Author Archives: SHG

An Educated Consumer

There are occasionally posts by law professors that reveal their hidden sturm und drang, the issues seldom discussed that annoy, if not anger them.  Deborah Borman raises one such problem at Prawfs :


Now and again when a student does not like a rule for class conduct or a particular assignment we hear the cry: “we paid for this class so we can [miss class, come in late, turn an assignment in late . . . fill in the blank].” The “law student as consumer” dictating the course construct is a phenomenon that has likely been discussed here before, but I wonder if anyone has noticed an increase in these “consumer complaints” in recent years.

Why yes.  It’s smeared across the blawgosphere.  And it doesn’t end with law school, as former law students express their own anger at various scamblogs.  Note that I hesitate to call them lawyers, as they are usually unemployed and not practicing, stunted in 3L and seething in the sense that they were induced by lies. 

The attitude sounds more like someone who bought a consumer appliance that didn’t perform as well as the cool television commercial said it would.  Their only responsibility was to plug it in and flip the switch.

This slackoisie grasp of education comes as no surprise.  These students are the products of a generation of crass consumerism, a society interested more in spending than creating, obsessed with the purchase of shiny toys to prove their self-worth.  The objects of desire, accordingly, are reduced to trinkets, things to be had for the mere purpose of having things.  Education has been objectified.

The attitude toward education as a cash-and-carry business deal explains much about the slackoisie.  This sense of entitlement is why they refuse to accept the proposition that the burden of achievement is theirs.  They paid, or at least assumed the debt, for law school, and expect to get the benefit of the bargain.  Where’s the pot of gold at the other end?  Why are they also required to work hard, study hard, suffer the indignities of learning, when the tuition bill is paid in full? 

But then, consider the academic response:


During my most recent consumer complaint experience, I was hosting a guest speaker who responded by telling the student that when she was in law school, one of her professors demanded that all students be in their seats by the start of class or they were locked out of the classroom.

This concept produced the response that the late student in that scenario was entitled to a refund for tuition. The guest and I indicated that when a consumer is late for other professional or paid services, such as a doctor’s appointment or a play, the consumer/patient/client/patron must also follow rules and often must still pay for that missed appointment or miss or enter a show during the second act.

Rather than tell the whiner that an education is both a privilege and opportunity for the student to prove himself worthy of the chance to fill a seat that could otherwise go to someone who would appreciate it, the reaction validates their consumerist belief that it’s nothing more than a purchase and sale of a commodity. 

By comparing education to other goods and services, and putting it in the context of any other buying experience, Borman has similarly misapprehended what she, as professor, is doing there.  She has reduced her role to education huckster, attracting students buyers with the half-price sales and two-fers, with the minor provisos of showing up on time.

Education is not at all the same as a attending a play, a license to watch with a condition that you not disturb other patrons who similarly paid for a license to watch.  It’s nothing like a doctor’s appointment, where failure to show on time means you miss the appointment, but since we don’t pay for until the end, there’s no financial cost.  Even so, that’s a cash-and-carry service; we go and pay for what we get.  That’s not education at all.

There is nothing about law school that fits within the consumerist vision.  You do not have the right to walk into Harvard Law School, lay your money on the table and demand a seat.  You do not get to unbundle their services, buying only those pieces you want and electing, as consumers are entitled to do, not to purchase the parts that don’t interest you.  You don’t own the chair of your choice in the classroom.

I’ve railed about the coddling students receive in law schools today, where Socratic method is eschewed because it harms the little teacups self-esteem to be held up in front of the class as fools and idiots, because they will surely learn that losing is a big part of the practice of law.  The same coddling emerges in the complaint department scenario, where student’s expectations of concierge service from their professors is met with apologies and excuses rather than a smack of reality in the face.

I can still remember my college orientation, when the dean spoke to the incoming class and told us to look to the left, look to the right.  “One of you will not be graduating.”  Who that would be was up to us, and we were damn lucking to be given the opportunity to rise or fall.  Our professors tolerated no insolence, and we learned quickly that we didn’t want to be on the wrong side of scholarly ire.  We swiftly appreciated sitting in buildings bound in ivy rather than bunkers in a jungle, as did many of our older brothers.

A professional education is a privilege and opportunity, which students can either exploit or ignore.  If the former, they will emerge capable of joining the ranks of professionals, assuming they have the chops to make it through.  If the latter, hand them a dime.  Why any lawprof or administrator would tolerate complaints is beyond shocking: it’s counterproductive. 

Part of this education is learning their relative place in the scheme of a profession.  Part of this education is coming to the realization that they aren’t the center of the universe.  No law school should bear the motto, “ Nunc pretium tempor sollicitudin semper est recta.”

An Interested Witness

In yet another decision demonstrating that a judge whose career was spent prosecuting can show the fortitude to suppress, Brooklyn Justice Mark Dwyer rejected the testimony of NYC Police Officer Robert McNamara, who falsely claimed consent to justify a search of an apartment to locate a weapon.

In People v. Hazzard, police had probable cause to arrest the defendant outside his home for possession of a weapon, but couldn’t be bothered to get a search warrant for the apartment.  Instead, they went the old knock and talk route.

The door was opened by defendant’s mother, Lola Hazzard, who stated that she was the tenant of Apartment 3A and that defendant was not present. Officer McNamara recalled that Ms. Hazzard was Hispanic, dark-haired, and about 52 or 53 years old. She walked unaided.

Ms. Hazzard invited the three officers inside and walked them into the living room.

There the officers asked to search the apartment and displayed a consent form. They advised Ms. Hazzard that she was free to refuse, but she signed the form. The document, which was received in evidence, shows an apparently shaky signature in the name of Lola Hazzard. The signature appears underneath, not on, the line on the form intended as the signature line, and on top of handwriting specifying the date and apartment number.


Nothing special here, right?  Notably, Lola Hazzard had died between the time of the search and the suppression hearing.  But defense counsel Jacob Lipsky of Brooklyn Defenders, fought back.  First came the defendant’s “paramour” (Justice Dwyer’s word, not mine):



Madeline Rivera testified for defendant. She stated that in February 2010 Ms. Hazzard was 75 years old, frail, and bed-bound. As of February 2010 Ms. Hazzard had not been able to walk unassisted for a year or more. By February 2010 Ms. Hazzard also was often unable to understand what she was told or to respond to it. At times she might be lucid, but at other times she was incoherent.


Ms. Hazzard was dependent for her care primarily on two healthcare providers who would attend to her 12 hours each day. With assistance from Ms. Rivera and family members they fed her, dressed her, gave her the numerous types of medication prescribed for her, and washed her in her bed. Ms. Hazzard was incontinent, and wore diapers. With assistance she could be moved from her mechanical hospital bed to a chair or to a wheelchair placed close to the bed, in particular when she was to be transported by ambulette for kidney dialysis. Ms. Hazzard died on October 31, 2010.


Rivera disputed the officer’s testimony about the search, that they marched in without obtaining consent, and obtained Lola Hazzard’s signature by telling her to sign a paper to prevent trouble with “the housing.”  As to Ms. Hazzard’s condition, the defense called Betty Jenkins, a health care aide, and offered hospital records to corroborate Rivera’s testimony.

In light of the very particular testimony of P.O. McNamara, Justice Dwyer found it impossible to square with the defense evidence.


But upon examination, that theory unravels quickly. Officer McNamara was quite particular in describing his conversation with the woman who opened the apartment door. She identified herself as the tenant of the apartment and as defendant’s mother; Ms. Rivera would not have done so. And the officer was quite particular as well about the signing of the consent form; it was signed in the living room, after Ms. Hazzard was joined by Ms. Rivera. And, of course, the name placed on the form was Lola Hazzard. There is no way to square the officer’s account with the fact that Ms. Hazzard was confined to her bed.

While the decision fails to use language like “pathological liar,” which might well have been considered appropriately temperate under these conditions, the court nonetheless granted suppression.  And yet, the thorough decision raises an issue that makes this case cautionary.


Had only Officer McNamara and Madeline Rivera testified, this court would have concluded that Ms. Hazzard and Ms. Rivera consented to the search of Apartment 3A. The officer’s testimony was straightforward and facially credible. Ms. Rivera’s testimony was also facially credible, but she was an interested witness. However, Ms. Rivera’s testimony was corroborated by Ms. Jenkins’ apparently disinterested testimony and, as well, by the hospital records.


In other words, had the defense been unable to provide corroboration for the “interested witness” testimony of Madeline Rivera, the liar would have prevailed.  The rationale is that “main squeeze” (my word, not Justice Dwyer’s) Rivera was an interested witness.  P.O. McNamara’s testimony, however, was “straightforward and credible.”  The only problem was that it was a complete lie, but a lie from a “disinterested” police officer.

Most of the time, the defense is lucky to have any breathing witness, interested or otherwise.  This makes it a field day for the cops, who are trained to appear credible and can say anything they want without fear of contradiction.  Not much of an incentive to tell the truth.

The reality is that a police officer is every bit as interested a witness as a defendant, or someone who cares about a defendant’s disposition.  The cop is trying to make his bust on the stand, knowing full well that the short cuts taken, even the outright wrong committed, disappear in the legal ether if he tells the right story on the stand. 

He has a motive to lie, to cover his conduct and make the bust stick.  Let’s get real and stop pretending that cops don’t care whether the defendant is convicted.  They made the arrest and now they own it. They need to make sure a conviction follows.

While everything worked out in this case, due to the efforts of counsel in putting together corroborating evidence, the fact that the liar would have prevailed otherwise can’t be ignored.  And can’t be shrugged off.  Yes, Rivera was an interested witness.  So was McNamara.  Let’s not pretend otherwise.






Do It For The Children: Proportionality Edition

My op-ed on the Great Neck North SAT cheating scandal appears at Newsday, with access behind the dreaded paywall. 

The TL;dr version: Yes, cheating by having a ringer take the SAT’s is a verybad thing, no matter how bad the pressure to achieve.   Life is full of pressures. Dishonesty isn’t the answer. Anything sound familiar yet?

But no, prosecution, nor the potential for a jail sentence, isn’t the answer.  That there needs to be significant consequences is clear, but we still have to be guided by proportionality.  Most importantly, these are teens, children, and despite our anger at what they’ve done, we do not impose needlessly harsh punishment on children that will have a permanent and devastating impact on their lives.


Greenfield: Jail not right for SAT cheating


Hopefully, we can demonstrate our ability to be the adults in addressing this problem, to send not merely a message, but the right message, to our children. 

Used By Your Evil Client? Tough Nuggies

In a decision out of the Southern District of New York, the heartland of wiretaps, Judge Robert Patterson refused to suppress the recording of defendant Michael Lamond.  So what, you say?  Lamond was a lawyer, and the recordings were of his communications with his client, now co-defendant, Aron Chervin.

Without necessarily holding that the communications were privileged, Judge Patterson held that the burden was on the government to show that the crime-fraud exception applied:


The Second Circuit has held that the party seeking to invoke the crime-fraud exception must prove there is a “factual basis for a showing of probable cause to believe that a fraud or crime has been committed and that the communications in question were in furtherance of the fraud or crime.”
Nothing particularly controversial about crime-fraud exception, since lawyers are no more entitled to engage in crime with their clients than anyone else.  Nor in placing of the burden on the government, rejecting the government’s argument that it was the defendant’s burden to prove that his communications weren’t made for the purpose of committing a crime.  But what follows raises some concerns:


Defendant Lamond argues that he is “clearly providing legitimate legal services to his client by consulting with him concerning financing, no-fault collections, and arbitrations.” However, the attorney-client privilege will not attach to any communications in furtherance of a crime or fraud regardless of the attorney’s lack of knowledge that he is being consulted in furtherance of that crime or fraud.

Therefore, Lamond’s knowledge of whether a fraudulent scheme was afoot is not relevant to the application of the crime-fraud exception to Lamond’s interactions with Aron Chervin.
In other words, Lamond may have had no clue whatsoever that he was engaged in communications that served any criminal or fraudulent purpose under the sun and, well, who cares.  If the client, Chervin, had a criminal purpose behind his questions, and even if the questions were otherwise completely neutral, Lamond is out of luck.

Judge Patterson spells it out in greater detail at the end of his decision:

Lamond claims that the conversations he is seeking to suppress took place in his capacity as legal counsel to Mr. Chervin and involved consultations regarding financing, no-fault insurance collections and arbitration matters. Specifically, Mr. Lamond states that the conversations are “on their face conversations between a lawyer and his client regarding legal advice in connection with their routine ongoing business transactions relating to no-fault insurance claims.” There is nothing in the seized conversations, according to Mr. Lamond, that gives any “indication that they are related to the commission of a fraudulent act or any other offense.” Id. The conversations do show, however, that the Government has probable cause to believe that Aron Chervin intentionally and knowingly utilized the services of Michael Lamond to further Chervin’s illegal scheme to obtain funds by submitting fraudulent medical bills, traveling in interstate commerce, to no-fault insurance carriers.


V. Conclusion


There is probable cause to believe that Aron Chervin was knowingly involved in a complex mail or wire fraud scheme to defraud no-fault insurance providers. This suppression motion need not decide whether Defendant Lamond had actual knowledge of the fraudulent activity during his conversations with Defendant Aron Chervin. The crime-fraud exception to the attorney-client privilege applies to this set of facts.


This decision suggests that lawyers have a problem and, given the nature of our clientele, criminal defense lawyers have a bigger problem than others.  That we may neither know, nor have reason to know, what motives are behind a question from someone seeking our advice and counsel, our performance of our function in a facially lawful and proper manner could land us square in the middle of our clients Title III investigation, and perhaps sitting next to him at trial as co-defendant rather than lawyer.

This makes perfect sense legally, as the decision is limited to suppression of the wiretapped conversations, and Lamond’s indictment, assuming that his advice and counsel were indeed as legitimate as claimed and provided neither knowledge, nor reason to believe, that he was aiding in the commission of a crime.

Where it becomes a problem is that the conversations, lawfully wiretapped per the crime-fraud exception, are now subject to scrutiny through the eyes of the government.  You know, that would be the same government whose understanding of the recorded conversation between target husband and wife reads:


Target:  Do you want me to stop on the way home and get some milk?
Spouse: That would be great. Could get a quart of whole milk and a quart of skim?
Target:  Will do.

Agent:  Based upon my training and experience, this was a conversation about the sale of large quantities of cocaine.

Certainly, clients have questions from time to time that would appear to relate to how to run their business more efficiently and effectively, including the elimination of unseemly disruptions in the supply line.  Yeah, these were never conversations that you were allowed to have, and it’s critical that lawyers not get sucked into an involvement in matters that clients might very much appreciate but are flagrantly criminal.  We are criminal defense lawyers, not criminals. We cannot do this.

But when the issue isn’t clear, or worse still, when the conversation is completely appropriate, yet for reasons wholly outside our knowledge and control, relate to a criminal transaction, we can very easily find ourselves in the middle of a firefight without the slightest clue what we did wrong.

And this is fine, since we need not have any clue about wrongdoing to become a proper target of a Title III wire.  I figured you would want to know.

A Sore Loser (Update)

Former hand surgeon Michael Brown was not a well-loved defendant around Houston, but then, few guys coke-tooting guys accused of assaulting their wives are embraced with much warmth.  No matter, since Dick DeGuerin  beat the charge and Brown was acquitted. 

But after the acquittal, as jurors met with the lawyers in the case and sought to satisfy their curiosity, things got hot.  In Op-Ed for the Houston Chron, Brian Wice, a member of the defense team, explains:



Late Tuesday morning, in the jury room off state District Judge Jim Wallace’s 15th-floor courtroom at the Harris County Criminal Justice Center, I found myself facing the 12 jurors who, a little less than an hour before, had acquitted Michael Brown, the high-profile CEO of the Brown Hand Centers, of assaulting his estranged wife, Rachel. The jurors had asked to speak with lead defense counsel Dick DeGuerin, co-counsel Catherine Baen and me, as well as the two prosecutors.

*  *  *


Apropos of nothing, the junior prosecutor who had handled almost all of the most important parts of the trial announced that he wanted the jury to know all about “the real Michael Brown.” In a matter of moments, and over DeGuerin’s objection, the prosecutor tainted the jury with the details surrounding Brown’s plea of no contest and his deferred adjudication for assaulting his third wife in 2003 that made this case a felony, not to mention a number of assertions disputed by the defense disparaging Brown’s character and reputation – the very evidence Judge Wallace had properly excluded from trial. But the prosecutor was not quite through. By repeating these reckless allegations to the battery of cameras, microphones and notepads outside the courtroom, the prosecutor took a backhanded slap at Judge Wallace for following the law and the jurors for following their oaths.


Apologies for the length of the quotes, but Wice is an appellate lawyer.  The gist of what they learned from the jurors was that they didn’t find Brown’s wife credible. 

Wice goes on to note that such conduct could violate Texas Disciplinary Rule 3.06, “which prohibits any lawyer from making any post-verdict comments to a juror ‘calculated merely to harass or embarrass the juror or to influence his actions in future jury service.’ “

Some junior Harris County prosecutor got a little too hot under the collar, hearing of the juror’s rejection of the prosecution, and just couldn’t muster the self-restraint not to smear the already-acquitted defendant?  Well, he was still hot as Wice’s commentary hit the streets.  Hot enough to leave this comment:


I am the “out of line” prosecutor. My name is Nathan Hennigan. Wice didn’t want to call me by name, but I feel a necessity to respond, as most don’t know who I am, due to his subterfuge, but I am proud to say,,. Brian Wice is an appellate attorney. He is a good appellate attorney, but he isn’t a trial attorney. That is because he is not a likable person in the least. He actually reminnds me of the weasels from “Who Framed Roger Rabbit.” Uncanny.

What happened in the jury room is as follows…Dick Deguerin went on a 5 minute rant on what a psycho the complainant was. I wanted just to answer questions, but, I felt it was my duty to explain the truth. The truth was Michael Brown beat Darlina with a bedpost while she was 7 months pregnant. The truth was he is probably the worst person I’ve ever dealt with, (and that includes an MS13 Gang member I locked up for life). I offer no apologies to Wice, DeGuerin, or anyone else. I am proud to stand up for the Harris County District Attorney’s Office and fight for what is right. Even if it isn’t easy.

I’ve broken the comment into two paragraphs to make it easier to digest, if not easier to read.  So Nathan felt is was [his] duty to “explain the truth?”  So Nathan thought Brown was the “worst person” he’s ever dealt with?  And he doesn’t like Wice, who reminds him of a cartoon weasel, which is clearly of sufficiently grave importance that Nathan feels constrained to point it out.  A bit more truth, no doubt.

Hennigan is correct, it’s not easy.  It’s not easy to lose a case that was universally seen as a slam dunk.  It’s not easy to lose a case against a man that was despised and despicable, the “worst person” he ever dealt with.  It’s not easy to lose when this “worst person” has a weasel by his side.  But Nathan Hennigan, you lost. You lost.

This paragraph could be an homage to grace in defeat, but nobody needs to read something so obvious.  It could also be a cautionary tale about anger and immaturity getting the better of a prosecutor, but the same is true.  Instead, I’m going straight to the heart of the matter: Nathan, whatever demons fill your baby head, you violated Disciplinary Rule 3.06. 

Not surprisingly, my personal knowledge of Texas disciplinary rules is somewhat inadequate to make such an assessment.  I therefore turn to someone more knowledgeable than me, and as luck would have it,  Mark Bennett wrote at some length about this particular rule.



Okay, listen up, Harris County prosecutors, because one of you is going to find that this is your ticket to a grievance. (Actually, it’s a marvel if none of you have been grieved for this already, but the defense bar is better educated about this issue, and less reluctant to file grievances against their adversaries for the most egregious ethical violations, every year.)


The things that the jury didn’t hear about in trial, they didn’t hear about for a reason. When you go into the jury room after a verdict, and you start telling the jury about those things, it’s likely to influence their actions in future jury service. You and I know that your intent is to poison the jury pool so that these jurors, when they are next called, are more inclined to convict.


It’s almost as if Bennett anticipated Nathan Hennigan’s emergence as the angry, graceless loser, whose outrageous lack of self-control compelled him to “explain the truth.”  That this happens to be Nathan’s truth, his graceless loser truth, is of little consequence.  Nathan Hennigan is of little consequence.  Having lost the big case, the slam-dunk win that no prosecutor could possibly lose, Nathan has already shown the world that as a lawyer, he sucks.  Having called Wice a weasel because, well, he has no control over his anger and impulsivity, he’s shown the world that as a person, he sucks.

But as a prosecutor, he has violated the disciplinary rules by poisoning a jury in violation of DR 3.06.


 I am proud to stand up for the Harris County District Attorney’s Office and fight for what is right.

Yes, the zealot’s call to arms, to “fight for what is right.”  And what is right in the twisted mind of Nathan Hennigan is violate the disciplinary rules and his oath of office because little Nathan is all angry.  A prosecutor, however, doesn’t have the latitude to indulge his personal fantasies. He is a state actor, given power and authority by the state, whether he deserves it or not.  Having abused that power by poisoning a jury, there’s no refuge by whining that he’ll “fight for what is right.”

Harris County District Attorney (and former judge) Pat Lykos is a grown up.  Let’s see whether she gives her baby lawyers a damn good spanking for this outrageous exhibition of impropriety and immaturity.  It may well have been a disgrace that her office lost this case, but a loss hardly brings the kind of shame upon the office that Hennigan’s conduct does.

Update: It appears that consequences have been swift for Nathan. From Bennett’s Defending People :



Now—because of his DR violation? because of his Chronicle comment?—this prosecutor has been suspended for a week and moved to the intake division of the DA’s Office for six months.


How will his conduct stack up under Bennett’s Law of Rules? Will he take the punishment as a badge of honor, “proud to fight for what is right,” or will he take his marbles and go home?


Will Nathan be willing to suffer the consequences of his proud fight?  We shall see.  In the meantime, former Harris County prosecutor, purged by Pat Lykos, and alleged barbecue hater, Murray Newman, feels quite differently about Brian Wice’s op-ed.

And Generalissimo Francisco Franco Is Still Dead

A couple of days ago, I wrote about a New York Times article hot off the presses.  in 1989.  Not to be left ahead, the  Wall Street Journal reports that there are a  huge  number of federal crimes and they  largely ignore the existence of mens rea.

Shocking.  At least this was shocking the first few times around.

Perhaps there were large white areas in these papers that needed filling.  Perhaps the reporters were new and hadn’t heard that these issues had been thoroughly covered before.  But then, perhaps these issues deserved to be revisited and I’ve been unkind in lambasting these reports.

While there is nothing new about the issues, or the underlying problems, it remains that they are still a blight on our legal system, and our society, that has yet to be cured.  Sure, we know about the problems, but whoever said that knowing the problem was half the battle was wrong.  A start, but we’re nowhere near solving the problems. 

The expectation that people remember is, sadly, no longer reasonable.  People don’t remember.  Whether it has to do with their attention span or retention span, I can’t say, but they don’t seem to have much capacity to recall that we have problems that remain unresolved.  Whether people will remember these articles after the iPhone 5 comes out has yet to be seen.  I’m not sanguine about it.

Then there are the n00bs, the people who have just discovered that there is a big world out there with a bunch of important issues worthy of their attention.  Maybe the discovery came about because some aspect of it touched their lives.  Maybe they tripped over it.  No matter.  Today, they know.

The problem is that the n00bs never look back.  Just because they had the epiphany today doesn’t mean that it’s band, spanking new.  Like television reruns, if you never saw it before, it’s new to you.  Well, that doesn’t make it new to the rest of us.  Think of new parents, like nobody ever had a baby before them and they have invented the concept.  And they must tell us about it at unbearable length.

The issues raised by the Times and WSJ are important.  And they remain important.  And there are likely a great many people who either paid no attention the first (few) times around, or have forgotten, or weren’t there to pay attention because they were too busy cruising in their huggies.  Whatever, the problems are of a sufficient magnitude to justify another airing.

To the extent I was critical because these aren’t exactly cutting edge newsy issues, I now think I was wrong.  It was the curmudgeon in me, but not every article is written for curmudgeons.

That doesn’t mean that the writers couldn’t have put in a line or two about the fact that these are long-standing problems, problems that have defied ready solution, or problems that have festered for decades.  Doesn’t anybody learn about George Santayana anymore?

Still, better that these issues get space in the papers than a generation forget, or never know, they exist.

And Francisco Franco is still dead.  Sorry, I couldn’t help myself.

The Hidden Cost of Blogging

Lawyers who have a marketing blog need not read this post.  This will never happen to you, because, frankly, no one really cares when you write and, well, you don’t write anything of substance anyway.  If, on the other hand, you have occasional thoughts that appear on a screen, this could matter.

A while back, I  wrote a post about Arthur Alan Wolk’s lawsuit against Overlawyered, and Wolk left me a  love note that ended with the ominous sentence, “I hope you have insurance.”  I didn’t  take kindly to his threat, and apparently Wolk decided that I wasn’t worth his time as nothing came of it.  In the meantime, he had suits pending against a rather large group of people on the internet, with some particularly unsavory things to say about Reason, it’s editor and its commenters.

Since then, Reason and Overlawyered settled with Wolk.  From Paul Alan Levy at Public Citizen :



Wolk recently settled his lawsuits against Reason Magazine and against the Overlawyered defendants, and yesterday the defendants announced that settlement.  Reason posted a statement defiantly promising to keep its previous posts about Wolk online, but turning off the comment feature for the claimed purpose of protecting readers against being sued for what they might say in response.   Overlawyered went a bit further.

Overlawyered issued a joint statement with Wolk noting that it had learned, after making its original post, that Wolk had, in fact, “t[aken] precautions for his clients” in the incident that Overlawyered had originally criticized.  Not quite an apology, not quite a retraction, but certainly a correction of the record. 


At Reason, Jacob Sullum wrote about the settlement:

On August 12 he dropped the California complaint as well, and he recently agreed to a resolution consisting of mutual releases in which he promises not to sue us again for our past posts and we promise not to sue him over his litigation so far. That’s about as good an outcome as we could have reasonably expected, since the main issue for us all along has been maintaining the freedom to report and comment on issues of public concern.

But then Sullum concludes:



Wolk also sued certain pseudonymous Hit & Run commenters. He recently dismissed the suit against them, which was pending in New York state court, with prejudice, which means he cannot sue them again for the comments that were the subject of that lawsuit. 


Note to commenters: This costly and time-consuming litigation is over, and we do not want to see any further lawsuits filed as a result of comments on our site. Because it is impossible for us to screen and monitor all comments, we have disabled them on this post.


To be clear, no one enjoys being sued.  Whether justified or frivolous, there are costs involved of time, angst and, yes, money.  It’s painful to throw money in the toilet over complete nonsense, and as Overlawyered exists to point out, the American system doesn’t serve to protect the innocent civil defendant from the costs of our legal system. 

That said, we have to make a choice.  Stand up and take the hits, or hide under the bed and avoid any possibility of being sued, whether justifiably or not.  Paul Levy, after having written some posts about Wolk’s litigation, addressed this problem:


Wolk responded by threatening to sue me, as well as Techdirt and Scott Greenfield over their comments; he actually did sue me for about a week, although he dropped that action while muttering about how he was going to sue me later.  But with Techdirt, Greenfield and me, Wolk encountered a new phenomenon — bloggers who refused to cower before his threats, and even invited him to file suit if he thought he had a valid claim.  He has not done so, and I am confident that his bullying in that regard is at an end.  Note to other bloggers tempted to comment on Wolk: coraggio!


While I wouldn’t call it bullying, mostly because I hate this abused word, the reality is that one has to decide whether to stand up for things you believe in and, when someone threatens to take a punch or two, take the hit.

The defendants in Rakofsky v. Internet aren’t defending because it’s fun, but because they have made a few choices.  The first choice was to speak out against the egregious wrong that was done to a defendant in a murder case due.  The second choice was not to cower in the corner when threatened for having told the truth and said what needed to be said.  Despite the absurdity of Rakofsky having taken the offensive and attacked the blawgosphere, the defendants have to pay for their choice.  And they are, with one notable exception.  Unfortunately, New York doesn’t have an effective anti-SLAPP statute.

The case might be over by now, but for the delays caused by Rakofsky’s inability to find an attorney to represent him.  His original, nominal lawyer, Richard Borzouye, ran for cover. His  Craigslist ad didn’t pan out.  Bear in mind, had Rakofsky been prosecuted for his conduct, many if not all of the defendants in this case would be the first to defend him.  But Rakofsky isn’t a defendant. He’s the plaintiff, the attacker.  Aside from the fact that his claims are absurd and doomed to fail, what sort of perverse, twisted lawyer would take up his cause?  None, it would appear. 

To the credit of the profession, not a single lawyer, no matter how greedy, desperate or psychotic, has been willing to go so low as to be the hired gun in such a disgraceful attack.  I’m not sure I would have believed that there wasn’t some lawyer, somewhere, who was so slimy that he would grab the money and try to use the notoriety of the case for his own benefit. 

Some lawyers relish in trying to spin a dead loser into “the good fight,” as if no one would notice that they rep’d the attacker and were lying through their teeth.  That no lawyer is that disgraceful comes as something of a pleasant surprise. We’ll see whether disappointment will eventually set in should Rakofsky finally find someone who shares his “values.”

Yet Jacob Sullum’s Wolk post, where he closes the comments to his readers to avoid any further “costly and time-consuming litigation,” provides a disturbing legacy.  He has silenced his own readers in capitulation.  This time, it’s to avoid a known quantity, a particularly litigious plaintiff.  What about next time?  The internet is filled with potential plaintiffs who will take umbrage with our posts, our disclosures, our descriptions.  People get angry about stuff all the time.  Threats fly constantly.  Takedown letter come in from lawyers regularly.  It happens.

We have a choice.  Those of us who have chosen to write about substantive issues of public interest can either shut up or man up.  It doesn’t matter that we’re protected by law.  It doesn’t matter that claims are frivolous.  We are the targets.  And when we capitulate to threats or litigation, we only make ourselves bigger, easier targets. 

Of course, what’s the big deal of suffering the burdens of threats and litigation when we’re enjoying the vast riches and great prestige of blogging.

It Costs More To Win

There are a variety of costs associated with the criminal justice system that aren’t discussed in polite company, from the time lost to arrest and incarceration to the hard-earned money paid out to lawyers to defend.  One of my favorite questions from potential clients is “why do I have to pay if I’m innocent?” 

But Massachusetts has raised cost to a new level, by approving a shift of costs to the defendant even when the he prevails.  That’s right: Lose, you pay. Win, you pay.  Either way, you pay.  Via  Turley, from the Newspaper :


Motorists issued a traffic ticket in Massachusetts will have to pay money to the state whether or not they committed the alleged crime. According to a state supreme court ruling handed down yesterday, fees are to be imposed even on those found completely innocent. The high court saw no injustice in collecting $70 from Ralph C. Sullivan after he successfully fought a $100 ticket for failure to stay within a marked lane.

Bay State drivers given speeding tickets and other moving violations have twenty days either to pay up or make a non-refundable $20 payment to appeal to a clerk-magistrate. After that, further challenge to a district court judge can be had for a non-refundable payment of $50. Sullivan argued that motorists were being forced to pay “fees” not assessed on other types of violations, including drug possession. He argued this was a violation of the Constitution’s Equal Protection clause, but the high court justices found this to be reasonable.

The court’s rationale, that the state merely needed to meet the rational basis test for its imposition of fees on the innocent, was satisfied by the costs of process.


“We conclude that there is a rational basis for requiring those cited for a noncriminal motor vehicle infraction alone to pay a filing fee and not requiring a filing fee for those contesting other types of civil violations,” Justice Ralph D. Gants wrote for the court. “Where the legislature provides greater process that imposes greater demands on the resources of the District Court, it is rational for the legislature to impose filing fees, waivable where a litigant is indigent, to offset part of the additional cost of these judicial proceedings.”

Implicit in this rationale is that a traffic infraction is non-criminal, a distinction used with convenient frequency to penalize a person without the state being forced to endure all those nasty rights associated with criminal proceedings.  From one perspective, it’s better that a person who is convicted of traffic infraction doesn’t have to go on the Heinous Criminals Registry, along with murderers, rapists and jay-walkers. 

On the other, you end up with the anomalous situation presented here, where the cost of fighting, and winning, a ticket is higher than just paying it in the first place. 

Fines are punitive.  They are a punishment for violating a law.  But court costs aren’t punitive.  They are merely the price of living in a free society that provides a wealth of benefits and services to its citizens for their welfare.  To serve you better…

When the financial incentives are crafted in a way that the punishment for losing is less painful than the price of winning, it is irrational.  And it violates due process.  The recipient of a traffic ticket is being charged with unlawful conduct.  That it is nominally an infraction doesn’t make it any the less unlawful.  That we don’t call them criminals (at least in court decisions) doesn’t make it light and fluffy.  Indeed, see how much fun it is if you don’t bother to respond for your ticket and a warrant is ordered.  When they ask you to come to court nicely, they really don’t mean that it’s up to you if you have nothing better to do that day.

So if it’s in the nature of a criminal proceeding, even though conviction isn’t considered criminal (though they still use words like “guilty” and “conviction,” the keystones to a criminal prosecution), the imposition of costs to enjoy the process for the innocent makes no sense at all. 

That there are costs to having a legal system isn’t the question.  Clearly, there are costs. But crafting a pay to play legal system for matters of a criminal nature, resulting in punishment, is hardly rational.  It’s a financial incentive to avoid the exercise of due process and just take the least expensive route by pleading guilty and paying the fine, innocent or not.

Yet again, courts demonstrate that we have the best legal system money can buy.  So how much due process can you afford?

T

Silence Isn’t Inconsistent

In a quirky decision, the Appellate Division, Second Department  reversed the Staten Island attempted murder conviction of Henry Tucker based upon the prosecution’s use of his post-arrest, post-Miranda silence to contradict his trial testimony fingering another man, “Mustafa,” as the shooter.  From the New York Law Journal :


When arrested in connection to an October 2008 Park Hill double shooting, Henry Tucker refused to answer any questions after being read his Miranda rights.


A police officer then told him he would be charged with two counts of attempted murder, prompting Mr. Tucker to say, “I was there, but I didn’t shoot anybody.”


Mr. Tucker made no further statements until his June 2009 trial, when he again maintained he was present but not the shooter. He instead fingered his friend, an unapprehended man named “Mustafa.”


The typical argument by the prosecution when a defendant offers testimony at trial that exculpates himself is recent fabrication, meaning that given the time between arrest and trial, he invented a story that gets him out of the jam.


To impeach Mr. Tucker, prosecutors at cross-examination repeatedly questioned whether he had told police that Mustafa was the shooter. On summation, Assistant District Attorney Kathleen Naughton told jurors that “an innocent person when they’re arrested for a crime they didn’t commit and they know who did it will say [who] did it.”

The argument was that if Tucker’s claim at trial was truthful, he would have spoken up at the time of his arrest.  His failure to do so, to pin the blame on Mustafa, when he did blurt out that he wasn’t the shooter, undermines the credibility of his trial testimony.

The majority held, notably in contrast to the United States Supreme Court’s  misguided  decision in  Berghuis v. Thompkins, that Tucker’s refusal to answer questions wasn’t converted to a response by his denial of guilt.


“[H]aving deliberately availed himself of his right to remain silent, the defendant’s failure to give a more complete exculpatory statement to the police ‘may simply [have been] attributable to his awareness that he [was] under no obligation to speak’ to the police, including to implicate his friend in a shooting, and to his knowledge that his decision not to speak would not be used against him at trial,” the majority said in an unsigned opinion, citing the 1981 Court of Appeals ruling People v. Conyers, 52 NY2d 454.


Rather than go down the road of the minefield that the Supreme Court has crafted around the invocation and exercise of Miranda rights, the majority concluded that once a defendant chooses silence, it means something and won’t be so easily ignored.

In dissent, Justice Reinaldo E. Rivera wrote:


“Where, as here, a defendant speaks to the police and omits exculpatory information which he presents for the first time at trial, the defendant’s credibility may properly be impeached with that omission,” he wrote, adding that the evidence against Mr. Tucker was overpowering.

While the majority failed to see the evidence as particularly overwhelming, it didn’t dispute that a defendant’s credibility can be impeached by a prior omission that suggests that his trial testimony is a recent fabrication.  Rather, the court held that the exercise of his right to remain silent and refuse to answer questions cannot be used, even as a means of challenging Tucker’s “Mustafa” revelation.  The right to remain silent, once invoked, cannot be used against a defendant for any purpose.

What’s significant about this decision is that firmness of the court’s holding in light of the ongoing federal mushiness of Miranda invocations.  As the Supreme Court appears bent on dismantling Miranda, turning its exercise into a hypertechnicality rather than a shield to protect constitutional rights, the Second Department both strongly backed its invocation, without the subsequent exculpatory blurt somehow undoing the certainty of invocation by silence, and similarly held firm on the notion that the defendant’s enjoyment of a constitutional right cannot be used against him, even when it proves highly material to his credibility.

Of course, while the majority held that the evidence aside from the silence used to impeach the defendant’s credibility was not so overwhelming as to preclude its finding that there was a reasonable possibility that he would have been acquitted, Tucker will still face retrial, and the other evidence, eyewitness identifications of him as the shooter, plus video and still images of the shooting.  It would be highly premature to say that Tucker’s out of the woods.

Still, given the evidence against him, the strength of the majority decision is certainly worthy of note, and supports the vitality of New York’s independent constitutional protections of a defendant’s right to remain silent, and ability to exercise his Constitutional rights without fear that it will come in through the back door to bite him in the butt. 

The win by Kathleen E. Whooley of Appellate Advocates promises Tucker a fairer trial, but it’s still going to be a huge uphill battle.

SCOTUSBlog: The Business

One of the longtime bulwarks of the blawgosphere, SCOTUSBlog, is gone.  Having served to make  Tom Goldstein a player in that rarified niche, Supreme Court litigation, what once reflected some of the finest blawging is gone.  In its place, an enterprise has arisen.

SCOTUSBlog is now under the “exclusive sponsorship” of Bloomberg Law, whose funding allows it to do mainstream.

The sponsorship represents a tremendous public service by Bloomberg Law.  It allows us to improve and expand the information we distribute about the Court.  We now have four full-time staff.  Along with our reporter Lyle Denniston, Amy will devote almost all her time to editing and directing the blog; Kali and Kiera have converted to full-time blog employees.

Despite this staff, expect a fairly new direction in Supreme Court commentary.


Substantively, we are continuing our transition to more expert coverage.  Last Term, we published symposia with leading commentators, as well as coverage of individual cases from professors like Ronald Mann and Orin Kerr.  This Term, we have commitments from many more prominent academics to take responsibility for merits cases in their fields of expertise.  So we expect that the quality of our analysis will improve considerably.

Instead of getting a lawyer’s view of the decisions, anticipate the “prominent academic’s” approach, Not that they don’t have the time and inclination to write, some at enormous length and in excruciating detail, about important (and inconsequential) decisions, but the days of the “quick and dirty” or pragmatic reaction appear past. 

As for the views of readers, whether lawyers, lawprofs or lay-people, it’s clean and smart or the highway.



To comment, you will need to log in.  This involves a simple registration process, and all of the information provided during the registration process will remain confidential.  Registration is not required just to read the blog or community posts by other readers.


Of note, we will heavily moderate the community for civility and substance (in the sense that the comment has to be substantive, not that we have to agree with it).  We will delete comments and ban commenters when they fail to meet our standards.  Our goal is not to limit or to manipulate the debate.  But we will aggressively control its tenor and ensure that its quality is high.  By “high” quality, we don’t mean that the comments have to be lawyerly or contain detailed legal analysis.  Rather, they have to contribute to the discussion in some fashion, even if by asking further questions.  We hope many commenters will be non-lawyers.


Comments of this sort are a blawgers dream.  We all want brilliant and fascinating discussion, or at least a reasonable facsimile.  There’s nothing about Tom’s new “community” approach that is particularly novel, though he puts together as many rules and controls as the internet has to offer in order to keep the riff-raff out.

It seems curious that Tom emphasizes his hope that many commenters will be non-lawyers, given that SCOTUSBlog’s direction seems to be uber-law-geek with the reliance on academics rather than lawyers (or judges, for that matter) who will use these decisions in the trenches.  I expect it has more to do with the expansion of his reader base, given that lawyers comprise a relatively small universe of potential readers,  but Supreme Court sausage-making is hardly the sort of stuff that benefits from the common touch.

Goldstein’s entrepreneurial spirit is nothing to sneeze at.  He’s turned himself into a viable Supreme Court commodity, and his blog into the primary destination when it comes to all things Supreme Court.  Granted, it was more recitation and description than hard commentary, but that left something for the rest of the blawgosphere to do.  And Tom has now effectively monetized SCOTUSBlog, electing revenue over his Great Humanitarian Award.  Most of us would do the same.

Yet there’s something about this shift from, say, the amateur enthusiasm and freedom of a blawg unfettered by corporate concerns and one that adopts the mantle of officialdom.  There’s something about commenters who are vetted to create a “smarter” discussion, particularly given how many lawyers offer some incredibly dopey observations, but give rise to responses that generate light as well as some occasional heat.

Most disturbing is the resort to the formulaic approach of “ask the expert,” and the expert invariably being someone with scholarly credentials so that their every utterance comes with built-in academic credibility.  We see it in newspaper articles and on television news, the lawprof opining about things he’s never personally touched and only seen from afar.  We were knee deep in ideas from people who have never actually done the things they speak about with such refined expertise.  Now we’ll be neck-deep.

For those of us who have long appreciated SCOTUSBlog being there, being the first resource for Supreme Court decisions, briefs, reports, it seems unfair and unappreciative to question Tom Goldstein’s effort to make money off his blog and further his career as a Supreme Court litigator.  And yet, I can’t help feeling that we’ve lost a trusted friend, a reliable neighbor, who is moving from the ‘hood to the corporate bigtime.  And that our comments will be deemed too stupid and unworthy to make it onto the small screen.

Best of luck to Tom Goldstein, but don’t forget the lawyers who actually do the work in the trenches.  We’re not likely to bring you fame, big bucks or scholarly prestige, but we’ll be the ones cleaning up the mess left behind by the Supreme Court.