One of the things that drive people nuts is that others will find absolute certainty in “facts” because the internet said so.  It manifests in a variety of ways, from the media perpetuating a myth (such as the “sharpened screwdriver in the Bernie Goetz case) to facially credible blogs proffering bizarre interpretations of the law.

From  XKCD, a great cartoon that explains one way in which utter nonsense is transformed into internet reality.


Your kids use Wikipedia for their papers and reports. You use Wikipedia as a quick and dirty source. I use it too.  It’s not always wrong, but it’s not always right either.

The question is how many people either find validation for their mistakes on the internet, or innocently think they’ve learned some “true fact” because it says so somewhere on the internet?  This is what we have to contend with going forward, the digital version of a trusting nation that believes everything that appears in writing, no matter how wrong or ridiculous.  Don’t even think about the impact photoshop has on this problem, right Benneton?



H/T Steve Magas

The email spoke about mentoring, but it was really about networking.  The kid needed a job, and was asking anybody he could find whether they could help.  He found me, and he asked.  He wanted to have coffee or lunch with me so I could share my “insight.” 

It wasn’t the overt email, the one that said he was dying to work with me, and sent to 500 lawyers. But it had that sense of desperation to it. I’m a sucker for wanting to help young lawyers.  I responded that I didn’t think I had any “insight” worth sharing, but I would be happy to meet with him.  We set up a lunch to sit down and talk.

He came in a suit, and looked terrific. I came in khakis and a leather jacket, like a preppie ready to rumble.  The question in my mind was twofold, whether he was an entitled slacker, angry that he wasn’t getting the BMW right away, or someone who went to law school because he actually wanted to be a lawyer.  I had something to say no matter which way he went, but one was less pleasant than the other.

He turned out to be the real thing, and I like him.  He wanted to be a criminal defense lawyer, and he understood what that meant.  The problem, he explained, is that with the numbers of unemployed lawyers walking the streets like zombies,  The Legal Aid Society, the private institutional defenders, won’t even look at lawyers without experience.  Why take a raw recruit when they can get a seasoned veteran?

He explained that he was happy to work for free, to carry bags, to fetch coffee.  He would sit in the hallway, on the floor, next to the copy machine, if it would allow him to get some experience.  But even private criminal defense lawyers didn’t want him for free.

I explained that n00bs were a problem: they sucked up time and oxygen, and made lawyers feel bad.  The time it took to think up busy work to keep them occupied, to answer the incessant questions, to try to provide some work that would grow their ability to actually practice law, had to come from somewhere.  And if we just let them sit in the hallway counting their toes, we would feel awful about it.  Nobody wants to feel awful.

There were a few ideas about things he could do for himself, to “network” with real lawyers in a way that held some potential for him to both learn a bit about the practice of law and perhaps meet some people who were in a position to mentor him.  My practice wasn’t going to help him, and he wasn’t in a position to help my practice.  He wore a suit for nothing.  I felt bad about the waste of a clean shirt.

At the end of lunch, he graciously offered to pay the tab.  He should have, since he asked me to go to lunch.  And I told him to forget it, as there was no way I was going to let this nice kid buy me lunch. Don’t get any ideas that this means I’ll pay for your lunch too.  I’m no sucker.  But I was happy to buy this young lawyer a meal.

Afterward, I sent out some emails to some people I know about this young lawyer. Some were friends. Others, not so much. The responses were the same. There’s no place for a new lawyer to go. Nobody wants one.

The implications for the criminal defense bar are staggering.  Biglaw can get them anytime they want, dangling the BMW in front of them like some Pavlovian freak show.  Criminal defense doesn’t have it so easy, offering little more than the opportunity to get your butt kicked daily and be reminded that we’re about as loved and admired as an abandoned pitbull.  And not too many get rich defending people these days. 

Who will be the criminal defense lawyers ten years from now?  Not just the ones whose bread and butter are assigned indigent cases, but even the ones staffing the well for institutional defenders?  Their cadre of slightly experiences lawyers is bound to run dry eventually, and there will be no new group of lawyers to fill their spots.  Working your way up the ladder to someday land a position with an indigent defender isn’t exactly the path to wealth and prestige, and when there are hungry babies to feed, there’s a marked shift in priorities.

Not that I have an answer to this dilemma.  I understand that the money isn’t there for the Legal Aid Society or institutional defenders to field a farm team, to bring these young, enthusiastic, motivated n00bs aboard and prepare them to take over the heavy lifting of more experienced lawyers.  I realize that private lawyers barely have the business to keep themselves afloat, no less worry about student loan payments for the kids sitting in the hallways.

But it’s a problem, and it’s going to become a bigger problem over time.  And spending an hour with a fine young lawyer for whom I have no useful insight puts the problem front and center.  It does nothing to help him, and makes me feel particularly lousy about my inability to help.  It’s a miserable hour.  At least the food was good.

When the House Judiciary Committee held hearings on the Computer Fraud and Abuse Act, and whether common terms of service violations should give rise to criminality,  George Washington Law Professor Orin Kerr was asked to testify.  He was the perfect choice, having been deeply involved with the CFAA for years. Plus, he’s a lawprof and the CFAA is, well, a law.

But what if it was some sociology professor instead?  You know, some soft discipline, related only by tangential concern and whose views are, essentially, no more insightful than some arbitrary guy on the street?  Meh, you say. Who would possibly care?  Given the Academy’s latest infatuation with interdisciplinary approaches, reflecting the elevation of collaboration over relevant contribution, it’s likely that a lot of people would care. 

Take CNN, for example, who provided a bully pulpit to George Washington Professor Amitai Etzioni to opine about the constitutionality of GPS tracking in United States v. Jones, argued before the Supreme Court on November 8th.  His credentials aren’t exactly chopped liver:

Amitai Etzioni is a sociologist and professor of international relations at George Washington University and the author of several books, including “The Limits of Privacy.” He was a senior adviser to the Carter administration and has taught at Columbia and Harvard universities and the University of California, Berkeley.

The intense debate the case has already elicited among legal scholars, civil rights and libertarian activists, and those particularly concerned with public safety and national security is largely focused on the question: what would the Founding Fathers have said about the case? As I see it, at least equal weight should be accorded to the question: How well are our public authorities doing in their dealings with criminals? Who needs more tools and who should be denied access to cyber-age technologies if we are to keep a balance between our profound and essential commitments to privacy as well as our security?

Really? It’s not exactly clear that the legal world is obsessed with what the Founding Fathers thought about GPS, considering that it would have been pretty painful for the horse had they been attached.  But is there any rational basis to suggest that alternative to constitutional concerns is what makes law enforcement easier?  So a sociology academic says.

But Etzioni has some additional insight on the Constitution, and this is a great opportunity to get it out:

To argue that the preceding data show that the government should be given some more leeway is not a violation of the Constitution, but directly sanctioned by it. Unlike the First Amendment, which is worded in absolute terms — “Congress shall make NO law” — the Fourth Amendment bans only unreasonable searches. That is, it recognizes that there is a whole category of searches that are fully legitimate and violate no one’s rights.

As to what is reasonable, it obviously changes with the circumstances. Given that criminals can use freely all the new technologies — including of course GPS trackers, smartphones and spyware — it seems eminently reasonable that the police should also be able to use some of these, especially in public spaces, in which people have no expectation of privacy (or at least should not have one).

Bet you thought the 4th Amendment left it to neutral magistrates to determine whether a search is reasonable, but not according to sociology dogma, apparently. And need we even consider his assumption that the comparison of reasonableness is between the cops and criminals, because nobody would ever search and seize a non-criminal.  Do you get the sense that if someone posed that question to Etzioni, his reaction would be “why would they care, since they have nothing to hide?”

Etzioni’s screed is replete with dumb and dumber ideas about the law, but it’s hard to hold him accountable for being ridiculously ignorant.  After all, he’s not a lawyer. He’s not a lawprof. He’s a sociology professor.  What being a sociology professor has to do with getting a major news outlet to provide him with the ability to spew his opinion isn’t at all clear, but they put him on the soapbox and let him scream. 

The point isn’t that clueless people aren’t allowed to think they have an idea worth expressing, even though I’m not of the view that everyone is entitled to an opinion.  Sure, they may have one, but that doesn’t mean they have a basis for it.  The point is that someone at Cable News Network decided that the mere fact that Etzioni is a professor of something at George Washington University is a good enough reason to offer him the soap box.  He’s a scholar! Woo hoo! He must know stuff, so let’s give him some play.

From the perspective of somebody at CNN, who was told to go out and find somebody who would write something about United States v. Jones in support of the government’s position, any seemingly credible source would do.  If you’ve ever watched the media make sausage, you know how little they either know or care about the competencies and value of an opinion. They need to fill airtime and white space with someone who comes off to the public as somewhat credible. Beyond that, they couldn’t care less.  Sorry if you thought that call from GMA meant you were now a recognized national expert on something. Truth is, it just means the guy they really wanted didn’t answer the phone, so they went down the list until someone did. You won.

The problem is that the vast majority of the public won’t realize that someone with impressive credentials like Etzioni, who may be the smartest guy in town when it comes to sociology, doesn’t know squat about the law. The problem is that anyone who reads this nonsense will be stupider by the end than they were in the beginning. The problem is that he’s a professor, a scholar, an academic, and therefore has attributed credibility which means he must know what he’s talking about.

And if you think lawyers are media whores, never turning away a chance to get their made-for-radio puss on the screen, scholars are worse, even when the subject has nothing to do with their area of academic expertise.  And people pay attention, because he’s a scholar.

H/T Radley Balko

A discussion broke out on twitter yesterday after a twit about a conference that was too mind-numbingly stupid for even the most ardent of Apple lovers.  Under the heading of Learn New Technology or Lose Clients came this ripe offering:

A new seminar titled, “The iPad Lawyer: Real Secrets for Your iPad Success” shows lawyers how to effectively use the iPad in a legal environment.

From this, we talked about how the iPad was a great tool to watch Hulu, or even classic movies like the Godfather, while waiting for your case to be called.  There was no discussion of Angry Birds, but I feel confident that the same would hold true for playing the game while sitting on a hard, courtroom bench.  Aside from that, we had nothing.  It hardly seemed worthy of a seminar.

Sam Glover, honcho at  The Lawyerist and lover of things shiny, took issue.  While admitting that the iPad fell shy of vital equipment, Sam noted that ” it’s pretty useful for taking client files instead of lugging a laptop.”  It apparently didn’t occur to Sam that there was another alternative to iPads and laptop lugging.

I suggested that Sam might consider bringing actual files with him to court, just in case a judge asked for a document, or maybe if his adversary raised an argument that he could destroy with a document in his possession, pulled with a flourish from his file and handed up with verve.

Sam demurred:

I’m usually in federal court, which is paperless anyway. It’s easy enough to email a doc or display it on the ELMO.

In state court, I’ve been able to email docs I didn’t anticipate. Most judges have computers on the bench.

But he did recognize that his experience may not be universal.

My exp is limited to my cases, anyway. It’s never been a problem for me, but others may have run into problems.

This introduction led me to think of the 7 “P”s:  Proper prior preparation prevents piss poor performance.

When things go as anticipated, we all look like geniuses. We have what we need, things go according to plan and we walk away feeling as though we’ve handled the situation perfectly.  That’s easy.  Aren’t we wonderful?

But what we, as lawyers, must be capable of doing is handling the unanticipated, the surprise, the sand-bagging, with the same finesse and skill as that which we expected.  This is what distinguishes a skilled lawyer from a hack.  The hack can manage the routine.  A great lawyer can handle anything.

A while back, Mark Herrmann, in one of his Above the Law columns, made the point that old lawyers turn curmudgeonly because they’ve experienced all the things that can go wrong with a case, whereas new lawyers assume everything will go just fine because they have yet to experience the joy of having unanticipated disaster strike.  Old lawyers begin to think about potential problems before hand because it’s preferable to blowing something.  We know this because we’ve experienced it or seen it happen. It’s not pretty.

Sam’s reliance on his iPad in lieu of an actual file with actual papers isn’t at all novel, and for many newer lawyers, and even older ones who can’t find a healthy young lawyer to carry his briefcase for him, it explains their lack of upper body strength.  After all, files can be heavy and occasionally awkward.  They usually require a briefcase within which to carry them, and many newer lawyers have never come to feel devotion to a briefcase.  Like the wristwatch, these may become accoutrements of the dinosaur.

And Sam may never need to hand a document to a judge.  It may have something to do with his practice area, which I believe is consumer rights (an oxymoron, obviously), or just pure kismet that no unanticipated issue ever arises.  He may be able to get through his entire career without ever risking the possibility of a paper cut.  I truly hope he never suffers one, as they’re terribly painful.

But if the day arises that a judge unexpectedly asks him to hand up a document at a critical moment, his client’s fortune depending on it, with argument and controversy whirling around him and the immediacy of his ability to produce being the difference between success and failure, I wouldn’t want to be standing their empty handed, except for an iPad.

The 7 “P”s are worthy of your consideration, and could spell the difference between success and failure.  To paraphrase Ronald Reagan, hope for the best but prepare for the worst.

The United States Sentencing Commission issued an extensive  report that ripped that hated mandatory minimum sentences.  As described in a New York Times editorial :

A 645-page report from the United States Sentencing Commission found that federal mandatory minimum sentences are often “excessively severe,” not “narrowly tailored to apply only to those offenders who warrant such punishment,” and not “applied consistently.” That is especially so for sentences of people convicted of drug-trafficking offenses, who make up more than 75 percent of those given federal mandatory minimum sentences.

Nothing warms my heart more than a official recognition of the obvious that took a mere 24 years. 

This is a powerful indictment from the commission, which has three Republicans and three Democrats and operates by consensus. The report shows that harsh mandatory minimums have contributed to the near tripling of federal prisoners in the last 20 years, reaching 208,000 in 2009 and putting federal prisons 37 percent over capacity.

Of course it put prisons over capacity. That was the point of the mandatory minimums, to allow politicians to prove to voters how tough they were on crime on the backs of every hated miscreant in the system and usurping the function and authority of judges, who couldn’t be trusted anyway since they have life tenure and don’t need to be re-elected. 

It’s not to criticize this report at all, but to wonder how it could have possibly taken all this time to figure out what the rest of us knew decades ago?  But as all people who screw up royally like to say, let bygones be bygones.  Let’s not hold anyone responsible for the hundreds of thousands of lives, plus all the family members, children and spouses, that suffered for mandatory minimums.  Let’s not demand that anyone be held accountable for the misery, since it was just a political decision, like so many truly bad political decisions, that seemed efficacious at the time. 

And, I can’t help but wonder, if the economy was stronger, whether maintaining mandatory minimums would continue to serve its very important purpose of demonstrating how tough our politicians can be in the name of protecting us from evil mommy drug mules whose children need to eat every day, even though it’s a huge and unjustifiable expense to the public that serves no purpose whatsoever.

With this report from the folks who are supposed to know best, if last, about the functioning of the federal criminal justice system, there is a real expectation that Congress will pay attention to the polls and rid of these mandatory minimums.  The New York Times thinks they should:

The report notes that inequitable sentencing policies “may foster disrespect for and lack of confidence in the federal criminal justice system.” Not “may.” Given the well-documented unfairness, Congress needs to rescind all mandatory minimum sentences.

That’s great. Voters are much more concerned this election cycle with the economy than with the War on Drugs, so it’s the perfect time to toss out this bit of insanity, especially now that the politicians can blame it on the Sentencing Commission and won’t have to take any heat themselves should any constituent bark.

But what of the people in the gap, between the time this insanity began and the time Washington woke up and learned that they really shouldn’t screw with the lives of hundreds of thousands of people to win a handful of votes?  For the defendants whose sentences are served, tough luck.  They’ll never get those years back, the extra seven on a 121 month sentence when a 36 month sentence would have been more than sufficient.

The ones now serving their sentences will be throwaways too.  And the ones in the system now will have a gun pointed at their heads, the government doing everything in its power to flush out their pleas before any change in mandatory minimums can be made effective.  Given the astounding manpower and money that went into these cases that would have been run of the mill state court prosecutions in another lifetime, the government won’t be satisfied having them serve a few years when they had decades in mind.

Don’t be surprised when some pimply-faced lawprofs, whose sentencing sensibilities were developed during the guidelines years because they weren’t born in the olden days when judges actually exercised individualized discretion, start complaining about inconsistency and undue leniency.  After all, these scholars, whose only real-life experience consists of a couple of years clerking for federal judges where lawyers kissed their baby-powdered butts for fear they would wreak havoc with their client’s lives and gave them the impression that they are omnipotent and their opinions were deeply valued by all, never experienced a system where sentences that weren’t calculated in triple digit months were sufficient.

Undoing the craziness of the War on Drugs, the Tough on Crime politics, the insanity that infected our federal legal system, leaves plenty of dead bodies in its wake.  We lack the ability to raise the dead, to undo the damage inflicted on so many when our harshest impulses rules the criminal justice system, but at least we can remember that 24 years later, we finally came to the realization that this was one monumental screw up and not do it again.

And maybe, in the process of undoing the damage, someone in Washington will think about the people sitting in prison who, but for their policies, should be home with his children.  Explain to them why they had to suffer a ten year mandatory minimum, now seen for the ridiculously harsh and pointless mistake it was.

It’s not the sort of thing that doesn’t happen in every state, every county, across the country, a bank wants to foreclose on somebody’s mortgage, and the homeowner isn’t happy about it.  In this case, U.S. Bank wanted to foreclose on Otis Wayne Phillips home, and Phillips wasn’t inclined to take it lying down. 

The problem is that Phillips sought to refinance under the HAMP program, for which U.S. Bank received $20 billion from the federal government. Phillips, being a taxpayer, believed he ought to benefit from his tax money going to the bank in conjunction with having some problems paying his mortgage, and so applied to participate in the program. U.S. Bank said “no.”  That’s it, no. No explanation, no nothing. Just no. So Phillips sued.

Judge Dennis Blackmon in the Superior Court of Carroll County, Georgia, got the case, and U.S. Bank moved to dismiss, arguing that Phillips had no standing.  Here’s Discourse&nbsp

At PrawfsBlawg, FIU lawprof Kerri Stone raises a problem with trying to teach the Slackoisie to become lawyers. They’ve got an attitude problem.  It was first raised by Stone in a comment to another lawprof’s post (which might be worth a link except that Stone doesn’t bother to include one).

…[F]riends from law school, who unlike me, do not teach law students, but supervise junior attorneys in practice… have confirmed that to the extent that students are thoughtless in their approach and interactions with professors, they’re not necessarily polishing up and putting in the effort to be more diligent, considerate, and prepared for their supervisors and clients.

So, for example, a student who asks me questions about what the reading is for that day because he can’t be bothered to consult the syllabus is likely to be the same student who wastes a partner’s time by asking certain basic things about an assignment that are clearly knowable without resort to the partner. A student who expects me to keep track of, look up, and report to her about her absences likely is the same junior associate who, a few years later, is seen by the senior associates for whom she works as having unrealistic expectations that they will keep track of her work, deadlines, and responsibilities and that they exist to make her life easier instead of vice versa.

A student who shows that he cannot be bothered to consolidate questions or proofread assignments or correspondence is likely the same associate who yanks things out of the printer and drops them on a senior associate’s desk as he strolls out of the office, or shoots careless correspondence off to a client or judge without regard for who is going to catch his careless mistakes. These associates quickly tarnish their reputations internally, externally, and permanently. They don’t last in jobs, and they don’t last in practice.

This year, as well, I joined several junior faculty members in creating what we are calling a “working group” on classroom culture. With the goal of identifying and heading off behavioral and other problems in the classroom that seem to be engendered by students’ lack of accountability and/or professionalism, we started off the school year by addressing students at Orientation. Although most of our students do not exhibit a lack of professionalism in the classroom, our goal was to identify what we considered unprofessional behavior before anyone engaged in it so that the discussion could be thoughtful, rather than antagonistic or accusatory.

We identified behavior that had the potential to harm others’ experiences, like a student’s not doing the reading and then coming to class with a series of questions designed to catch her up at the expense of her classmates’ time (and patience).  Aiming to create a culture of professionalism and civility from the outset, we talked about the connection between the habits and mindsets that our students would form and those that they would engage in or subscribe to as working professionals. We talked about the state of the profession and about how many leaders of the bench and bar bemoan what they term a loss of civility and professionalism in the practice of law.

Overnight, the  police cleared out Zuccotti Park while the city hosed it down and threw everything left behind into a big pile.  The word is that the protestors will allowed back, but without tents and sleeping bags, meaning that they’re not going to let them recreate their tent village.

The police ringed the park and set up bright klieg lights, and protesters emerged bewildered out of their tents. Some blew whistles, others urged calm and still others warned each other: “It’s happening.”

It must have been anticipated that this would eventually happen, though the details weren’t clear. It’s certainly better for the protestors to have the police do the dirty work than to have people simply drift away as the chill became too much to bear.  No one wants to go out with the whimper.

So far, everybody is playing their assigned roles, and right on cue.  The only question is who has the rest of the script.  What’s the next scene? Where does it go now?

The drama over the past month has been mostly about skirmishes between police and protestors, here and elsewhere (with Oakland being a particular flashpoint, given the ham-handed handling by boy with clubs).  What is has not been about is ideas to change things that muster widespread, or grassroot, support. 

Aside from some sloganeering, such as “We are the 99%,” there hasn’t been much to grab hold of, and as self-interested groups have sought to co-opt the movement, it’s become a mash of idealistic and self-serving concepts that made for a lousy and confusing fit.  The only thing everyone seemed to agree upon was that they were angry.  Anger isn’t enough to muster the support of the masses.

Some want to crank it up to eleven. Some want their $5000 computer back.  Some will go home and some will try to come up with a new plan because they don’t want to give up.  Ironically, the communities were quickly becoming a microcosm of the society they protested, with issues of theft and sexual assault to deal with.  How long before they developed their own police force, and then their own court system? 

It’s inconceivable that Mayor Bloomberg will allow this group to reconstitute itself, whether at Zuccotti Park or elsewhere.  They had their fun, but now it’s time to get back to business.  Cries for this to be the start of revolution, with resort to violence as the only real alternative, aren’t going to turn this into a real movement.  Movements require purpose, and that’s the thing they’ve never been able to find.

In one sense, it’s unfortunate that what started in Zuccotti Park never found traction beyond manifesting the anger and frustration.  A quick glance at the candidates for president makes clear that they offer neither hope nor audacity.  I can’t shake the image of knock-down clown dolls at a carnival booth.  Or wonder whose hand reaches from behind to make their mouths move.

In a completely unrelated post,  Nathan Burney wrote about the lie that we can all #occupy the corner office, enjoying the “cushy” job so that we never have to get our hands dirty emptying other people’s garbage cans or putting the fuel injectors on cars with Japanese names.  To achieve this American dream, we’ve had to dumb down the criteria to match the sad reality that not everyone is necessarily up to snuff. 

And as we lowered expectations so that no challenged youngster found it too difficult or unreachable, as we devalued education while doubling its price, we found that good intentions left us with many unanticipated problems:

A well-educated citizenry is an absolute must in any modern society. Citizens who can manage their own families, run their own localities, elect the right people to manage governmental affairs, understand what their government is doing and hold it properly accountable, run their businesses and build prosperity. These things do not come to those who were not taught the basics, who were coddled and rewarded for mediocrity, and who are left unprepared to succeed once they’ve acquired their diploma.

We may be the most interconnected people ever, thanks to the internet, with the greatest access to knowledge ever. But we are not turning out enough adults with the wherewithal to take proper advantage of it.

We have tons of college graduates, but too few educated people.

Some of them have been living in tents at Zuccotti Park for the past couple of months.  That they weren’t sitting in their parents basement, munching on Cheetos while wondering why they had no jobs is to their credit.  That they thought sitting in tents in the cold without a solution to their problems was going to change things, make very real problems disappear, was rather pointless. Where will they go now?

There was a video of the defendant chasing down a guy with a gun.  That would be pretty good evidence in a gang-related murder trial of intent, and, as it turned out, it was enough for the prosecutor, defense lawyer, judge and jury.  Except for one detail.  From the  NYLJ (paywall):

The video depicts [defendant Tony] Canales, gun in hand, briskly approaching a man while his prey stumbles on a curb, gets up and runs off camera with the defendant in pursuit. However, the man being pursued—a member of the Crips gang—was not the victim, who at that point was alive and observing the events as a bystander.

Ruling on the post-trial motion, Brooklyn Supreme Court Judge Joel Goldberg ripped the lawyers, when he

overturned a gang-related murder conviction in a case where the court described the prosecutor’s conduct as “grossly negligent” at best, characterized the defense case as “feeble,” and suggested if this was not an instance of prosecutorial misrepresentation, it was certainly one of ineffective assistance of counsel.

Apparently, the only person in the courtroom who figured out that the video had nothing to do with the defendant chasing the dead man, but someone entirely different, was the defendant.  And his lawyer, Alan Stutman, failed to pay attention.  He couldn’t remember whether he showed the video to his client before trial, nor recall whether he had a discussion about it with the defendant.

The defendant, Mr. Canales, said that he saw the video for the first time at trial, was baffled by references to it and told his counsel that the man in the video was not the victim, but to no avail.

Indeed, it wasn’t just “references,” but reliance.

No one identified the deceased in the video, no one who witnessed the shooting testified and a girl who the prosecutor [Lawrence J. Fredella] said had picked Mr. Canales out of a lineup as the person who shot the deceased did not testify. According to the court, Mr. Fredella did not show the video to witnesses, or even view it himself before the grand jury presentation.

Mr. Stutman, the court-appointed defense counsel, erroneously conceded in his summation that the video depicted the deceased, leaving him with “no choice other than to make the feeble argument that chasing the deceased was not inconsistent with the defendant having previously accidentally shot him,” the court said.

While the judge’s characterization of both the prosecution and defense is overwhelmingly warranted, notably missing in his ire is any self-reflection.  Who admitted this video into evidence without proper foundation? Who allowed a video to be played before a jury that depicted the defendant chasing someone other than the deceased?

In his decision, Judge Goldberg notes:

Immediately after the Court called for the jury to be brought to the courtroom to view the video, the defendant requested to speak (T. at 234). The defendant told the Court, “That is not the victim. He made his closing argument yesterday that the guy I’m chasing is the victim. The guy that in front of me is not the victim … I know who Antonio Bruce is, not the kid on the floor tumbling”.

The Court responded by telling the defense that, “If he’s requesting to reopen the case and if he wants to testify, he can testify. I would consider that, but as far as doing anything about it, I can’t do anything about it now.”

Offering the defendant the option of reopening the trial and testifying is the functional equivalent of putting a gun to his head and offering him the opportunity to pull the trigger.  While Canales raised one point, and a point that was both critical and, as the court specifically noted, neglected by everyone else in the room, the defendant was not asking for the opportunity to offer up everything he had ever done as a gang member to the prosecution. 

This often comes as a surprise to non-lawyers, but you don’t get to testify only about the stuff you want to reveal.  All the nasty, ugly stuff comes out with it, and more often than not, defendants aren’t particularly good witnesses, which may have something to do with their failure to attend witness class in the police academy.  Not surprisingly, the defendant passed on the opportunity:

The Court additionally stated for the record that, “The summations were yesterday. The defendant didn’t say anything about this yesterday. He didn’t say anything about this, this morning. He didn’t say anything about it until we got the note….”

The defendant, after consulting with defense counsel, did not take the opportunity to testify.

After all, it’s the defendant’s fault that he didn’t salvage the collective error of everyone in the courtroom and instead, told his lawyer thinking that he would know what to do. 

The confluence of failures in this case goes beyond shocking, beyond outrageous.  Nobody, but nobody, paid the slightest bit of attention to what was happening before their eyes, with everyone taking for granted that the video showed what the prosecution says it showed, despite the fact that the prosecutor’s file was replete with information that should have cued him in to the fact that it was the wrong guy.

Video has become our darling, the ability to see what before was only talked about, and when it came from the defendant’s side, dismissed.  But this adoration of video doesn’t mean everyone skips over the basic details, such as who and what the video actually shows.  That everyone simply assumed the video to show the crime is utterly mind-boggling.  And that no one took the responsibility, which was shared among everyone in the courtroom, for establishing the foundation, the relevance and materiality of the video, smears them all. What an utter disaster, and a blight on the notion that our legal system can be trusted with people’s lives.

And no, the fact that the murder conviction was dismissed on the subsequent §440.10 motion doesn’t mean “no harm, no foul.”  This is as foul as they come.

When we talk about sentences, it’s in terms of months and years, time periods way too long to be overly concerned about the details.  But that’s because we aren’t the people sitting in the can, or children awaiting their father’s return home.  From our distance, a day here and there seems trivial. Not to the person on the inside.

From the Des Moines Register, it appears that prison officials in Iowa weren’t too worried about the details either.

Iowa inmates held past their proper release dates deserve to be compensated for each day they were improperly confined, according to a class action lawsuit filed this week in Polk County District Court.

The lawsuit, filed on behalf of Mahaska County sex offender Richard Scott and other similarly situated inmates, contends that Scott was held for 46 days too long under new rules outlined in a decision this summer by the Iowa Supreme Court.

Based upon a decision by the Iowa Supreme Court, the calculation of prisoners’ sentences “requires that any defendant committed to the state Department of Corrections for supervision ‘who has probation revoked shall be given credit for such time served.’ ”  This meant that about 3500 inmates’ sentences needed recalculating.  The state said it did.

State corrections numbers say discharge dates were checked and double-checked as part of a review completed in early November. That process led to the immediate release of 551 inmates from prison and work release programs and recalculation of a new release date for 2,588 others.

Corrections spokesman Fred Scaletta declined to comment on the lawsuit, but confirmed that “everybody who we believe changed discharge dates as a result of the recalculation, they’re out the door.”

Jeffrey Lipman, who has brought a class action against the Iowa Department of Corrections alleges that “hundreds, if not thousands,” of inmates have been held beyond their release dates.

“On information and belief, the cause of the over-detentions is a collapse of the inmate management system and deliberate indifference by defendants to the rights of detainees and prisoners to be released by their release dates,” the lawsuit contends. “Defendant has taken no action to implement an effective inmate management that can ensure release of prisoners by their release dates.”

Calculating release dates for every inmate is tricky, often contentious business, Whether time before or after the actual conviction, in physical custody or under some variant, is supposed to be clearly defined, and it’s the job of the state to make sure it’s calculated correctly. There there are the credits, which vary by jurisdiction, for good time or programs successfully completed, not to mention options that allow a prisoner to transition back into society, such as work release.  But what constitutes “correctly” is frequently in dispute.

The problem is that, for the most part, that no one is watching to make sure that the state is doing its job properly.  For criminal defense attorneys, the last time we see a defendant is when we shake their hands and wish them good luck as they walk out of the courtroom in shackles. Our job is done and they are entrusted to the care of the state. 

There is a subset of criminal defense dealing with prisoners, often consisting of lawyers in prison towns who handle their habeas claims for lousy food or religious indifference, but their focus is on prisoners who retain their services rather than systemic failures. 

An action like this has to make everyone wonder whether the system, whoever is calculating and recalculating sentences in the backroom of some Department of Corrections building, knows what they’re doing and is doing it right.  On the one hand, it would seem so utterly routine that they should have it down pat, and there’s no chance of screwing it up. 

On the other hand, it may well be so routine that an institutional mistake in the manner of calculation could go on for years, could affect thousands, and no one would know about it.  We would all just assume they know what they’re doing.  After all, they calculate release dates constantly. Shouldn’t they be able to do it right?

For the guy waiting for that glorious day when he once again gets to breath free air, the calculation is critical.  Those of us who’ve never enjoyed the largesse of the state may not think of an extra day or forty to be such a bad thing, but then we can’t begin to understand what it means to serve hard time.  While a prisoner may have done 10 or 20 years, it’s done one day at a time.  Every day matters.  And every day in prison when he should have been free matters.

Whether the Iowa Department of Corrections was wrong and stole days from the lives of inmates through it’s “deliberate indifference” to the proper calculation of release isn’t clear from the article. I strongly suspect Lipman knows what he’s talking about or he wouldn’t have brought the action.  If he’s wrong, he’ll waste a lot of time and money for nothing, and lawyers hate doing that.

But if Jeffrey Lipman is right, that Iowa just couldn’t be bothered to get the release dates right, and held prisoners who, under the law, were free men, then this is a disgrace and he ought to clean their clocks.  There’s no excuse for the failure to release a prisoner when his sentence is completed, his debt to society paid.  It’s just math.  So is the calculation of damages for the days of their lives lost to the state’s failure to do its job right.

H/T Doug Berman