It’s been a conundrum for a long time, the situation of a woman in a domestic violence prosecution.  The problem is well known: Allegation of harm, whether being struck once or routinely beaten, resulting in the arrest and prosecution of (almost always) the man in the relationship. 

After the man is arrested, the woman’s position shifts.  She no longer wants to cooperate. She no longer wants him prosecuted.  She claims she made it up. She claims it was a mistake. She claims she wants it over, the case dropped and the man back.

In some instances, it’s accurate to say that the allegations were used as means of getting back at the man, to have police forcibly remove him from the home as a way of lashing out.  In most instances, however, it’s submission to threats, fear, overbearing will or some other unsavory purpose that prevents a crime from being prosecuted.  There’s nothing like a few broken bones or a black eye and missing teeth to back up the story that it was all a big mistake.

Having been on both sides of this situation, and doing what had to be done to support the outcome my client desired, the dilemma is real and certain.  What do do about it is less clear.

The Cuyahoga County District Attorney is seeking the Ohio Supreme Court’s approval of a means of compelling the victims of domestic violence to testify.  Via the Columbus Dispatch :

The Cuyahoga County prosecutor’s office wants the high court to instruct judges to consider calling the accusers to the stand in domestic-violence cases. That would give prosecutors a chance to cross-examine them on statements made before they refused to testify.

“Without that procedure, there’s very little the prosecutor can do,” said Matthew Meyer, assistant prosecutor for the county.

The case involves Melissa Mathis, who alleged that she was beaten by her boyfriend numerous times, eventually landing her in the hospital.  As trial approached, she recanted.  It was all made up, she said.

The prosecutor asked the judge to call Mathis as a “court’s witness” so that she could be cross-examined on her earlier statements. The judge denied the motion, saying there was no proof that she recanted her story because her boyfriend had threatened her. The 8th District Court of Appeals upheld the judge’s ruling.

Meyer said prosecutors once had some latitude to introduce other evidence if alleged victims refused to testify, but now it is “nearly impossible” to win those cases in the aftermath of two U.S. Supreme Court decisions involving a defendant’s right to confront his accuser.

The problem lies in the confluence of confrontation and the inability of a party to impeach its own witness.  The prosecution has Mathis’ original statement, but without her on the stand testifying to the truthfulness of that statement, it’s worthless.  It can’t be used.

On the other hand, the prosecution is constrained by direct examination not to lead its witness, thus asking the open ended question of what happened.  Mathis’ anticipated answer will be, “nothing,” and that’s not going to help them any.  The next step, to impeach her with the prior inconsistent statement, isn’t permitted.  That’s what the prosecution hopes to do.

If more Ohio judges agreed with prosecutors’ requests to call the victims themselves, they could find out the truth and put domestic abusers behind bars, Meyer said. He is hoping the Ohio Supreme Court sends that message to judges who are unaccustomed or openly hostile to the rule allowing them to call their own witnesses.

This argument is somewhat disingenuous, as it presumes the truth to be what the prosecution wants it to be.  That may very well be the case. Or not. The problem is whether the original statement is true or the recantation is true. Or somewhere in between.

Assistant Cuyahoga County Public Defender John Martin warned against assuming that an alleged victim told the truth at first and then lied later. It could be the other way around, he said. “ This court should not assume, as has the state, that she’s necessarily lying,” he said.

Whenever one side tries to tweak the rules in its favor, to permit an “exception” to evidentiary and confrontation rules designed to control the introduction of unreliable evidence because of transitory politically correct notions, the resulting unintended consequences tend to be bad.  Material evidence ends up precluded, while unimpeachable yet unreliable evidence ends up admitted.  Innocent people get convicted.  As do guilty people who otherwise wouldn’t.

Ultimately, the decision should rely on the fundamental premises underlying the criminal justice system, that it’s better that “X number” of guilty defendants go free than innocent defendants are convicted.  Of course, Blackstone is long gone, and there are a great many Americans who no longer feel too disturbed at the idea that we lock away a few innocents to put a bunch of guilty defendants in prison.

H/T Billy

I was never a fan of Apple. Nothing about it struck me as intuitive, and in fact I often found their contraptions difficult to work.  They looked cool, but that wasn’t enough of a reason to buy one.  And I didn’t. And yet, the impact of Apple’s devices on the computer age was undeniable and monumental.  What we have today was molded largely by one man’s vision and tenacity.

Perhaps no one had as much to do with the state of our world as Steve Jobs.  No president. No terrorist. No general. No saint.  One visionary. 

Steven Paul Jobs (1955-2011)

The United States Supreme Court heard oral argument yesterday in Maples v. Thomas, a case of shocking legal malpractice, incompetence, failure and carelessness.  Some things surprise. Some things don’t.

Via the New York Times :

When an Alabama court sent two copies of a ruling in Mr. Maples’s case to the New York offices of the law firm, Sullivan & Cromwell, its mailroom sent them back unopened and marked “Return to Sender.” A court clerk in Alabama filed the returned envelopes and did nothing more.

Mr. Maples’s deadline to appeal the ruling came and went, and so far every court to hear his case has said, in effect, tough luck.

Cory Maples was sentenced to death.

The ruling came in response to a filing by two lawyers from Sullivan & Cromwell, both associates, who argued that Mr. Maples’s trial lawyers had been ineffective. But the associates had left the firm by the time the state court ruled, and neither they nor the firm had informed the court or, seemingly, the firm’s own mailroom.

That can happen, you know, because they had other things on their mind besides the life of Cory Maples. The argument before the Supremes was that Sullivan & Cromwell abandoned its client, leaving him effectively unrepresented after he thought he hit the jackpot by capturing the interest of such a big time, high powered law firm.  Some jackpot, huh?

But the reception at SCOTUS was curious.  Justice Alito, who never met a criminal defendant who didn’t touch his cold, hard heart, in a creepy way, went soft.

“Mr. Maples has lost his right to appeal through no fault of his own,” Justice Alito said, “through a series of very unusual and unfortunate circumstances.”

Apparently there is a line below which an execution shouldn’t happen.

Justice Alito, for instance, pressed John C. Neiman, Alabama’s solicitor general, about why the state had opposed Mr. Maples’s efforts to have the deadline waived instead of addressing his claims on the merits.

“Why push this technical argument?” Justice Alito asked.

Mr. Neiman did not give a direct answer.

The inner-prosecutor still believed that the answer to such clearly stupid mistakes was to exercise the discretion to undo the damage.  Noblesse oblige, and get this ugly mess off our table.  Let Cory Maples have his appeals, as should any person sentenced to death, and then execute him.

But Justice Antonin Scalia took the principled approach of adhering to the glory of procedure.

“Once you are in court and you have a lawyer, it’s up to your lawyer to follow what goes on in the court,” Scalia said. “That’s the assumption of the federal rules. And it seems to me a perfectly reasonable assumption. And I’m not about to hold that they are unconstitutional simply because an extraordinary requirement of notice . . . has gone awry.”

The notice box on the list was checked.  Nothing more to do here.  As Nino has made clear before, there’s no constitutional prohibition against executing an innocent person, as long as he’s been given all the due process he can afford.  Stercus accidit.

As if the handling at S&C wasn’t ugly enough, the exercise of prosecutorial discretion, though not quite what Justice Alito would have preferred, arose during argument.

When the deadline for appeals had passed, an Alabama prosecutor wrote directly to Mr. Maples in prison to tell him so, Mr. Garre said, “which would have been unethical if the state had known or believed that he was represented by counsel.”

Chief Justice John G. Roberts Jr. seemed to find that letter both significant and offensive.

“Why did he do it?” Chief Justice Roberts asked. “Just gloating that the fellow had lost? What was the point of it? He must have thought there was a problem, right?”

A problem?  That the lawyers for a man sentenced to death had neglected to file notice of appeal on time.  Yeah, that’s a problem.  It’s hard to put one over on a justice of the Supreme Court of the United States.

The tenor of argument certainly suggests that the Court isn’t about to let Cory Maples be put to death because a law firm, some lawyer, some clerks and a court system, dropped the ball.  That this is even a question shocked the conscience.

But Justice Scalia’s point, that it remains constitutional to execute innocent people as long as some clerk sent the letter, is the bottom line.  You would think that nobody wants an innocent person put to death.  You would think.

A debate has broken out among the aficionados of cutting edge law office technology.  Naturally, no one told me, though by mere happenstance, I found out via Carolyn Elefant’s terrific and bold post at My Shingle.

Currently, there’s a cross-blog debate raging over the sustainability of the virtual law practice, with Jay Fleishman, Susan Cartier Liebel, Richard Granat and David Bilinsky all weighing in. Take a look at all of the posts to see the wide array of opinions on virtual legal services.

As for me, I’ve always had reservations about the viability of a purely unbundled, forms-based virtual law practice as a stand-alone business model (as opposed to a component of full service firm) primarily because I can’t make the numbers work. When a lawyer’s business portfolio consists of one-off, low cost matters at $300 or $500 a pop, then the only way to make real money is on volume.  And building a  volume practice, whether in the brick-and-mortar world or online requires a serious time or financial investment in marketing – either through paid ads, or persistent blogging, social media use and self-promotion.

There’s no shame in providing competent legal services inexpensively to those in need. There plenty of shame in walking the Boulevard in hot pants to attract your potential clientele, and even more shame in doing such volume that you can’t provide competent, no less excellent, representation.  That’s right, even high volume lawyers have to be lawyers. I know, it sucks.  Tough nuggies.

The virtual law office concept plays into the hands of what many lawyers desperately want and need, less because of any desire to help moderate income folks have access to the law than to accommodate the work/life desires of the lawyer.  How else can you justify sitting at your kitchen table in Phoenix while charging a client in Des Moines?  With the television on cartoon network.

This isn’t to say that all lawyers who advocate for virtual law practice, which seems to invariably come hand in hand with the dreaded unbundled services, are only concerned with how it benefits their life-style, but those, like Stephanie Kimbro, who have led the charge put in a whole lot of effort to keep the concept on the up and up.  Others can’t be bothered with Kimbro’s attention to detail, concern with ethics and integrity.

One might expect this debate to be a bit, oh, one-sided given that the players (at least until Carolyn joined in) all have a horse in the race.  Not so.  Much to my surprise, Jay Fleischman, the Brooklyn wildman, calls it out.  He has an office. He has staff.  And when he can, he works from home, where technology allows him to do and to be the same lawyer as he is in the office.  Except when he doesn’t need to sit with clients, he’s not in the office.

When you look at what I’ve got going, it’s not a virtual law firm.

According to the ABA, the virtual lawyer has “found dramatic new ways to communicate and collaborate with clients and other lawyers, produce documents, settle disputes, interact with courts, and manage legal knowledge. ELawyering encompasses all the ways in which lawyers can do their work using the Web and associated technologies.”

That’s not me.  I use technology as a tool, much as attorneys before me used fax machines, copies, and typewriters.  But it’s just that – a toolkit.

The ABA Elawyering Task Force tells us that, “[t]o be successful in the coming era, lawyers will need to know how to practice over the Web, manage client relationships in cyberspace, and ethically offer “unbundled” services.”

Bullshit.

Me too.  Jay’s point is that “people hire people, not machines.”  Lawyers aren’t fungible. Neither are clients.  The “law as a commodity” crowd will disagree with me, informing me that much law is indeed easy and fungible, and the internet form-sellers, the fill-in-the-blanks solutions, are the future. 

Now that Legal Zoom has thrown in a lawyer consult for $10 extra, the tiny gap between “any idiot can do it” and there’s a hundred ways to screw up a will that people don’t know about may vanish.  Unless the advice is as pro forma as the form, in which case there will be thousands of really unhappy heirs in a few years.

As criminal defense lawyers know, there’s nothing that will take the place of looking into the eyes of a client to know what’s going on below the surface.  No email will serve as substitute for our understanding of what our client needs, how one choice will impact his toddler while another will lead us to adopt a strategy that will put him on the next plane to Bolivia. Or SuperMax.  Or home.

Carolyn raises other reasons why those who confuse technology as the soul of law rather than a tool of law are wrong, confidentiality and accountability.  To the extent that we’re talking about the automation of law that so many of our futurist DIY proponents take for granted, with glossy adjectives warning of certain death without Elawyering, these concerns are missing from their vocabulary. 

Those who, like me, continue to warn that the adoration of technology, the uncritical embrace of every new “concept” in the practice of law, will at best produce a profession that aspires to mediocrity, and at worst leave a public denied competent legal help, are tossed off as Luddites, raging against the machine.

Bullshit.

I love technology. Well, not fax machines.  And I hated wet paper copiers in the early 80s, but otherwise, I love tech. It’s made my practice significantly more effective in many ways.  It’s had issues, like the 47 page rider attached to every real estate contract where a single page used to suffice, or the old form motion where the lawyer changed the names without bothering to notice that a bunch of facts were different. 

But these aren’t problems with technology, but the lawyers who use it.  Technology doesn’t rule our representation, but provides a means to enhance it.  We still have complete control over the delete button, as well as the button that makes the flashing light on our telephones go solid. 

We are responsible for the benefit or damage technology can do.  The people we are responsible to are called clients, and clients are living breathing human beings who, to some greater or lesser extent, have their own issues, questions, problems and needs.  There is no lawyer who should claim to represent a client when he’s never looked into his eyes.  At the end of the day, we represent people. No machine changes that.

For some of us, the execution of Troy Davis would have been a matter of deep concern and attention no matter what.  But that’s because the death penalty and criminal justice system are things we focus on.  Most people don’t.  It’s not their fault, as they have bills to pay and mouths to feed, and their problems are more pressing than others.

It came onto the radar of a significant group of people who would otherwise have been preoccupied because of the emergence of Rick Perry as the front-runner in the Republican presidential race.  Given Perry’s position, that he never met an execution he didn’t like, the mainstream media made Troy Davis the front page news it should have been. 

Now that Chris Christie has begged off the race, again, Perry is likely to remain on the media’s radar for a while longer.  Had Christie run, there wouldn’t have been another front page word about the death penalty; it’s not Chris’ exposure.  This means the death penalty will be front page news instead of being buried on page 27 below the fold. 

At PrawfsBlawg, Maryland lawprof Lee Kovarsky raises what he calls a “cynical” question:

Is the recent spike in public attention to the death penalty a fleeting feature of Republican Primary coverage, or does it signal a more durable interest in capital process and outcomes.

So, back to my question. In light of these two critiques – featured prominently alongside Perry’s bruising ascent through the primary field – is the recent spike in focus on the death penalty durable? Will any lasting coalition for legislative change develop? Or is the interest a byproduct of our cable-tv fascination with jarring political personalities? I don’t feel optimistic. The first calls on Milton’s case from the national media were from well-intentioned reporters seeking to situate the execution in a broader narrative about Perry.  And media coverage of the death penalty generally has sputtered while Perry’s star fades.

After Tom Goldstein announced the “new, improved,” and coincidentally, “exclusively sponsored,” SCOTUSBlog, I pondered whether this would change it, make it more, oh, business-like.  It didn’t take long to get an answer.

From yesterday’s email:

Hi Scott,

I’m writing to you from SCOTUSblog in hopes that you may consider helping us out;  we have just launched a new “SCOTUSblog Community” feature on the blog that will be home to discussion of various Court-related and law-related topics. Tomorrow’s featured topic is “legal blogging.”  Discussion threads will cover everything from the role of legal blogs generally (i.e. the relationship between legal blogs and the academy, business etc.) to what legal blogs people like the best, to  SCOTUSblog specific topics (what features do you like/dislike about the new redesign).

My guess is that you’ve meditated on the general topic a bit, so I was wondering if you might like to give us a “seed comment” we can use to get the discussion going tomorrow.  You can either e-mail me a comment of 2 sentences to 2 paragraphs that I’ll post under your name, or, better yet, if you want to participate directly Tom’s “Guide” to the community is here: http://www.scotusblog.com/?p=128656&preview=true

Please let me know if you have any questions and thanks for your consideration,

Kali
Manager | SCOTUSblog

SCOTUSBlog has a manager?  Like a rock band?  Now I’m always happy to add my voice to a worthy cause, and what cause could be worthier than to be a “seed comment” to grow a new community.  After all, there’s nothing more organic than using a seed to grow a community, even if you have to ask for it, right?  But then, why did Kali ask me?

My pal Billy emailed me this morning with  an article about Crazy Joe Arpaio’s pet, Andy Thomas, noting that I probably wasn’t interested since I had never written anything about Crazy Joe or Maricopa County.  I responded that I had indeed written about the Maricopa situation, quite a few times in fact. 

I wasn’t interested in Billy’s article, but it did give rise to thinking about all the stuff that’s been done before, written about once, then again.  And how many people read what’s new, without the slightest clue of what came before.  We’re “judged” by this quite regularly, with readers telling blawgers what we write about, or ought to be writing about, as if we didn’t exist until the moment the particular reader happened upon our blawg.

That’s how it goes in the blawgosphere.

However, I stumbled across this old post by Mark Bennett the other day,

Sixteen Rules for Lawyers Who (Think They) Want to Market Online

I read it again, and remembered how good it was.  For those of you who missed it the first time, it’s band new to you. Read it now. 

Having written as much as I have, there are quite a few old posts around here that cover topics that continue to arise.  It gets boring for me, writing about the same stuff.  If you want to read about something, and I haven’t written about it today, you may want to take a look back.  Or not.  But don’t expect me to write about the same stuff again because you didn’t see it the first (or the first hundred) time.  If it doesn’t interest me, I won’t write about it. That’s the nature of this blawg.

At Popehat, Ken posts about  breast cancer survivor Lori Dorn’s story of humiliation at the hands of the TSA at New York’s JFK Airport.  Her post-surgical image presented as an anomaly, compelling the laying on of hands.  

I was again told that I could not retrieve the card and needed to submit to a physical exam in order to be cleared.  She then said, “And if we don’t clear you, you don’t fly” loud enough for other passengers to hear.  And they did.  And they stared at the bald woman being yelled at by a TSA Supervisor. 

This is, by far, not the first time we’ve heard that the TSA acts in an inhuman fashion to people with illnesses and disabilities. We’ve seen wanton treatment of people with urostomy and colostomy bags, the sick torment of the mentally disabled, and the demands that cancer survivors remove prosthetic breasts. Throughout, for the most part, the media remains the TSA’s compliant fluffers. So, though what happened to Lori Dorn is sick and infuriating, it is not new.

That Conrad Black wrote a book of his experiences should come as no surprise. Writing is one of the things he does, and his time in Cubicle 30, Unit B-1 at the Coleman Federal Correctional Complex in central Florida provided the perfect opportunity.

Jonathan Kay’s article in the  National Post about Black’s A Matter of Principle leaves little doubt that he was an angry man, absolute in his belief in his innocence and resolute in his intention of paying back all those he blamed for his circumstances. 

At other points in the book, his tone is decidedly less lofty — even downright nasty. Mr. Black’s iron-clad conviction in his own innocence has been the psychological armour that’s permitted him to carry on in public life, head held high. Yet there is an unfortunate flip side to this sense of complete moral self-assurance: Because he cannot fathom why any intelligent human being could honestly believe his actions to have been criminal (or even unethical), he attributes either stupidity or dishonesty to each critic. Even Mr. Black’s own lawyers get denounced as fools when they fail to embrace their client’s legal theories.

This is the common, maybe even proper, reaction of a man convicted who is certain of his innocence.  Dealing with the cognitive dissonance requires the mind to lay blame, and Black does exactly that.  His lawyers are an obligatory target.

One of his lawyers, Eddie Greenspan of Toronto, was unhappy with being the target of Black’s invective.  Rather than suffer in silence, he decided to speak out via the Globe and Mail.  The initial curiosity, why Black would choose a Canadian criminal defense lawyer to participate in an American trial, is explained.

Conrad Black and I were first-year classmates at Osgoode Hall Law School in 1965. I didn’t really know him at that time, but over the years we have met at different places. On one of those occasions, I stopped to say hello to him in a restaurant. We chatted and at one point he said to me, “You’d better leave, I don’t want people to think I need a criminal lawyer.” I didn’t realize it at the time, but he wasn’t joking.

Years later, Conrad got into the difficulties that ultimately resulted in his criminal trial in Chicago. Early on, he retained me as an adviser. I helped him find a U.S. criminal lawyer, the celebrated Brendan Sullivan, whom he hired. It was understood that if he was charged, Mr. Sullivan would be his lawyer. As that day approached, Mr. Sullivan told Conrad he needed $25-million in addition to the many millions he had already received. That was the first time in my life I ever regretted not being an American lawyer.

When Mr. Sullivan made his request, Conrad came to me and said, “I want you to be my lawyer in Chicago.” I’m Canadian; my practice is here. But Conrad pushed strenuously for me to take the matter on. 

Did  Brendan Sullivan’s retainer stop you dead in your tracks?  Me too.  No matter what the case, or who the defendant, that was a remarkably healthy fee.  Yet, in retrospect, it might have been a far more thoughtful amount than would appear at first blush.  He had come to know his client and the nature of the case.  Perhaps he understood just what would be demanded of him over the next few years, and decided he wasn’t going to sell his soul cheap.  Or maybe, having lived with his client for a while, he didn’t want the case that badly, and charged accordingly.

Greenspan found two excellent lawyers to replace Sullivan, Eddie Genson and Marc Martin, though in retrospect, Black described their experiences as unsavory.

Conrad wrote that he doubted Mr. Genson had ever represented a respectable client and then said of me: Respectable clients “were not his specialty.”

Conrad added that we have a misplaced reverence for the hoods and lowlifes he believes we represent. It is sad to observe this reckless lashing out at his lawyers and those charged with presumably less lofty offences than fraud. Eddie Genson and I have had the privilege over our careers to act for an enormous number of decent, honourable people, just as wrongly charged as Conrad. He has to know that these petty insults are beneath him.

Curiously, just as Black’s time in prison gave him an appreciation of the “lowlifes” with whom he took comfort, he fails to recognize that they are part of the mix of clients in need of a criminal defense.

Greenspan goes on to address Black’s play by play of his trial tactics.

Conrad’s flawed account of his own trial is a reminder of how seldom an accused person actually grasps what is going on in court. Most defendants in a criminal trial realize that they shouldn’t expect to understand the process. That is what hiring experienced criminal counsel is all about.

Black’s descriptions of Greenspan’s cross-examinations run the gamut of brilliance to hackery, hyperbolic on both extremes.

When it comes to Mr. Radler, this key witness was ultimately so completely erased by cross-examination, in Conrad’s description, as to become a non-issue. Mr. Radler, whom Conrad describes as the “rat” (to my water buffalo-cougar-crocodile hybrid), was dismantled to the point where, he writes, the cocksure prosecutors, earlier described as so much younger and more nimble than his own slow, past-it, lawyers, hung their heads like “chastened schoolchildren” and avoided meeting the jurors’ eyes.

Conrad wrote in his book, “Radler was smeared over the floor and walls.” Flattering as this is, I’m really not that violent.

He wrote elsewhere that I destroyed Marie-Josée Kravis of the Hollinger board, to the point of making her look contemptible. As for former Illinois governor Jim Thompson, also on the Hollinger board, testifying against Conrad, I apparently “tore him limb from limb” and “dragged him like an un-housetrained dog to the site of his many incontinences.”

Despite the violent imagery, Black blames Greenspan’s perceived “inadequacy” on his being diabetic.  Having a hard reason upon which to attach blame always makes rationalizing easier, though Greenspan was just as diabetic when he was a water buffalo as a cougar.

Greenspan raises some post conviction public-relations strategy, which is the aspect the most closely skirts revelation of confidential communications, where he felt that Black’s control impaired the defense.

At the time, I didn’t understand why Conrad Black didn’t want me to do what needed to be done: shape the climate in which the trial judge would do her sentencing. I think that, reading this book, I finally do. He writes that when I said to him the verdict amounted to a vindication, what I really meant was that it was a victory for me, personally. Of all that he has written, this is in some ways the saddest passage.

While there has been a great deal of attention paid to Black’s post-conviction proceedings, not the least of which is the Supreme Court’s rejection of vague and dreaded “honest services fraud” for conduct beyond bribes and kickbacks, the inside story of the trial is rarely something that outsiders get to see. 

What may surprise many outside the practice of criminal defense is that defendants rarely view anything beyond a complete acquittal of all charges as successful, and resent their lawyers for taking some pride in the achievement of a less than perfect verdict.  A separation of interests appears between lawyer and client, even if none exists in reality, because the defendant has only one interest, complete and total vindication, usually followed by an apology and perhaps a small block grant for the indignities suffered.  This isn’t a particularly realistic expectation.

By his book, Conrad Black shows us what it looked like from the defendant’s chair.  The most interesting thing is that it apparently looks the same when the defendant is filthy rich as dirt poor.  Either way, one constant is that the lawyer, regardless of relationship, fee paid or degree of success short, will invariably be in the line of fire.  Even if there’s a complete acquittal, since that’s due to the fact of innocence (often with a bit of a deity’s assistance) rather than a lawyer’s effort.

Not only is this a difficult job, but often a thankless one as well.  Eddie Greenspan shouldn’t be surprised.

Reactions to my  Newsday op-ed provide a fascinating opportunity to see what people think, or more properly, feel, outside the realm of the blawgosphere.  As much as we get some mind-numbingly dumb comments here, they are a giant leap ahead of what you get at newspaper websites or non-law blogs.  And since I have my hands on the wheel, i get to ding comments that are most likely to leave the reader stupider than before reading it.

Two primary failings appear in the discussions I’ve seen elsewhere.  First, they fail to demonstrate anything remotely resembling a firm grasp on the point.  Whether it’s the inability to use all the words in a sentence to understand its meaning, or just projection or assumption to read something completely apart from what appears in black and white.

Second, lay-people (and the occasional lawyer) just make stuff up.  They regale us with “the law” as they imagine it should exist, though only in their vivid imagination.  And then others run with these faux legal concepts, adding in their anecdotes to disprove the error of logical fallacies.  It’s great fun to read, though it suffers the malady of feeling a bit like your part of a misinformation campaign.  Of course, since it can’t be controlled or stopped, there’s little point in fretting over it.

What this reaction said to me is that we need a simpler, unsophisticated way to explain the law to people whose understanding is already so burdened by their mistaken assumptions that they will never be able to comprehend its complexities if we try to give it to them accurately. 

And then Eric Mayer, at his blawg, The Unwashed Advocate, did the dirty deed, providing a easy to understand 2-part system of criminal justice:

1. The Fair and Compassionate System.

Available to: Themselves, Family Members, and Close Acquaintances.

2. The System For Everyone We Don’t Know/Don’t Give a Crap About.

Available to: Everyone Else (especially people we don’t personally know, the poor, and those whose cases are covered by mass media).

I know! From the nuttiest to the meanest, it’s hard to not get the point here.  Among my perpetual themes as SJ is that nothing matters until it affects you.  Once it’s you or yours in the hot seat, everything becomes brutally real, and suddenly the injustice of it all becomes manifest.  We scream and cry, and can’t understand why everyone else doesn’t share in our outrage.  It doesn’t dawn on us that the reason is that it’s happening to us, not them.  It didn’t matter to us either until it was our butt on the line.

There is, of course, a corollary to all this, which stems from the fact that we have a connection to the situation, albeit from the other side.  The reason the SAT cheating scandal cause many otherwise empathetic people to boil over and froth at the mouth is that they’re children, who got wait-listed at Cornell and had to go to SUNY Oneonta feel as if they personally suffered from this cheating.  They are the victims.  And they are still angry about it.

It’s reminiscent of the controversy that arose when the Supreme Court decided  Board of Regents v. Bakke in 1978, the reverse discrimination case that got the nation’s blood boiling.  When it came to your li’l darling getting into college so he could “be, all that [he] could be,” not even a few hundred years of slavery could get in the way.  Fairness, like justice, depends largely on whether it’s your ox being gored. 

When I sat on the panel at the Asian American Bar Association of New York a few weeks ago, Vivia Chen at the Careerist, also on the panel, opined that one of the benefits coming from the blawgosphere was that the law was becoming more transparent, that people were learning more about the law and gaining a greater understanding.

I disagreed.  People are merely gaining confirmation of their biases, their ignorance reinforced by others of similar ignorance.  The make vague and off-point arguments, bolstered by unverified anecdotes of a dubious nature, reflecting their own exposed wounds.  In return, they receive the soothing support of equally ignorant people who agree with their irrational imaginary world of the law, or more accurately, the law as it should be in their eyes.  Not only are they no better off for having a blawgosphere, but they’re now absolutely positive that their ridiculous and irrational notions are correct.  The  Dunning-Kruger Effect applies in full force.

And yet, it remains our duty as lawyers to try to offer some rational ideas into the mucked up view of the criminal justice system.  And watch in silence as non-lawyers use them for whatever purposes they find most availing.  Still, we try.