It’s not that some prosecutors, as individuals or because of office culture, don’t comply with Brady.  It’s that they do so because they choose to do so. It’s a personal choice, because there is no mechanism to make them.  A system that relies on good will alone gives those inclined toward venality a free hand.

Brady has been a right without a remedy from the start. Decided in 1963, opinion by Wild Bill Douglas, I’ve often imagined Douglas and hs cohort Brennan chortling over how the defense is going to make this one happen.  And it hasn’t, except by prosecutorial oblige.

Dave Hoffman mused about what may (or not) be a yiddish saying: To a worm in horseradish, the world is horseradish.  The Supreme Court sees horseradish.  The Texas State Bar sees horseradish.  Associate Justice Clarence Thomas sees horseradish too.  Not that they’re worms, which would be disrespectful, but the point remains.

The rationale for protecting prosecutors from the consequences of their wrongful actions is that they might be reluctant to risk hard choices in the performance of their duty if they feared personal consequences for failure.  We need brave and bold prosecutors to do the people’s work of convicting criminals, and we would all suffer if they waver in fear for an innocent mistake.  Got it.

Justice Thomas’ understanding in Connick, however, is hard to accept as anything more than an excuse. He’s got people to research how many prosecutors are sanctioned for unethical conduct, and he must have been aware that he was blowing smoke.  The same is true of the rest of the Supremes, and the Texas State Bar as well.  If all they see is horseradish, it’s because they must really like horseradish.

In other words, the gears of the criminal justice system work the way they’re designed only when and if prosecutors of good will choose to make them work.  But for many prosecutors, and from my horseradish view most, they too are worms, and what they see in their horseradish is bad people who must be convicted no matter what. 

The New York Times editorial applauded prosecutors of good will for doing what they chose to do to vouchsafe the Brady rights of defendants. The Supreme Court passed the buck to disciplinary committees to provide the incentive to make recalictrant prosecutors behave ethically.  The Texas State Court did it’s job and exonerated John Bradley, saying he acted ethically and professionally.  Then they all sat down for a nosh of gefilte fish slathered with horseradish.  Yum.

And the Bills, Douglas and Brennan, are laughing at their joke on us.

The conviction of the innocent as a result of prosecutorial impropriety due to withholding of exculpatory evidence isn’t sufficiently important to create incentives to prevent it from happening.  It is more important that prosecutors perform their duty without fear of consequences for impropriety. There is no solution for this problem that the courts will impose. 

Now pass the horseradish and stop complaining.  This is our system, and we’re not going to get Clarence Thomas to admit that he doesn’t love horseradish. No finely tuned machine can work with horseradish stuck in its gears.

On the last day of 2011, a Saturday when people were more inclined to think about who they would kiss at midnight than what part of our American heritage was thrown away, President Obama  signed into law the National Defense Authorization Act.

Via Jeralyn Merritt at TalkLeft :

President Obama today signed into the National Defense Authorization Act, which contains the controversial and objectionable provisions on indefinite detention and restrictions on transfers of detainees from Guantanamo. He issued a signing statement with it that doesn’t ameliorate the damage.

The ACLU says :

While President Obama issued a signing statement saying he had “serious reservations” about the provisions, the statement only applies to how his administration would use the authorities granted by the NDAA, and would not affect how the law is interpreted by subsequent administrations.

As if uttering the words “serious reservations” as he signs this bill will change everything in the history books.  While news of the signing could be found anywhere, I cite to Jeralyn for a reason.  If there was any break to be cut a Democratic President, it would be from an unabashed liberal.  Jeralyn cuts him no break.

The world is our battlefield, according to the U.S. Just shameful.

There are no doubt some, perhaps most, in this country for whom faith in government and desire for safety and order will not only allow them to shrug this off, but even support this initiative.  They’re terrorists.  The President says so, and that’s good enough for me.

Having bought into the amorphous war on terror, because the war on drugs worked out so well, the way is paved to enjoy the two tier system just created in derogation of the freedoms and protections that grace the lintels over our government buildings.  We recite the platitudes, while we slide down the slippery slope “with serious reservations.”

What processes led President Obama to flip-flop, to acquiesce, to sign this bill into law, isn’t clear.  Is it because of the upcoming election, where he fears being labeled soft on terror?  Is it because he fears a battle with Congress, and the show of weakness if they override his veto?  Or perhaps because he believes that whoever sits in the oval office is so trustworthy, so perfect, that he should hold the power to defy basic constitutional precepts?

In the long run, it doesn’t matter.  There will always be an “enemy” of America.  And if there isn’t, we’ll create one.  Without an enemy, we wouldn’t appreciate the protection our government gives us nearly as much, and they want to be deeply appreciated.  Of course they realize that this law will live in perpetuity. They aren’t stupid.  Not all of them, anyway.

The ACLU statement following President Obama’s signing called this a “blight on his legacy.”  While true, it fails to fully appreciate what has happened.  Years from now, no one will care much about Obama’s legacy.  Whether third graders are taught that he was the next Kennedy or Hoover won’t change a thing.  What he screwed with here is our legacy, the constitutional legacy of Americans.

It’s not entirely without precedent.  There was the detention of Japanese Americans during World War II.  There was the Gulf of Tonkin Resolution.  There have been bold acts by our government that have, in retrospect, been recognized as not merely horribly wrong, but fundamentally contrary to our legacy.  At the time they happened, the important politicians of the day explained why the problems they faced were so different, so demanding of extreme measures, as to justify a fundamental departure from our legacy.

Each time, they were wrong, and their decision haunted them.

Will history repeat itself?  Will we wake up in a year, or ten, and remove our collective heads from the dark hole in which it now hides, and realize that we’ve allowed a transitory desire for safety to trump our legacy of freedom?  Perhaps.  It’s also possible, however, that we have become so inured to a world of diminishing freedom that as long as there is a bogeyman to blame, Americans will sleep peacefully at night regardless of the power the government takes for itself to protect us from the enemy.

There will always be an enemy.  The war will never end.  And our President has signed to himself and those who will follow him in office the power to override the Constitution when he chooses to do so.  That he has “serious reservations” brings little comfort.  He’s free to screw up his own legacy, if that’s what he wants to do, but this is a blight on our legacy.  Just shameful.

As awful as one might view the sausage-making in a criminal courtroom, it’s downright sanitary compared to the slaughterhouse of immigration court.  For United States citizens, even those whose backsides have left a permanent imprint in the courtroom bench, there’s little concern about it.  After all, they’re immigrants. They’re not “real Americans,” so what difference does it make what happens to them.

As states craft laws and send out police to further harass anyone with a vowel at the end of their name, an accent, or (OMG), a dark complexion, there aren’t many “real Americans” who worry about their treatment.  At best, they have their own problems. At worst, they applaud such indignities, better to get rid of those “illegals,” as any immigrant is called, even if they’re just hijacked off the street and thrown on a bus to Tijuana. Adios, muchachos.

Nonetheless, the United States actually maintains a legal system of sorts for the purpose of determining whether immigrants, individuals who are here lawfully but have yet to attain (or, for whatever reason, have chosen not to try) naturalized citizen status.  You remember citizen status? It’s what your grandfather was granted when he wasn’t exactly a desirable neighbor, yet he got his chance in a nation that embraced him when his own was all too happy to see him go.  The nation that treated him fairly, when there was little he could do to obtain fairness on his own.

As the  New York Times editorial notes, our very own immigration courts have become a stronghold of arbitrariness.

In Judulang v. Holder, the failure was total: a decision on deportation that made no sense. As Justice Kagan pointedly wrote, “We must reverse an agency policy when we cannot discern a reason for it.” That judgment, unfortunately, applies to much of the snarled and absurd processes in the immigration courts.

Way back when, there was a safety valve for non-citizens who were convicted of a crime.  Criminal defense lawyers may not have known much about immigration law, but we all knew §212(c), an application for relief from the sometimes onerous punishment of deportation following a criminal conviction.  But they’re criminals, you say. They don’t deserve to remain here, in the greatest country the world has ever known.  And when the citizen, one step removed from immigrant status, does the same dirty deed, you can hear them screaming about due process throughout the courthouse.

There were certainly bad dudes with a green card, who came here two weeks ago to sell a few kilos or knock over a liquor store.  But there were also people who arrived at two weeks old and lived here for the next 27 years, working hard, paying taxes, marrying the girl next door and having beautiful babies. The only thing they didn’t have was their citizenship papers. We treated them both the same, except that the latter could find solace in a §212(c) waiver of deportation.

Then Congress repealed it, because it was too reasonable, but the door was left open just a tiny crack under the assumption that the folks who ran the immigration court cautiously use it to limit the worst of the new laws harsh applications.

In determining whether Mr. Judulang could apply for a waiver from deportation, the board looked to a repealed law, which dealt with excluding aliens from admission to this country. If the basis for deporting an alien is “essentially equivalent” to a basis in the law for excluding someone, the board said, the deportee could apply for a waiver. But it ruled that Mr. Judulang could not because the grounds for his deportation were not comparable to the grounds that apply to exclusion.

Justice Kagan properly pointed out that this analysis was essentially arbitrary. The board made “an irrelevant comparison between statutory provisions,” which had nothing to do with Mr. Judulang’s fitness to remain in the United States. Instead, it turned a deportation decision into a “sport of chance,” like “flipping a coin — heads an alien may apply for relief, tails he may not.”

The immigration lawyers I know have told stories about the bizarre and arbitrary treatment of their clients for years.  They talk about immigration judges who make no sense at all, who wave their hand and make any semblance of law disappear.  The immigration judges treat the lawyers only slightly better than the treat the clients, who they treat like dirt.  That such a fiefdom exists in the underbelly of the legal system, where immigration judges are largely ignored by real judges under the claim of “deference,” and where the lawyers, usually grossly overburdened and underpaid, struggle to explain life down the rabbit hole on its best day, are more likely to be chastised for sloppy work in comparison to other federal practitioners rather than be appreciated for managing to get anything done at all.

The the Supremes took this case at all is something of a shock.  Nobody wants to look too closely at the festering boil of our immigration courts. That a unanimous Supreme Court held Board of Immigration Appeals’ application of §212(c) to be “arbitrary and capricious” is absolutely extraordinary. 

It’s ironic that the system developed to deal with those who come here seeking a better life for themselves and their children are subject to the very worst our legal system can dish out.  With all the problems confronting the nation, not to mention the ones that weigh heavy on lawyers in trying to keep a fragile legal system from failing altogether, the nastiness of life in immigration court rarely makes our radar.  That the Supreme Court, unanimous at that, smacked the BIA for its arbitrary treatment of immigrants under §212(c) should make us proud.

This is no longer a nation that thinks well of immigrants, and concern for their fair and lawful treatment isn’t going to get anyone elected to dog catcher.  And yet the Supremes did right by them, and by us.  If only we could clean up the rest of the cesspool of immigration court.  But then, you’re a citizen, so what do you care? 

For the fellow Luddites who read this, you’re going to need to know what Godwin’s Law is in order to understand what follows.  Also known as Reductio ad Hitlerum,  Godwin’s Law states:

“As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1.”

Put less mathematically, it means:

Godwin observed that, given enough time, in any online discussion—regardless of topic or scope—someone inevitably criticizes some point made in the discussion by comparing it to beliefs held by Hitler and the Nazis.

While formed in humor, no one who has spent time in the virtual world doesn’t realize that Godwin nailed it, that all argument and discussion devolved to the most simplistic, the lowest common denominator. You will not see a reference in a comment here to Hitler or the Nazis.  Not because they aren’t made (they are, all the time), but because I refuse to allow it to post.

There is a branch of Godwin’s Law that applies specifically to criminal law blawgs, which brings me to Corollary 92, addressing any aspect of our fragile criminal justice system by Reductio ad Tyrannidem: Every example of impropriety or abuse by police, prosecutor or judge proves that we live in a police state, our elected officials are tyrants and the Constitution is dead.  It’s usually preceded in its expression by the words, “the real problem,” or a variation thereon.

To arrive at the conclusion, every issue is reduced to its simplest, least nuanced, unidimensional form, as is the case with Godwin’s Law, the battle of good and evil.  While I can appreciate the anger and frustration felt by those who run headlong down this path, and sometimes share the sentiment, it’s not helpful.

First, it’s wrong. You think otherwise, which is fine but irrelevant.  While the depth of thought attempted here may not rival the great philosophers, it remains above the median of a rock convention. This is a law blog, written for the purpose of discussing, understanding, critiquing and applying the various aspects of the criminal justice system to the world in which we live and function.

A comment that states an unsupported opinion is not an argument that demands address. It’s nothing. You think so? So what? This is particularly true of anonymous commenters, who invariably think their assertion that chocolate taste far better than vanilla proves their conclusion that all cops are evil. It proves that you are wearing a tin foil hat (internet shorthand for “you’re insane/irrational”).

Any point that relies on your personal experience or observation is meaningless in the absence of a demonstration of your credibility. Credibility is not self-attributed, even though you are absolutely certain that you deserve the trust and approval of others because you know how right you are.

Familiarize yourself with logical fallacies. These are the rules by which thoughtful argument happens, where commonly used but meritless arguments are bandied about among people who lack the capacity to distinguish a valid point from an assertion that may seem superficially valid but fails to comport with basic logic.  There are a lot of logical fallacies, and most people use them regularly to make their points. Even lawyers use them on occasion, whether because they don’t know better or they are trying to trick the unwary.  But they are fail the test of reason, and rather than sustain your position, reveal you as irrational.  Be rational.

This is not meant as a means of denigrating the views of non-lawyers, though lay-people most frequently violate Corollary 92.  But lawyers often do as well, whether because their grasp of reason is poor or they wear a tin foil hat that matches their three-piece suit.  Sometimes lawyers are as frustrated with the system as anyone else, often because they deal with it more intimately and regularly than anyone else, and grow tired of the effort of defending or explaining every subtlety. Understandable as that may be, it’s unacceptable in that it contributes nothing to a greater understanding of the system.  Irrational lawyers are worse than irrational non-lawyers. We have no excuse.

Finally, it doesn’t matter whether your point agrees or disagrees with mine, a detail that causes more anger than any other. You agree, and thus find my critical reaction offensive because “we’re on the same team.”  This isn’t a team sport. A ridiculous, ignorant, irrational comment that agrees with me is no less ridiculous, ignorant and/or irrational. There is a rule here, that no one should be made more stupid for having read something here.  It’s a hard rule, I know, but one which I will do my best to enforce.

Corollary 93 is more a matter of mechanics than substance. If you failed to make a valid point in your first comment, chances diminish considerably in your next 12.  If you failed to make a valid point in 100 words, spreading it out to 3000 won’t help make your point any more valid.

If your point was disputed once, responding with increasingly emphatic insistence that “NO, I AM RIGHT!!!,” using typographical gimmicks to enhance the appearance of your argument, copying in the text of the Fourth Amendment with the obligatory “it means exactly what it says,” referring to Publius or Federalist Paper 37, citing Marbury v. Madison, etc., is not going to win the day.  I realize you think it should.

If you’ve made your argument and it hasn’t received the reaction you desire, do not repeat it more emphatically. Others will read it and the response and make their own decisions. There is no “win” to be had. Stop digging.

This is a law blog. It is not a political blog. There are many political blogs, where points, no matter how irrational or misguided, are applauded because they comport with the goals the blog seeks to promote. If that’s what you seek, find a political blog that suits your taste and you will be embraced by others who share your views.

In 2012, a goal at Simple Justice is to elevate the tenor of discussion and thought. The insanity and stupidity are wearing on me, and just because you have a keyboard and internet access doesn’t mean you have something meaningful to contribute.  Your cooperation is appreciated.

Karma may be the cosmic law of moral causation, but in Pinellas County, Florida, its apparently grounds for arrest.  As Radley Balko reduced it to a twitter equation :

Zero tolerance + anti-bullying backlash + Internet = Criminal charges for an innocuous Facebook post.

Allie Scott is a junior at Osceola High School. The 16 year old says it all started in the school parking lot last month when she parked her brother’s car in another girl’s spot. She was asked to move it, and when she did at the end of the day, the car had been scratched up with a key.

Without naming who she thought did it, she posted this comment on her Facebook page: “Oh, so you keyed my car. Your karma is going to be a whole lot worse than that.”

Whether karma means what she thinks it means isn’t the point. It certainly wasn’t the point when she and her mother were called into the school administrators office, where they were met by the Sheriff and learned that Allie would be charged with stalking.

There are so many ways to consider the depths of stupidity plumbed by this bizarre use of law to address conduct that, at least arguably, smells of crime.  But this conduct, telling someone that karma is going to bite her in the butt, is too far a stretch for any rational person.  But then, Schools Have Rules, and rationality is never a consideration when it comes to the rote application of discipline.

Allie Scott was suspended for three days for leaving her karma content, which in itself seems sufficient to blow a share of a pension for whatever administrator came up with this brilliant punishment.  More importantly, she’ll carry the stigma of both the discipline and the arrest, even if someone in the Pinellas County prosecutor’s office makes a half-thoughtful decision to toss the case and ream out the sheriff for bringing humiliation and shame on law enforcement.

But then, it’s Florida, and Florida has never been known to let thought interfere with prosecution.

The unholy consortium of knee-jerk liberal protectionism (no child’s knee should ever be skinned) and staunch law and order conservatism (no paper cut should ever go unprosecuted) has resulted in a grocery clerk’s wet dream.  Radley’s equation is painfully accurate, with the removal of all reason from our absolutist treatment of children.

Do we absolve Allie because of free speech?  Do we absolve her because there was no harm done?  Do we absolve her because there is simply nothing criminal, not even wrong, about writing to another that karma will fix her wagon?

To call the arrest of Allie Scott crazy is to state the obvious. That both a school district and a sheriff’s office would nonetheless indulge in such insanity is the piece that would make a good subject for Kafka.  Our treatment of our children has to involve some greater degree of independent thought than reflected here, and yet neither schools nor law enforcement seem capable, or willing, to risk censure for failing to adhere to formulaic reactions.

It’s quite possible that Allie’s Facebook posting hurt another girl’s feelings, though even that isn’t necessarily clear or justifiable.  These days, it seems any comment shy of “you’re awesome” hurts someone’s feelings.  The teacups will no doubt inform me that I don’t appreciate how horrible it is to feel badly about oneself, the latest craze in wallowing in victimization.  If uttering the word “karma” is enough to set someone off, imagine the damage to self-esteem the old “sticks and stones” saw would do.

What’s lost in the insanity of rule by rote is that there is real harm done, just not to the purported victims.  Perhaps Allie Scott is the nastiest girl in Osceola High School.  Perhaps she’s up for valedictorian and a shoo-in for the Ivies.  Who knows?  Regardless, there is no justification for tainting a 16-year-old girl, for shutting one’s eyes, putting on that smug administrative smile, and checking off the box that will impact the rest of her life.

For a society that uses ‘for the children” as its rationalization of so many dubious initiatives, isn’t it worth the five, maybe ten, minutes of thought necessary to recognize that the equation doesn’t apply.  Would it kill a school administrator to take the chance of some mother’s reproach by saying, “no, she didn’t do anything wrong”?

These are children.  We care about them, all of them.  If real harm is done, we need to deal with it, but we also need to be able to distinguish between actual harm and the mindless application of rules by grocery clerks.  Spend the five minutes. Think about whether the conduct involved demands the application of the equation.  Don’t be the instrument of harm.

And if you’re worried about the other kid’s mother calling you a name in front of the school board for not protecting her darling teacup from feeling bad about herself, be aware that the internet might have some unpleasant things to say about you as well.  And that goes double for the Sheriff, who can’t possibly think that arresting Allie Scott for uttering the word karma on the internet was a sound decision. Yes, karma is a bitch.

This idiocy is harming our children.  Stop doing it.  Stop doing it for the children.  Is any of this getting through to you?

Every few days, the question arises whether there is still enough vitality in the blawgosphere to keep it pumping.  The early days were heady, as the terrain was wide open.  Every subject under the sun was fair game and novel. 

Over time, ennui sets in.  Subjects have been covered, and covered again. Fights have already been fought. Only the self-promoters have no qualm about repeating themselves, lest any potential client not know how deeply they care.  Despite this, the criminal law blawgosphere has defied the trend, and the nominations this year show how intelligence and dedication have prevailed, despite the flooding of the blawgosphere by words and ideas sacrificed to self-aggrandizement.  Having been around here for a while now, few things make me prouder to be a blawger.

The 2011 nominees, as with their predecessors, were a diverse group, but showed how criminal law blawgers are taking the medium in new directions.  In what I’ve already noted as perhaps the  most significant work done by a blawger this year,  Nathan(s) Burney’s tumblr,  The Criminal Lawyer’s Guide to Criminal Law, is a foundational work that I fully expect to see bound and distributed to every student in America. While certainly worthy, this award is for a blawg post, and Nathan(s) work is on to bigger, better things.

In a three–part  series of posts, almost-lawyer Radley Balko did an exceptional job of debunking common, and self-defeating myths about criminal law.  To appreciate the importance of these posts, it is impossible to go to most non-lawyer blogs or boards where, to this moment, you won’t see these myths resurrected and spread like a thought-cancer.  But the best, and worst, aspect of Radley’s series is that it ran in Huffington Post, where Radley is the agitator in residence.  It’s thus seen by a far broader and larger audience than one finds in the blawgosphere, but Huff Post will never be mistaken for a blawg.

Finding humor in criminal law is easy, particularly of the gallows sort.  But putting it in writing, and doing it over and over, is brutally difficult.  It’s been tried by others as to the law in general, and tends to burn brightly until it flames out.  This year, anon PD  Appellate Squawk has taken no prisoners while allowing us to laugh at the nightmares we experience every day. Given the pervasive pain and suffering that comes of criminal law on its best day, we most assuredly need Squawk to keep up the effort to give us a laugh where we would otherwise cry.

One of the more obscure posts that was nominated was the exceptional and honest recap of young lawyer Marcus Schantz, detailing the travails of his defense of a cop shooting, ending in an acquittal.  It’s not merely an incredibly moving account of his experience, but one in which no criminal defense lawyer can’t share the feelings along the way.  This post was clearly a contender by content, but sadly was the last post of his nominal blawg, which has gone silent since September.  Hopefully, 2012 will see Marcus take up keyboard and resurrect his blawg.

There were two incredibly moving posts, one by  Mirriam Seddiq and another by Mr. Emotional, Brian Tannebaum, that brought poignancy to the year’s travails, forcing us to confront our inability to make meaningful headway in efforts to end the violence and harm done in the name of Order.  Eric Mayer wrote his letter to the police, one that most of us wish one of our brothers in blue would read.  But they won’t.

This year also saw a first, the nomination of one of  GW Lawprof Orin Kerr’s posts about computer crime. No lawprof post has ever been nominated before, and that’s a shame.  Even though they tend not to follow the sensibilities of criminal defense lawyers, Orin’s work is both excellent and incredibly informative, if occasionally infuriating. We need to remind ourselves not to stay in the echo chamber, read and consider only those writings that confirm our ideas. Without question, Orin provides some of the most well considered and fascinating writing on cutting-edge criminal law issues in the blawgosphere, and should not be missed.

It likely comes as no surprise that some of the hardest hitting work was done by Ken at Popehat, who not only deconstructed a scam investigation, but took on a great many unpleasant battles this year, including the  violation of Amy Alkon at the hand of TSA Agent Thedala McGee.  But as Turk noted in the nominations, the raw emotion of  Amy’s own post spoke for itself.

As the nominations showed, the scope, breadth and depth of the content of the criminal law blawgosphere reflected its vitality and commitment to making people smarter, better, for having spent some time here.  Not every blog can say that, and some, particularly in other areas of practice, are consumed with smarmy self-promotion or mind-numbingly stupid content that assure that readers will leave worse than they arrived.  Somehow, the criminal law blawgosphere remains blessed, refusing to succumb to the worst nature of the internet.

It was a severe struggle to come up with this year’s winner. Not only was the competition so fierce, but the nature of the content so diverse.  It’s like comparing apples and Fords.  And yet, one blawg post ultimately stood out for its overarching significance and profundity to the blawgosphere, to criminal law, and to lawyers. 

The greatest reluctance comes from the fact that this blawger is someone with whom I’ve gone for the ride over the past five years, and whose contributions to the blawgosphere are almost too large, too great, to capture in any particular post. it’s like telling Fred Astaire that he’s a pretty decent hoofer.  And yet, this year’s award for Best Criminal Law Blawg Post goes to Mark Bennett for his post:
 
Schadenfreude, Irony, and The Defense Function

Mark doesn’t need another award to recognize his exceptional quality and vast contribution to the blawgosphere, particularly from the likes of me, but I hope he will accept this with my deep appreciation.

NOMINATIONS ARE NOW CLOSED

• Anybody can “nominate” a post for the honor, including their own.  SJ posts are off limits.  You can nominate them anonymously, with great fanfare, just by name or with a detailed explanation of why you think a post is the best.  It can be a post from a criminal defense lawyer, a prosecutor or a non-lawyer, provided it’s subject is criminal law.  It can even be a post by a lawprof. You can nominate up to five posts.
  
• For this contest, and for this contest only, I will allow links to be included in comments to the posts (not just the blawgs, but the actual posts) nominated.  Spam links will be treated harshly.
  
• 
  

  This is a chance to think back over the year and give everyone some great posts to read, to ponder, to discuss and maybe even change some minds.

And just to be clear, it doesn’t matter if you’re brand-spanking new or an old hand, a dear friend or a complete unknown.  This is all about substance, not popularity, tribes, networking, branding or bonding.  If I smell anyone trying to use this as a marketing opportunity, they’re out of here.  Spam = banned.  If I smell anyone trying to use this for inappropriate purposes, it will end up backfiring. Trust me.

I invite anyone and everyone to offer the best the blawgosphere has in criminal law.  Spread the word, and let others know that this is their opportunity to show their stuff, get a backlink, and let the rest of the blawgosphere know what they’re doing.  

To avoid a problem that arose with last year’s nominations, I’m putting a limit on nominations of five posts, so no laundry lists this year.  This is about quality, not quantity. Put some effort into coming up with posts you think are best.  Yes, it’s hard work. Tough it out.

Nothing here at Simple Justice is eligible, so don’t waste a brain cell thinking about it. 

The winner will be announced on New Years Day.

Judging will be entirely on my shoulders, and I will be as arbitrary and capricious as I please, so there’s no complaining about the choice.  That said, I will do my best to select the blawg post that best reflects our finest work, our highest tradition, our deepest thoughts and our best purpose in putting words on a computer screen.  For anyone who doesn’t trust me to be fair, find a better offer elsewhere. 

Best of luck and I look forward to seeing some great stuff.

Clarification: First, all nominations must be in the comment to this post. DO NOT SEND ME EMAILS. You can comment anonymously if you want, but you have to do it yourself.  For the purpose of his post, I will not do the dirty work for you.

Second, this is for best blawg POST.  This means a specific post, not a blawg (or blog) in general.  You like X Blog? Groovy, but irrelevant for this purpose.

It’s not easy to appear dignified as you strut down the boulevard in hot pants and eight-inch spikes, yet that’s what’s demanded of candidates for judicial office.  Try running in eight-inch spiked heels. The reality is that candidates are constrained to use the limited fodder available to them, make it comprehensible to a broad array of voters who are unlikely to share the cloistered sensibilities of their overseers, and win their vote, if not their hearts and minds.

It Ain’t Pretty and We Should Not Pretend That It Is.

In Ohio, Mark Davis was sanctioned by a  public reprimand for “falsely stating his academic credentials,” and, outrageously, defiantly arguing his cause rather than cowering on the floor in remorse.

The record reveals the respondent equated the major and minor courses of study in his undergraduate education to additional degrees earned at Miami University and the Ohio State University Moritz College of Law. In addition, he designated a certificate earned during law school as an additional degree to his juris doctorate degree. The designation of major or minor courses of study and a certificate at institutions of higher education as separate degrees is not an accurate representation of the actual degrees awarded by each institution. Only two degrees were earned by the respondent, not six separate degrees in a seven year period.

Davis, as characterized by the court that ruled against him, argued that his majors and minors, as well as his certificate, were the functional equivalent of degrees, which was roundly rejected.  Between the lines, however, Davis’ point is not only clear, but quite understandable. He was trying to communicate educational accomplishments in a short yet understandable fashion to voters who may not share the court’s nuanced grasp of high education. 

It’s a clash of the technical against the practical, but as a candidate running for office, Davis was caught in a Catch-22.  He needed to get his point across to a group of voters who had neither the patience nor interest in a lengthy, detailed explanation that would likely be subject to misunderstanding anyway.  So he tried to cut it into a bite-sized nugget, for which he was publicly smacked.

Shari Michels found her eight-inch spiked heels similarly uncomfortable running for civil court judge in Manhattan, earning her  an admonition from the Commission on Judicial Conduct.

Judicial candidates are held to higher standards of conduct than candidates for non-judicial office, and the campaign activities of judicial candidates are significantly circumscribed in order to maintain public confidence in the integrity and impartiality of the judicial system.

Don’t wobble in those heels, ya know.

Respondent’s campaign literature, which was widely disseminated and which respondent herself had reviewed prior to its distribution, was inconsistent with the ethical standards. Viewed in its totality, the literature was misleading in that it juxtaposed respondent’s photograph with that of another candidate, Rita Mella – who had not given permission for her likeness to be used by respondent’s campaign – and positioned the language “Endorsed by the New York Times” in such a way that it could be construed as referring to both candidates, when in fact respondent did not have the Times‘ endorsement.

Except the palm card was produced by the political clubs who nominated Michels, as well as Mella, for the post.  As for the Times‘ endorsement, only two facts make the conclusion hard to swallow. First, there’s no finding (nor could there be) that it was misleading, but merely that it “could be construed” that way. That’s an awfully wiggly line to hang a candidate.

But the more significant issue comes from the card itself.  There just isn’t anything misleading about it.  It’s about as clear as one can get on a palm card that the Times’ endorsement refers to Mella rather than Michels. This was the conclusion of the hearing examiner, rejected by the majority, and called out in the Commission’s dissent, which reminds the prigs of the Supreme Court’s 2002 decision in Republican Party of Minnesota v. White, holding that even judicial candidates have First Amendment rights.

Of course, we all would prefer judicial campaigns to be elevated, substantive and non-political. However, we cannot characterize as prohibited political activity any conduct which is part and parcel of the very democratic process by which we elect most of our judges. The Supreme Court in White said it this way: “If the State chooses to tap the energy and the legitimizing power of the democratic process, it must accord the participants in that process… the First Amendment rights that attach to their role”

Rights? Make them walk the street and then give them rights? What’s next?

As a Commission, our duty is to respect both the First Amendment and the quandary this system imposes upon judicial candidates. It ain’t pretty and we should not pretend that it is. Therefore, we should give every judicial candidate the benefit of the doubt when there is any margin to do so. That’s the least the First Amendment demands and the least we can do to be fair to the judges who face this unenviable process which is necessary to ply their idealistic, supremely difficult trade.

No one suggests that judicial candidates should be slinging mud, or wrestling in it for that matter, since it’s nearly impossible to get the mud stains out of the hot pants.  But when you demand that they run in contested elections, run on party lines, run at the behest of political clubs who control their concerted campaigns for office, when the hell do you expect?

As the dissent states, judicial election campaigns create a quandary, a conflicting demand that reduces this futile exercise in Jacksonian populism to either a beauty pageant or a party line vote. Either way, it’s a big, old joke, except to the people who are constrained to shake hands, kiss babies, and hand out ugly palm cards because nobody has a clue whether they would make a good judge or not.

So the prigs will smack them for wiggling the hips seductively as they walk down the boulevard?  It’s the system you demand of them, and “it ain’t pretty.”  Either accept it and give the candidates reasonable and fair latitude to do as you demand, or get rid of it if it’s too ugly and adopt a system of appointments,  But don’t blame the candidates for failing to meet your smarmy notions of dignity.  There’s no dignity involved in running for judicial office.

H/T  Eugene Volokh and Steve Magas

When he took on Dick Heller’s case, it likely seemed like a lost cause. A good cause, perhaps, but an uphill fight the whole way. Up the steepest hill you can find. The steepest hill that never ends. Yet Alan Gura took it on, and because he did, the Supreme Court reversed its view of the Second Amendment to the Constitution, restoring it to a fundamental right, in  District of Columbia v. Heller.

For his efforts, District Court Judge Emmet Sullivan smacked him.  From the Blog of Legal Times :

It took six years for the attorneys for Dick Heller to win the D.C. resident, and all Washington residents, the right to possess handguns in their homes. The U.S. Supreme Court made its landmark decision in District of Columbia v. Heller in 2008.

It’s taken another three years for those attorneys, after a lengthy court fight with the District of Columbia, to be awarded their attorney fees.

In a ruling released Friday, U.S. District Judge Emmet Sullivan in Washington awarded Heller’s attorneys, led by Alan Gura of Alexandria, Va.’s Gura & Possessky, just over $1.1 million, about one-third of what they had requested.

To the uninitiated, a fee award of $1.1 million may seem like winning the lottery.  That’s because law is easy and it’s all wrapped up in an hour, like a television show.  They neither see nor grasp the reality, that Gura has dedicated nine years of his life to this case, without any assurance of either winning the point or being awarded a dime.  Regardless of whether you love or hate the fundamental personal right to keep and bear arms, you can’t ignore the accomplishment.

D.C.’s argument against Gura’s fee request in Heller was a diabolically curious one:

Sullivan noted in his 65-page ruling that lawyers for the city had claimed Gura’s team shouldn’t be allowed to “enrich themselves at the expense of the taxpayers” in a time of financial crisis. The judge made it known that he, too, was cognizant of the issue.

“Sensitive to the fact that the fees in this case will be paid by the taxpayers, this Court is left with the difficult task of closely scrutinizing plaintiff’s fee petition to determine what is fair, reasonable, and just compensation for the legal services of plaintiff’s attorneys,” Sullivan wrote.

The lawyers representing the District are paid from the taxpayer’s fisc, but lost no sleep at night. So is Judge Sullivan.  Gura, they argued, was trying to “enrich” himself, that greedy fellow.  Given that the Supremes concluded that Dick Heller was right about the Second Amendment, the government’s use of the rhetoric of evil to characterize the lawyer who fulfilled his oath the protect and defend the Constitution is worse than disingenuous.  If they were concerned for the taxpayer in a time of financial crisis, they should have given back their salaries, as no government lawyer should be paid to argue against the Constitution.

The Heller legal team claimed 3,270 hours of work went into the case. It was cut down by Judge Sullivan based on sloppy timekeeping by three attorneys who came from nonprofits, Clark Neily III of the Institute for Justice, and Robert Levy and Gene Healy with the Cato Institute. No doubt they reconstructed their hours after they won, being neither used to keeping time nor winning and being required to provide a bill for a fee award.

But Gura’s hours, more than 1500, could not be questioned.  What could, however, was their value.

Both sides argued to Sullivan that various matrixes and formulas should be used to determine the correct hourly rate. The plaintiffs’ team concluded that the rates should be $589 per hour for all of the attorneys except Huff, who had less experience. They argued Huff should be compensated at a rate of $361 per hour.

Sullivan called those rates “extraordinary” and not appropriate for this case. “[T]he Court is unwilling to award the high rates requested by plaintiff absent specific evidence that those rates are, indeed, the prevailing market rates for attorneys engaged in complex federal litigation outside of the District of Columbia’s largest law firms,” Sullivan wrote.

Gura’s rate was cut to $420, producing an award of about $662,000 for the six compensable years (but nine total years) he fought for Dick Heller.  That Judge Sullivan called the higher rate “extraordinary” has first year biglaw associates rolling on the floor laughing.  Their paralegals get nearly that much an hour for fetching them coffee. Plus a bonus this time of year.

The matrix employed to determine what, in Judge Sullivan’s words, is “fair, reasonable, and just compensation,” bears no relation to the real world.  From this fee comes the expenses of the case, from copy paper to rent to dial tone.  As this had to be paid all along, since lawyers aren’t given free rent until their ship comes in, Gura financed the defense of our constitutional rights. 

And most importantly, he did so with no assurance that he would win, and ever be compensated for his work.  Not impressed? Well, Gura’s family probably likes to eat every day, just like yours, and the supermarkets don’t let Gura walk out without paying any more than they do you.  Get the picture?

Regardless of whether you think the Heller decision was the greatest defense of the Constitution in a generation, or the worst thing to happen to society since the invention of the Taser, is irrelevant.  The message here is that an outsider fighting the status quo in the defense of constitutional rights not only does so on his own dime, but does so without much expectation of compensation even if he prevails.  This is an incentive to lawyers to stay clear of big cases, hard arguments, the overarching constitutional issues that need a champion.  What Judge Sullivan tacitly told Gura is champions go hungry.

For all the zealots who find it simple to spill a few thousand words on how clear and easy it is the scream about constitutional rights, somebody, some lawyer, has to be the grunt who actually makes it happen.  The risk he takes to secure your rights is enormous, enough to crush a person in spirit as well as financially.  You make silly noise about it.  The lawyer puts in the hard work, long hours, personal risk, that actually accomplishes something. 

Yet Alan Gura, for better or worse, accepted the responsibility of defending your rights.  For his efforts, he was taught an expensive lesson by Judge Sullivan.  For those of you who delight at his accomplishment, rather than send him a love note and your undying appreciation, send him a check, and send another one to the nonprofits who stood beside him.  This may be your entitlement, but its Gura’s work.  If you love your constitutional rights, show it by your willingness to pay the people who defended them for you.

Unlike the doll my sister left naked on the floor, this Ken has balls. Big, bright, shiny brass ones.  When  Marco Randazza described them the other day, he cautioned not to stare, as “we would be blinded by the reflection from their shiny brass surface.” 

His background isn’t quite what one would expect.  Stanford undergrad. Harvard law. Judicial clerkship leading to Assistant United States Attorney.  Smart, for sure, but more natural that he travels the path to big money at Biglaw, or embraces the sanitized world of government service, where his soft, clean hands would never have to touch the dirty hands of those accused of evil.

Ken remained hidden from view for quite a while, allowing him to straddle the world of political opinion without consequence while doing the work asked of him when he made the decision to walk away from the safe hallways of the government;’s wing of the courthouse.  Unlike others who hid because they lacked the guts to own up to their opinions, Ken hid to avoid the appearance of using his opinions to curry favor or seek business.  It gave him the freedom to be critical without suffering the idiots’ reaction that it was a ploy for self-aggrandizement. 

He has since chosen to out himself, meaning I’m now free to write about him.  He deserves it.

The blawgosphere is filled with people who talk tough.  Talking tough is easy, especially when its the sort of thing readers like to hear, beating up on the expected enemies, placing blame on the people we love to hate.  Even the insipid and self-promoting inhabitants of the Happysphere beat up on those listed in the approved enemies list.  But here’s the shocker:  Few, when push comes to shove, have the guts to be the tough guy in real life that they play on the internet.

There are only a handful of bloggers I would want behind me in a knife fight.  Ken White is one.  He’s the real thing.  When someone was needed to stand up, pro bono, for the cause he believes in, Ken was there.  When it was impractical because of distance, Ken was still there.

He may not wear his superhero cape out in public, nor have a pony tail to prove he’s special.  But if the measure of a man is his actions, then Ken White is one damn fine looking fellow.  Robert Redford, eat your heart out.

The end of the year is a wonderful time to look back and give some thought to things that stood out over the past year, perhaps in the hope that it will provide some inspiration to others to follow the path that’s more difficult, more demanding, and serves a greater good than collecting twitter followers and authentically engaging with self-proclaimed thought leaders who might toss you a case.  Ironically, Ken White is as much a thought leader as you will ever find in the blogosphere, though his thoughts aren’t likely to spur any celebrations from social media experts.  The end of the year is a good time to think about Ken White.

There are some very real, very bold, people to be found among the tepid and insipid who feign worthiness in both the courtroom and the internet.  You ought to know who they are.  If you need someone who lives the words he taps on the glowing screen, then look to Ken White.  He’s easy enough to find.  Just send out the Popehat signal.

Ken White stands for something.  He’s someone who matters.  Is anyone blinded by the reflection off your shiny brass balls? 

Addendum: An orthogonal point, as my pal J-Dog used to say.  In an otherwise interesting post, Heather Morse wrote:

How will ANYONE know what great work you are doing if you won’t promote it?

Perhaps this post answers the question.  Be worthy of recognition, do great work, and others will sing your praises.  If no one else does, perhaps that’s an accurate reflection of your work. If you’re left to promote yourself, chances are exceptionally good that you do nothing worthy of promotion. Sorry if this hurts your feelings, but you are not Ken White.