Mainstream media isn’t dead.  At least not when it’s the New York Times, as was proven when Clifford Winston’s op-ed,  Are Law Schools and Bar Exams Necessary? appeared.  Cackles were raised around the blawgosphere, as debunkers typed furiously to show how simplistic, ignorant and dangerous Winston’s ideas were.

Winston’s a dolt.  But he did get his op-ed into the Times. 

The reason is the Winston, a senior fellow at Brookings, got space in the Times is that he and another Brookings guy, Robert Crandall, wrote a book entitled “First Thing We Do, Let’s Deregulate All the Lawyers.” Cute title, right? It feeds into all the paranoid tendencies of people angry that they can’t afford a lawyer but have no clue what lawyers do.  They just know they need lawyers and hate them for it.

So they came up with a solution: Make everyone a lawyer, only  incompetent.  It’s like a $5.99 all-you-can-eat buffet, but most of the food tastes awful and every once in a while, someone is going to get salmonella and die.  The price is right, but you take your chances.

This evoked sharp, thoughtful and powerful reactions in many, including such luminaries as  Elie Mystal, Carolyn Elefant and Nathan(s) Burney.  This Winston wasn’t going to get away with such idiotic heresy, destined to bend stupid minds to his moronic scheme.  Nuh uh.

But what if this was nothing new?  Not the issue, which has been bandied about for a while, but the particulars of Winston’s book?  You see, this gave rise to a whole freakin’ symposium called “Unlocking the Law: Deregulating the Legal Profession,” at Truth on the Market.  There, Bob Crandall argued his case, as did a bunch of lawprofs who, by and large, proved they shouldn’t be allowed anywhere near students or sharp objects.

You missed it?  I didn’t.  I read much of what was written.  I would have read all of it but I kept nodding off.  And then I wrote a post about it.  No really, I wrote a post.  And it sent ripples through the world legal community a few people who had nothing better to do that day.

Walter Olson  knew about it.  He participated in the symposium, where they likely suspected he would be a full-fledged backer of the He-Man Lawyer Haters Club. Instead, he showed the lawprofs up by being the most thoughtful, reasonable guy in the whole symposium.  Worse still, he wrote in language comprehensible to the English speaking world. 

You didn’t read the symposium posts, did you?  Not the ones by the lawprofs. Not the ones by Wally. Not even the ones by Winston’s co-conspirator, Bob Crandall.  You didn’t even read my post.  It’s okay, you won’t hurt my feelings.  There were a great many posts by a variety of people, all of similar mind since there’s no point to an academic symposium if not to be an echo chamber for unsound thoughts, but still, there’s strength in numbers.  And you couldn’t have cared less.

But you did read Winston’s New York Times op-ed.  And it made your blood boil, wondering why the Times would publish something so insipid, so baseless, so…so…wrong.  All those non-lawyers, from pseudo-intellectuals to hipsters to angry birds in Guy Fawkes masks, cheering on this idea without the slightest clue how ill-conceived the arguments and empty the rhetoric.

Aargh.  You’re angry.  Not too angry. Just the right amount of angry.

This time it matters because Clifford Winston’s op-ed appeared in the New York Times.  And that’s because the New York Times still matters.

Don’t cancel your subscription yet. 

Matt Brown at  Tempe Criminal Defense posts about clients who find him from a distance, as opposed to those referred by other lawyers or clients, and the “interview” process.

Whereas the majority of people only care that someone they trust told them to call me and that I have a nice office, suits that fit (more or less), and a bar number, some people need numbers. They want numbers about my experience, my practice, the system, and their case. It’s because numbers make an unscientific decision like hiring a lawyer seem somewhat scientific. It’s a complex decision, and the idea of boiling the process down to comparing statistics comforts some people.

Unfortunately, a little knowledge can be a bad thing. A numbers-obsessed prospective client can easily end up worse-informed than someone who doesn’t ask any questions. The problem isn’t the information, but their perspective. Information, especially numbers, can be misleading without context.

Matt writes of an “interview” where the potential client’s final question pushed the envelope:

They wanted an exact number, so I told them. At the time, the number was fourteen. I immediately realized they weren’t going to hire me.

The number startled them. They asked me how I kept them all straight. Fourteen seemed like a huge number to them. Without a frame of reference, I might as well have told them I was too busy to handle the case.

Chalk this up to the wags who have nothing better to do than post lists of questions on the internet that people should ask lawyers before retaining them.  A well educated consumer researches such things.  And ends up worse off than they began.

The phenomenon Matt describes didn’t exist ten years ago.  Rarely did people run around interviewing a dozen criminal defense lawyers whose names they found online.  They sought recommendations and then acted upon them.  Weeks and months weren’t lost to interviews, not to mention many hours of both lawyer’s and potential client’s lives, in this strange new process.

These lists are asinine.  Even assuming, as was the case with Matt, that the lawyer answers honestly — which those who are desperate may not be inclined to do — it remains what the answers to inane questions mean to the potential client. 

Common questions, such as how many such cases have you done, have become the norm, inevitably followed up by how many did you win.  Except the former ignores that each case is different, and the result in past cases means nothing to future cases.  Still they ask.  Still we answer.  And they walk away worse for knowing.

In Matt’s case, the question about how many cases he had clearly related to whether he has the time to give the potential client the close, personal contact the client demands.  There was a problem with the prior attorney, who Matt describes in glowing terms, not being constantly available to the client. 

The irony is that the client wants the lawyer who has done the particular type of case in question a thousand times before, with great success, but now only carries a couple of cases on his docket.  And while it isn’t mentioned, likely charges of fraction of what others would charge to defend the same case.

Every client seems to dream of the once-a-mega-volume lawyer with an unbelievable amount of experience who decided to pare his practice down to a select few cases. Although that’s not completely unheard of, it’s unusual. I’ve yet to see it on such a grand scale and in under a couple decades of experience.

A little math would’ve made them see that fourteen isn’t that much. A little math would’ve made it clear that thousands of clients in a decade, something indicative of the experience factor most people consider very important in a lawyer, is a lot more than fourteen.

Don’t blame the client.  They don’t do the math.  They don’t think it through.  The don’t add up the experience they want, plus the availability they demand, with the price they can afford.  Sure, they have the capacity (well, some at least) to make sense of the craziness of their interviewing process, but they’ve learned from the internet, from the blogosphere, that they must ask a list of questions or they will make a bad decision.  They read blog posts, and are stupider for having done so. They just don’t realize it. Yet.

In Matt’s case, the potential client left a great lawyer, interviewed Matt, and ended up elsewhere.

Curious, I looked up the lawyer I think they hired. They didn’t stick with the one they had, who’s actually great. The guy they chose had a great website. That’s about it. It boasts that he’s handled “thousands” of cases in ten years of practice. Assuming “thousands” means at least two thousand, I calculate that to be over two hundred cases a year.

Matt doesn’t bad-mouth the lawyer they hired, though the statement that he had a great website suggest more sizzle than beef.  If there’s any good news in this scenario, it’s that this isn’t the client that anyone really wants, as they will flee the next lawyer as well for not being available 24/7 for hand-holding, or not producing the huge win in the impossible case. 

This is the product of those who pretend transparency comes from a grocery clerk’s list, and that everything in law can be comoditized.  The claims of doing it for the client is nonsense.  It doesn’t serve the client. It doesn’t serve the honest lawyer.  The only person who benefits is the lawyer who will say anything to score a case, the one who really wants to get clients from a website who know nothing about him and believe that he’s truly “experienced, aggressive and caring.” 

And even he will end up ruing the day he answered these inane questions, because these are the clients from hell.

The rallying cry of “do it for the children” has grown to meme proportions to those who feel more comfortable at the defense table in the well.  In the past, those who don’t realize the joke have used it to induce something akin to traumatic stress, such as when police and MADD  drove high school students to hysteria believing that one of their own had died in a drunk driving accident as part of a designed program to scare them.

At Wolcott High School in Connecticut, they decided to play the Virginia Tech-card instead.  From Rick Green at the Hartford Courant :

At Wolcott High School one morning this week, an urgent announcement crackled over the intercom: a threatening intruder was in the building and students were told to immediately take refuge in classrooms.

Doors were locked and police, with dogs, moved in. Students stayed huddled in classrooms where they were told to stay away from the windows.

Only kidding.  No armed intruder.  No threat.  No one was going to be murdered. At least not that day.  You see, the dogs were there for an entirely different reason, and since the students were huddled in their locked classroom, not looking out the windows, they wouldn’t know.

But what sounded like a frightening situation was just a search for narcotics. Drug-sniffing dogs combed the school while students stayed in locked classrooms, believing that an attacker was roaming the halls.

Was there a plague of drug abuse at Wolcott High?  Were students overdosing in the hallways, necessitating such an extreme charade to cleanse the school of demon-drugs?

School officials told me it was a routine lockdown drill, the kind that schools are required to do.

“We wanted to practice,” said Superintendent of Schools Joseph McCary. “We said there was a lockdown with an intruder inside. Doors are locked, shades are drawn and the lights are turned off and students are told to move to a corner of the room.”

That’s a double charade, twice fooled. Not only was there no intruder, but no particular drug issue. It was just for practice.

Every fine play has rehearsals, including the passion play of school-wide lockdowns for drug searches under the guise of an armed intruder about to murder students.  What a knee slapper!

Not all parents got the joke, or appreciated the “routine” nature of the show.

“I don’t think the school administration and police department have any right to mislead these kids, under any circumstances, to conduct a public safety drill,” said Carl Glendening, a parent of two high school students. “The kids are told there is an intruder and there is a lockdown and then they see cops coming in with dogs.”

“Some kids were freaked out by it. The notion of Columbine was in the back of their minds,” Glendening said. “We didn’t think this through clearly.”

The school officials may not have the right, but they clearly have the authority.  They need to practice? They have the power. They need to bring in police with drug sniffing dogs? They have the power. Parents don’t like it?  They are the parents, at least during school hours, and extending longer and farther away with every passing court decision. 

The school superintendent, however, was not about to let some overly sensitive parents muck up their rehearsal.

Maybe there’s a few people who get nervous. When we say it’s a surprise drill, it’s a surprise drill,” she said. “We have a very active group of citizens against substance abuse.”

The drug search is “something that is good to do periodically. It says we don’t have drugs in the school,” she said. “Either way it’s a win-win. I know people get concerned … there seems to be an overreaction.”

McCary, the Wolcott superintendent, said they want to teach students to take their safety seriously, so making them think it was real was essential. “If you say it’s just a drill, would you move as quickly?”

But as Green notes, you don’t set the school on fire to run a fire drill.  Granted no one was hurt.  In fact, no drugs were found during the “practice” run of drug dogs through the hallways.  I wonder if anybody told the dogs it was just practice.  But the lack of recognition that they are screwing with children’s heads, in the name of protecting children from themselves, doesn’t seem to matter at all.

It’s not there weren’t lessons to be learned in all this, that school officials are liars, that police are happy to be part of the lying conspiracy, that no at Wolcott cares what the parents think of their children being used in a charade and that the things the fear will be used to scare them into compliance and obedience for the benefit of law enforcement.  This may not be an appropriate way to teach these things to students, but I bet it’s effective.

What makes these ploys so troubling isn’t that the high school students won’t survive the charade, but that they, the very target of so much devotion that they are invoked as the justification for the never ending parade of new laws to make their world perfect, are little more than props in the play.  School administrators show little concern for how the parents feel about their children being lied to, and even less for the students themsevles.

And these are the people in whom we repose trust to care for our children showing their best judgment.

H/T Radley Balko

While blawgers, and even marketing lawyers, think our efforts online are touching a few lives here and there, we’re deluding ourselves.  In the grand scheme of the ether. we are but pikers, tiny gnats of no consequence.  At least compared to the Mommy Bloggers.

I just watched a Good Morning America segment on “mommy bloggers,” the point of which is that there are a host of mommies out there blogging away for loot.  Some get free stuff for their kids from, and I quote, “hundreds of companies,” while another held herself out as professional, supporting her family on her blogging income. 

One of the complaints was by a reader, who wanted to know the best stroller, and later realized that the blogger upon whom she relied was a paid shill.  This was offered as the genesis of the FTCs consideration of bringing blogs under their control, to prevent the mommies of the world from promoting goods without disclosing that they are on the dole.

• Check out KitchenAid’s website and tell me what’s at the top of your wish list.  At the top of my wish list, you’d find this Raspberry Ice Stand Mixer! 
  
• Follow @KitchenAidUSA on twitter, and tell them that @alltheweigh says hi! (one entry)
  
• Tweet about this giveaway on twitter by sharing a link to this post.  (one entry)
  
• Like KitchenAid on Facebook, and tell them Kenlie from alltheweigh.com sent you! (one entry)
  
• Feel free to say hi to me on Facebook too though you won’t receive an entry for that.  I just like connecting with you.  src=”http://www.alltheweigh.com/wp-includes/images/smilies/icon_smile.gif”>
  
• Blog about this giveaway (linking to this post) on your own blog!  Come back and leave a link so I can see it.  (two entries)

Get the picture?  And when the entry requires someone to say KitchenAid is the greatest thing since sliced bread, they will. Why not, if it will get you something free.

In comparison, lawyers get squat.  There’s no appliance company throwing swag our way.  Maybe a book here and there, but that’s about as good as it gets.  I suspect this is a good thing, that blawgers aren’t offered big time swag for writing “reviews” about anything that people really want, as we could be every bit as shameless as the mommies, if not more.

Still, that doesn’t forgive the massive fraud permeating the blogosphere when it comes to shills.  Some mommy bloggers contend that while they’re thrilled to get free valuable stuff, it doesn’t influence their reviews.  Reading some, you realize that the “review” is right out of the manufacturer’s brochure, but still, it’s impossible to prove they weren’t happy with the product.  Of course, when the price is free, happiness is easy to come by.

Some of the mommy bloggers note that they are reviewing products in exchange for a freebie, complying with the FTC requirement.  Others, not so much.  Not only are they enjoying the benefits of swag, but the giveaway allows them to fabricate a level of interest, both in the product as well as their blog, by requiring twits and likes and even expressions of love and adoration.  If it could get you a free blender, would it really be a problem to twit “KitchenAid blenders are the grooviest thing ever?”  After all, you know it’s nonsense.

The point is manufacture the appearance of quality and interest on the internet so that others, considering actually purchasing a good (meaning either too stupid to play the giveaway game, in actual need of an appliance or not such a cheapskate that they will pay for the things they want) see this vast outpouring of positive support.  And it’s total nonsense.

At the same time, it turns up the volume of happy noise and drowns out legitimate voices about the problems suffered by those unfortunates who were foolish enough to buy the stuff. 

In a recent series of posts, Ken at  Popehat went through a detailed analysis of The Anatomy of a Scam.  In the scam Ken describes, there’s nothing legitimate about the scammers efforts at all.  He’s just a scoundrel.

But this involves well-known corporations that produce real products, and yet engage in widespread and overwhelmingly embraced deception of a magnitude that dwarfs the low rent scoundrel.  For a free blender, all you need to do is show how much you love them.  Hardly much of a price to pay for a freebie.

Which brings us to the one things that hasn’t changed since I learned of the great swag being thrown at mommy bloggers: Why is it that lawyers are still deemed so inconsequential that no one throws anything good our way?  We could learn to love you too.

* As for my running battle with the nice folks at KitchenAid who happily took my money but found it inconvenient to satisfy their obligations, though they did apologize for the inconvenience, they have yet to perform their end of the contract and continue to keep my money and ignore me.  On the bright side, my experiment in using social media as a means of addressing their failure to honor their obligations continues, and it appears that significant headway has been made in alerting others that, as much as KitchenAid loves your money, they want nothing to do with standing behind their very expensive products.  The experiment continues, as does some more conventional means of teaching sellers a lesson in honoring commitments.

It’s good to be a senior federal judge. You’ve got nobody to impress and no concern that anything you might do is going to impact your elevation to the Supreme Court. Your climb to greatness has come to an end, and it’s now only about doing the right things.  John Kane in Denver is proof.

From the Denver Post :

The email was from an unfamiliar name, but the subject line was well known.  So I opened it.  First, the introduction, that the writer was an associate of a lawyer who represented a defendant in a large, multi-defendant conspiracy case.  Then came the meat of the communication.

We have been reviewing the discovery materials provided by the government and we are trying to locate a conversation between Smith and Jones in which they discuss 91 kilograms of heroin.  We would like to determine if our client was present during that conversation and/or participated in it. 

If your office has located that conversation, could you kindly please direct our attention to where it’s contained in the discovery materials.

I am unaware of any conversation in which any person discussed any controlled substances at any time.

During a panel discussion at the Asian American Bar Association of New York, Vivia Chen from ALM’s  The Careerist asserted that the blawgosphere has helped to educate and inform non-lawyers on the law, thus making them more knowledgeable.  I strongly disagreed.

My take is that non-lawyers latch on to whatever writings support their preconceived notions, using the fact that a lawyer agrees with them as proof of their validity of their position.  No matter how batshit crazy it may be. Confirmation bias at its finest, if you will.  Do you not think lawyers get fitted for tin foil hats too?

During some recent romps through the blogosphere, I’ve read a variety of posts about law, decisions and governmental actions written by IANAL bloggers with significant followings that were shockingly misguided.  Whether overly simplistic or just plain wrong, there was a theme to be found: They disclaimed adequate knowledge to proffer their opinion, but did so anyway. 

And from comments that followed, they were applauded by a great many other IANAL commenters whose anger and ignorance was bolstered by this public validation of their beliefs.  Then came the kicker, a link thrown in here and there to some lawyer somewhere who supported their position.  Professional confirmation. 

If I was a law professor, I would explain this phenomenon this way:

Earlier this month, I blogged about assertionism — my label for usage claims that sound like prescriptivism, but are actually bare assertions: They don’t rely on any claims about what the (supposed) Linguistic Authorities say, on any detailed logical arguments, or on claims about allegedly superior clarity or precision; they just consist of a person’s bare assertions. And when one asks for evidence supporting the claim, all one gets is more bare assertions. Prescriptivists ought to dislike assertionism as much as descriptivists do, partly because assertionism often comes across as unintentional parody of prescriptivism.

I hope this paragraph makes your head hurt as much as it did mine.  Yes, I’m that cruel.  But I’m not that smart, and so I explain things using smaller words.  We, lawyers, do not have the authority to make naked claims, unsupported by law or reason, that make non-lawyers stupider for having read them.

Lawyers have an ethical duty to educate the public in the law.  We have a concomitant duty not to make deceive them.  While we don’t forfeit our right to free speech upon taking the oath, at least not exactly, we undertake certain responsibilities that constrain our ability to assert whatever we please when it comes to something where our specialized knowledge gives us the appearance of credibility.  We can’t just spew.

You want to spew?  You have fee-eee-eeelings?  You are angry and frustrated because the law sucks, truth to power, David versus Goliath?  How nice for you, the freedom to assert whatever pops into your head, cloaking yourself in your legal education, your expertise, so that the mere assertion by you carries the weight of a professional opinion that others can embrace and hold to their breast.

This isn’t necessarily a criticism of lawyers trying to use the internet to market themselves.  There is no inherent conflict with demonstrating expertise in a particular niche of law for the purpose of showing potential clients that you possess the knowledge and abilities they want from a lawyer.  But if you find it hard to crank out a substantive blog post, or become taken with your ability to reveal your deepest, darkest peeve despite the utter absence of any rational basis, and fill in the blank blog space with it, then there is a problem.

The Hippocratic oath is rumored to begin, Primum non nocere, First, do no harm.  Blawgers take no oath.  The barriers to a lawyer showing up on the internet and offering opinions to as many people as will read them is a dollar and a dream. 

Despite the fact that every lawyer is brilliant (it’s those other lawyers who are blithering idiots), some of the brethren have blogs that offer opinions that are wholly unsupportable, that reflect the pathetic reality that they are wearing tin foil hats.  They confirm the wildest and most bizarre beliefs of non-lawyers. They validate confusion and misunderstanding.

All this leads up to an aspiration that we should all make the core of our efforts in public expression as lawyers. 

Leave no one stupider for having read what we write.

Before anyone points out the obvious, not everything I’ve written comports with this idea, and I apologize for my trespasses.  I promise to do better.  And if you are writing as a lawyer, offering naked assertions that serve to bolster non-lawyers beliefs in the bizarre and ridiculous, do better as well. 

Society is suffering from a lot of maladies lately, and it’s not entirely clear that we have the capacity to cure every disease.  Let’s not inflame the boil of stupidity.  We may not be able to fix anything, but we can certainly not make things worse.

In a 4-3 decision covering a pair of cases, People v. Muhammad, the New York Court of Appeals has done the seemingly impossible, upheld a conviction for First Degree Assault by means of a weapon in the face of the jury’s acquittal of possession of a weapon.  Magic.

Federal courts stay out of the jury room and even make the effort at rationalizing repugnant verdicts, even though it would seem to undermine confidence that the legal system is anything more than a shell game.

The U.S. Supreme Court settled this question for federal courts when it unanimously held that the Federal Constitution does not prohibit a jury from rendering a verdict that is inherently inconsistent (see e.g. United States v Powell, 469 US 57, 63 [1984], citing Harris v Rivera, 454 US 339, 346 [1981] [a jury has the “unreviewable power . . . to return a verdict of not guilty for impermissible reasons”]). The Supreme Court has further declined to address repugnancy under its supervisory powers over the federal criminal process because, among other reasons, “[s]uch an individualized assessment of the reason for the inconsistency would be based either on pure speculation, or would require inquiries into the jury’s deliberations that courts generally will not undertake” (Powell, 469 US at 66, quoted in People v Rayam, 94 NY2d 557, 563 [2000]). Hence, federal courts do not review verdicts under the theory of repugnancy.

New York, however, remains in the repugnancy business.  At least in theory.  In the two cases before it, one defendant was convicted of assault using a gun, the other with a hammer.  Fair enough, except the juries acquitted of possession of a weapon as well.  So then, you have assaults with a weapon, but no weapon. What to do?

Judge Victoria Graffeo, writing for the majority, shows that she can still work the floor mats.

Our standard for judging whether a verdict is legally repugnant was articulated in 1981 in People v Tucker (55 NY2d 1). We held that “a verdict as to a particular count shall be set aside” as repugnant “only when it is inherently inconsistent when viewed in light of the elements of each crime as charged to the jury” (id. at 4) without regard to the accuracy of those instructions (see id. at 7; see also People v Green, 71 NY2d 1006, 1008 [1988]; People v Hampton, 61 NY2d 963, 964 [1984]). The underlying purpose of this rule is to ensure that an individual is not convicted of “a crime on which the jury has actually found that the defendant did not commit an essential element, whether it be one element or all” (Tucker, 55 NY2d at 6). A person cannot be convicted of a crime if a jury has necessarily decided that one of the essential elements was not proven beyond a reasonable doubt.

So far, so good, provided that the little wrinkle of incorrect jury instructions doesn’t cause a hiccup.  So where’s the rub?

Based on the instructions that were given to the juries and viewed from a theoretical perspective without regard to the evidence presented at these trials, it was possible for these juries to acquit defendants of weapon possession but convict them of assault because the former crime contains an essential element that the latter does not: possession. The weapon counts required that defendants physically possess their respective weapons or exercise dominion or control over them (see Penal Law § 10.00 [8]; § 265.02 [1]; § 265.03 [1] [b]). The assault counts, however, required that defendants injure the victims “by means of” the weapons (Penal Law §§ 120.05 [2], 120.10 [1]) and that result could have been accomplished without possessing those instruments.

Theoretical perspective?  Uh oh.  Judge Graffeo goes on to explain that an assault with a weapon could, theoretically, be committed by throwing a person in front of a subway train, the train becoming the weapon even though it’s not possessed by the defendant.  Great example of her point, right?  But these guys had a gun and hammer. Neither one used a subway train.

What’s fascinating about this “theoretical” rationale is its thinly veiled reliance on the notion of jury nullification.

We recognized in Tucker that a jury “may freely reject evidence and exercise its mercy function” by rendering a verdict that appears to be factually illogical. A jury is therefore free to extend leniency and may decide not to convict a defendant of one or more charges notwithstanding the court’s legal instructions.

That’s right, all you Android Anarchists, your beloved jury nullification has come back to bite you in the butt.  Maybe there’s nothing in fact repugnant about the verdict at all, and it’s just a jury being kind to the defendants, showing a bit of illogical mercy and leniency.  Juries are allowed to do that, you know.  Isn’t that what you’ve wanted all along?

The problem with this backhand swipe is that neither the court, any more than the nullification advocates, can have it both ways.  If lawyers can’t argue for, and judges can’t instruct, the jury to make the active decision to acquit despite proof of guilt, then courts can’t rationally bootstrap this possibility into a justification for a repugnant verdict.  Either we can do it or we can’t, and if we can’t, they can’t either.

As long as trial courts play the game of believing that jury verdicts are based on evidence presented at trial, and that the jurors actually pay attention to the charge given by the court as applied to the evidence, it seems that resort to theoretical flights of fantasy to uphold a conviction in the face of a repugnant acquittal makes the criminal justice system appear absurd.  Every case has its facts, and either they mean something or they don’t. Pick a side.

In dissent, Judge Carmen Ciparick lays out what would seem obvious to all:

After all, as the trial court explained in its charge, Muhammad was indicted under a theory that he shot the victim. Thus, it should go without saying that Muhammad could not have shot the victim with a firearm if he did not possess one. The jury, in rendering its guilty verdict on the assault count, also had to find that Muhammad intended to cause serious physical injury to the victim by means of such firearm.

But the obvious is only obvious if one is constrained to decide appeals based upon the facts.  Is that a subway in your pocket or are you glad to see me?

H/T Our hinterlands correspondent, Kathleen Casey 

Taking its decision in  People v. LeGrand a step further, the Court of Appeals decision in People v. Santiago reversed a subway assault conviction, resulting in a 25 year sentence, for the refusal to permit the defense to call an expert to explain why eyewitness identification was unreliable.

The decision, by Judge Eugene Pigott, states:

In this case, turning on the accuracy of eyewitnesses’ recognition of an assailant’s partially concealed face, we consider whether two additional eyewitness identifications sufficiently corroborated the victim’s identification of the defendant, so as to render expert testimony on eyewitness recognition memory unnecessary. We conclude that they did not, and that it was error to exclude much of the proposed testimony.

As with LeGrand, the only evidence of the defendant’s commission of the crime was the identification by eyewitnesses.  The difference here was that the victim’s identification was corroborated by two independent witnesses, raising the question of whether three IDs, in the absence of any physical evidence, sufficiently corroborated each other so as to obviate the defense’s effort to attack the reliability of the identifications by an expert.

By in limine motion, the defendant sought to gain the trial court’s approval of its use of an identification expert.  The prosecution countered that the information the expert would provide was already known by jurors.  The defense provided the nature of the evidence it sought to introduce.

He would testify concerning studies that support various principles proposed by psychologists in the field of eyewitness recognition – exposure time (the amount of time available for viewing a perpetrator affects the witness’s ability to identify the perpetrator); cross-racial and cross-ethnic inaccuracy (non-Hispanic Caucasian eyewitnesses are generally less accurate in identifying Hispanic people than in identifying other non-Hispanic Caucasians); weapon focus (a victim’s focus on the weapon used in an assault can affect ability to observe and remember the attacker); lineup fairness (similarity of fillers to the suspect increases identification accuracy); lineup instructions (police instructions indicating that the police believe the perpetrator to be in the lineup increase the likelihood of false identification); forgetting curve (the rate of memory loss for an event is greatest right after the event and then levels off over time); post event information (eyewitness testimony about an event often reflects not only what the witness actually saw but also information the witness obtained later); wording of questions (eyewitness testimony about an event can be affected by how questions put to the witness during investigation are worded); unconscious transference (eyewitnesses sometimes identify as the culprit an individual familiar to them from other situations or contexts); simultaneous versus sequential lineups (witnesses are more likely to make mistakes when they view simultaneous lineups than when they view sequential lineups); eyewitness confidence issues (an eyewitness’s confidence level is not a good predictor of eyewitness accuracy, but eyewitness confidence is the major determinant in whether an identification is believed by jurors), and confidence malleability (eyewitnesses’ confidence levels can be influenced by factors unrelated to identification accuracy).

A very thorough list which, when the case was sent to a different judge for trial, was summarily rejected.  The Court of Appeals held otherwise.  First, it restated the two-prong(?) rule of LeGrand:

In People v LeGrand (8 NY3d 449 [2007]), we set out standards governing the discretion of trial courts in regard to the admission of expert testimony on eyewitness identification. LeGrand established a two-stage inquiry for considering a motion to admit such testimony. The first stage is deciding whether the case “turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime” (LeGrand, 8 NY3d at 452). If the trial court finds itself with such a case, then it must proceed to the second stage, which involves the application of four factors.

The court must decide whether the proposed “testimony is (1)relevant to the witness’s identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror”

The court distinguished it’s holding in an interim decision, People v. Allen, where it held a second identification was sufficient to corroborate, and thus remove the ID from LeGrand, because the witness knew the defendant, thus providing adequate indicia of reliability.

In this case, however, multiple identifications that all suffered from the same reliability issues addressed by the first prong of the LeGrand test did not corroborate each other, thereby removing the taint of unreliability.  In other words, problematic identifications remain problematic, no matter whether it’s one or three.

While the decision isn’t quite firm, noting particular issues with the supporting identifications such as a witness’ assertion of “80% confidence,” when the identification is no less questionable when absolute confidence is expressed, it reflects one more step down the road in supporting the defense’s ability to challenge bad identifications.  We’re getting there. slowly but in the right direction.

Like a loaded gun in the hands of children, we let lawyers tap on keyboards.  In Virginia, the result is that legal bloggers will now be required to include disclaimers on their blogs, as your right to free speech and expression was left in the hands of Horace Hunter.

Hunter was charged with misconduct for violating professional rules of conduct requiring an advertising disclaimer that states that results depend upon factors unique to each case and that results in one case do not predict similar results in others.

The disclaimer is aimed at preventing potential clients from being misled, generating public mistrust of the justice system or client mistrust of their lawyers.

Hunter argued his blog consists of news and commentary and refused to post the disclaimer as a violation of his free-speech rights.

And Hunter crashed. And burned. And with him, so did you.  The core problem, and one that has fallen through the cracks in much of  the discussion about this sordid case, is that this wasn’t a blawg.  Hunter says otherwise, but Hunter is wrong.  And with his error, so goes all Virginia blawgers down the tubes. 

Horace Hunter wrote about himself and his victories.  He argues that he wanted to use his great wins to make points about the system:

Contrary to you contention, the blog is not entirely self-serving because we discuss a number issues relevant to the criminal justice system that have nothing to do with cases that I have worked on. The problem for me is that as a criminal defense attorney, many of the articles are critical of the government. [Shameless self-promotional garbage deleted] If I had to disclaim the article as an “advertisement”, it would cheapen it.

Note that I deleted a portion of Hunter’s comment that I found flagrantly self-aggrandizing and utterly unnecessary to the comment.  It just blew me away that he couldn’t even leave a comment that didn’t serve some self-promotional purpose. 

Does a disclaimer “cheapen” his discussion of issues critical to the government?  Do hip boots cheapen streetwalkers in hot pants?

Hunter conceded on cross-examination that one purpose of the blog was marketing and that he had not sought the consent of his clients before posting information about the cases — cases he had won, not lost.

One purpose?  Well, that may be accurate, and I won’t claim that Horace Hunter had no other purpose to writing about his great victories other than marketing.  There’s no reason why, in the course of marketing oneself, you can’t throw in some slams against the government, particularly given the nature of the beast.  But let’s not play dumb.  This was marketing first, and whatever collateral benefit might have accrued by way of legal commentary, it wasn’t going to get in the way of marketing.

For a very long time now, I’ve railed against lawyers using the device called a blog as a affirmative marketing weapon.  This isn’t to say that a legitimate blawg can’t have collateral marketing benefits, by demonstrating knowledge about an area of law, but that it’s core purpose isn’t marketing.  It’s time to make a hard distinction: If you write for marketing, then where you write isn’t a blog.  It’s an advertisement. Give it some other name to end this confusion, because while the Virginia bar wrote about blogs, that’s not what they were talking about.

And to add insult to injury, Hunter got slam dunked on a separate issue, that writing about his own cases, his own clients, without their consent violated confidentiality.

[Assistant bar counsel Renu] Brennan presented evidence that at least two people represented by Hunter said they did not want their cases posted on his blog after learning they were there.

Of course, how can Hunter pump his victories without writing about the people who trusted him with their confidences, the protection of their lives and reputations. Contrary to the advice for profit of legal marketers everywhere, whose vision of clients is fodder for the legal marketing machine, our clients do not exist to be used for our own benefit. 

In assessing this decision, Ken Lammers at  CrimLaw writes:

When I became a lawyer I don’t recall being told that I lost my 1st Amendment right to freedom of speech. However, it appears that the Virginia Bar has decided that all lawyers in Virginia have forfeited that right when it comes to blogging about matters that are already a matter of public record.

I remember it quite clearly, when it came to taking the worst thing that ever happened in a client’s life and using it for self-promotion.  Let’s address a false assumption before going farther, that when a lawyer writes about his client, about a case, it’s mere public record.  We are lawyers. We speak for the client. Our words are no different than those uttered by the client himself.  Our impressions, biases, joy and anger are attributable to the client.  For the purposes of the outside world, we are our clients.  This means something.

But this decision isn’t about losing rights. It’s about protecting client confidences and trust.  Sorry, lawyers, but that trumps our right to market ourselves.  Commercial speech doesn’t require strict scrutiny and a compelling state interest, but our duty to clients requires us to keep our stories to ourselves, even if we think we can make a buck off them.

When we write about our clients, we reveal their perspective whether we want to or not.  This may well be our purpose, as we advocate for them and seek to use our voice to further our clients’ goals, and that’s what we, as lawyers, are expected to do. 

But that’s an entirely different use than taking the worst time of our clients’ life and using it to promote ourselves.  We have no right, none, to use our clients for our own advantage, and doing so is an inherent breach of confidence and, frankly, a disgrace.  It is a fundamental violation of trust. It should not happen.

I realize that many, particularly newer lawyers who read the stuff written on the internet, enjoy the inside story of a lawyer talking about his cases.  It’s titillating.  It’s cool, It’s fascinating.  And it fundamentally wrong.  Those lawyers who do it are wrong, and those lawyers who enjoy it are wrong.  There is nothing about a client’s life that is ours to use for our own advantage.

For years, I’ve railed about how marketing is going to be the death of thought, of commentary, of meaningful scrutiny.  The legal marketers hate me for it, as I do nothing to further their business.  For years, I’ve railed against the abuse of client confidences and trust for the benefit of lawyers.  Marketing lawyers hate me for it, as I do nothing to further their business. 

And this is why Horace Hunter lost, and why real blawgers will suffer, will lose their honestly-possessed First Amendment rights, as a consequence.  Are you happy now?