The first time I read this, I let it pass.  It’s not only good advice for any lawyer who wants to fake his internet persona, but the mantra of legal marketers throughout social media.  The second time I read this, I couldn’t ignore it.  Here’s the quote:

Don’t get involved in commenting on other lawyer blogs (especially a crew of criminal defense lawyer blogs who are friendly with this site) They are well followed and readers will follow your comments from their sites to yours, but these guys get into the habit of picking fights with other lawyers on the internet.

Emphasis supplied by Brian Tannebaum, who immediately adds “i.e., stay away from me.”  Me too, I hasten to add.  I’m part of this crew, if crew it is.  Which raised the question, why is it just us?

Brian is mean.  Me too.  Brian won’t let people lie on the internet with impunity.  Me too.  Many people hate Brian for calling them out when all they’re trying to do is manufacture a viable online marketing campaign so that they can make a decent living.  “Is it a crime to want to make a decent living,” they cry?

I know who you are.  You email me and tell me that you are outraged by all the liars and schemers on the internet.  You can’t believe how full of it people are, how shameless and brazen they are, how offensive they are.  You tell me all about it.  You tell Brian all about it.  You sometimes leave comments under a pseudonym or using your first name agreeing with what we right.  You are lawyers, judges, social media gurus who hate other social media gurus.  You applaud our efforts.

But.  You want that crew of criminal defense lawyers to do your dirty work and keep the internet clean and honest.

What prevented me from ignoring the quote at Tannebaum’s blawg was its exclusive reference to “a crew of criminal defense lawyer blogs.”  He was right.  It’s just us, a crew of criminal defense lawyers.  There are other criminal defense lawyer blogs that are flagrantly shameless in their lies and self-promotion, so we know that criminal defense lawyers aren’t some better breed of lawyer per se.  We have scoundrels in our ranks, just like all the other practice areas, and some are pretty awful.

But the characterization that the only crew to stay clear of is made up of criminal defense lawyers is right on target.  Why?  Why is it that no one except this crew is willing to take a stand and be the meanies of the blawgosphere?

Sure, we’re the gladiators of the profession, tough guys ready to stare down any enemy, no matter how big or nasty.  And what does that make you, frightened little teacups too delicate to take on a harsh word or stern stare from your brethren?  You civil litigators want to play tough guy at depositions or in the hallways haggling over thirds, but we see your knees shaking beneath counsel table in the courtroom when the judge tells you to stand up.  So which is it, fighter or coward?

My sense is that it’s neither. And both.  Because there’s a crew of criminal defense lawyer blogs doing the dirty work that so many of you privately applaud, it allows you to be the nice guy, the sweet lawyer who all the other lawyers like and feel comfortable about.  We do that dirty work so you don’t have to.  You get to craft an internet persona of likeability, because, well, it’s much nice to be liked than to be hated.  And, of course, people hire lawyers they like rather than lawyer they dislike, and it really isn’t in your personal self-interest to make enemies on the internet if you don’t have to.

And you don’t have to, do you, as long as there is a crew of criminal defense lawyers who will do your dirty work for you.

The original comment says that we have a “habit of picking fights with other lawyers.”  This isn’t quite right.  We have a habit of not letting someone lie, cheat and steal, even though he happens to be a lawyer (or disbarred lawyer, or non-practicing lawyer, as the case might be).  We have a habit of standing up for some nasty ethical proscriptions, like not deceiving people.  We have a habit of standing for something.

What do you stand for?

It’s not that guys like Brian and I, not to mention  Mark Bennett who does the dirty work as well, don’t appreciate your behind-the-scenes support for what we do.  It’s good to know that we have widespread support for being the janitors of the internet.  And there are others, lawyers who don’t practice criminal defense like Nino Pribetic and Ken, who stand alongside us publicly and call out the liars and scammers.  But the vast majority of lawyers who applaud our efforts do so from the shadows.  At best, there’s an occasional tepid post that’s less than enthusiastic about social media.

This is getting old.  As lawyers, we are ethically obliged to clean up the mess made by our own, to not let lies go unmentioned or scoundrels get away with scamming the public.  You’re a lawyer. You are obligated to do so as well.  It’s time to get off your fragile butts and take a stand, risk having someone call you meanie and make a potential enemy online in the effort to hold our profession to minimally ethical standards.

Don’t tell me how you agree with us and how much you appreciate our efforts.  Take responsibility for yourself.  I never want to read another baby lawyer or social media guru or money-grubbing lawyer’s comment advising others to avoid the “crew of criminal defense lawyer blogs.”  It should be all lawyer blogs, every honest, intelligent, ethical lawyer on the internet ought to be slamming the liars and scammers as well.

If you don’t have the guts or will to get into the game, then you’re no better than the scoundrels.  We may be a tough group, willing to brave the slings and arrows, but we’re not here to clean up the mess so you don’t have to get your hands dirty.

Guess which one of these young ladies is destined to become a criminal defense lawyer?  That means you’re the other one.

If you work for the Department of Justice, you get a muffin.  Probably, a darn tasty one, too.  By now, most have heard about the DOJ’s  less than frugal use of public monies to plan and fund law enforcement conferences.  Whether you laugh at the absurdity or cry at the waste, it’s destined to be remembered like the $400 hammers or $600 toilets as exemplars of poor governmental handling of our money.

If you spend time representing defendants in corporate or financial criminal investigations and prosecutions, however, these muffins take on a different flavor.  At the core of these cases, AUSAs who have never run corporations, built skyscrapers, manufactured consumer durables or distributed a product worldwide are busy substituting their judgment of good and bad choices for those of corporate executives who have accomplished these things.

To put it more bluntly, people are being prosecuted and convicted for not buying $16 muffins.

The issue was at its most apparent in “honest services fraud” cases, where the distinction between honest and dishonest rested with the sensibilities of lawyers in the government’s employ.  The argument was framed as “what choice would be made if you viewed the world through the lens of a young government attorney.” 

Not surprisingly, there was often a difference in opinion as to how an AUSA would handle dealing with the burgermeister of a small Swiss village, or a union business agent in a depressed southern town, and how the person whose job it was to get the job done would do so.  The latter was charged with being effective and efficient, getting a task accomplished as quickly and inexpensively as possible.  The former was charged with following an official checklist, even if it meant buying $16 muffins.

The message of $16 muffins isn’t just that the government doesn’t do a very good job of using its resources with some reasonable degree of thrift.  The message is that the very people who believe that they are uniquely capable of telling others, people who are employed for the purpose of achieving goals and accomplishing tasks, how they must do so upon pain of prosecution and conviction, aren’t very good at it.  In fact, they suck at it, as demonstrated by the $16 muffin.  Or the laundry list of other financial misuse, as determined by the DOJ Inspector General.

One has to wonder, had they been in the employ of a major American multinational corporation rather than the government, would they merely be admonished by the IG that they’ve frittered away millions of dollars, or would they have been the targets of an investigation resulting in the demand that their Board of Directors be subject to the oversight and scrutiny of DOJ regulators?  So they could serve $16 muffins to the directors?

And yet these young attorneys, who investigate and filter through their own limited experiences the propriety of how others make decisions about how corporations should function, maintain their belief that they not only know better than anyone else how business should function, but that anyone whose conduct doesn’t satisfy their sensibilities deserves to go to prison because of it.

Don’t expect to see an indictment any time soon over some senior vice president authorizing the provision of $16 muffins.  That would make for an embarrassing opening statement.  But if it happens to be a $6000 shower curtain, well, that’s another story entirely.  That’s clearly an indicia of a crime, right?

While you don’t hear much about the Elkins’  Silver Platter doctrine these days, variations continue to crop up from time to time, such as this debacle out of Oregon.

Just hours before jurors were to begin deliberating Monday on whether a former middle-school teacher was guilty of child pornography charges, the state abruptly dismissed its case against Logan B. Jack Storm.

Instead, after four days of trial, the state changed strategy and invited federal authorities to prosecute the 35-year-old Portland man. Federal agents arrived at the Multnomah County courtroom where Storm’s trial had been unfolding and arrested the former Beaverton Stoller Middle School teacher.

Such duplication could take place anywhere, they said. And they noted that that inability to prove venue was one factor that led the Oregon appeals court to partially overturn the conviction of another teacher accused of possessing child pornography in a similar case.

The argument, made after the state rested its case, prompted Multnomah County senior deputy district attorney Donald Rees to consult with U.S. Attorney Dwight Holton and the state Justice Department about the impact of the appeals court’s ruling.

Holton agreed on Friday to prosecute Storm, Rees said, leading to Monday’s arrest and the state’s decision to dismiss the 30 counts of encouraging child abuse in the first degree. The federal effort will not face the same venue issues that state prosecution does, he said.

To the eyes of anyone other than another lawyer, legal writing is the ugly, hated illegitimate child of good prose.  The only thing worse than legal writing are efforts by lawyers to produce writing that doesn’t sound like legal writing.  Unless you believe the 7th Circuit’s condemnation of Walter Maksym in  Stanard v. Nygren.

We affirm. The district court was well within its discretion to reject the second amended complaint and dismiss the case with prejudice. Each iteration of the complaint was generally incomprehensible and riddled with errors, making it impossible for the defendants to know what wrongs they were accused of committing. Maksym’s persistent failure to comply with basic directions from the court and his open defiance of court orders amply justified the judge’s decision to dismiss with prejudice. Moreover, like his pleadings in the district court, Maksym’s appellate briefing is woefully deficient, raising serious concerns about his competence to practice before this court. Accordingly, we order Maksym to show cause why he should not be suspended from the bar of this court or otherwise disciplined under Rule 46 of the Federal Rules of Appellate Procedure. Finally, we direct the clerk to send a copy of this opinion to the Illinois Attorney Registration and Disciplinary Commission.

The appeals court included a 345-word sentence by Maksym to illustrate. At least 23 sentences contained 100 or more words. “Much of the writing is little more than gibberish,” the appeals court said.

Yeah, not good writing.  Got it.  But the court not only affirmed dismissal of the complaint, but referred the matter to the disciplinary commission and ordered Maksym to show cause why he shouldn’t be suspected from practice in the circuit and otherwise disciplined.  

Was Maksym’s writing so bad as to justify such a harsh reaction by the court?  Perhaps.  Stringing together 345 words surely won’t win the brevity award for being the “soul of wit.”   But incomprehensible writing abounds.  And courts aren’t immune any more than lawyers.  We’ve all read decisions that leave us scratching our head as to what a string of words with no seeming connection means in a decision. 

But let’s take this a step to the side.  The worst Marksym’s “incomprehensible gibberish” could do is get his client’s complaint tossed and himself in trouble.  Not good for the client or Maksym, but hardly an institutional disaster.  The rest of the legal system goes on.

What of the “incomprehensible gibberish” that constitutes complaints and indictments?  The 7th Circuit’s chief complaint of Marksym’s writing is that it “mak[es] it impossible for the defendants to know what wrongs they were accused of committing.”  That’s a problem in a civil action.  And yet the court isn’t troubled in criminal matters when the entirety of notice consists of tracking prolix statutory language with some generic detail tossed in?

The Circuit’s need to hold Maksym out as the poster boy for incompetent legal writing would carry far more meaning if they ever gave similar consideration to prosecutors in criminal cases.  While it may not necessarily involve 345-word sentences, it commonly involves paragraphs of disconnected sentences followed by string cites with parentheticals that eventually wind down to either irrelevant recitations of law or conclusions unsupported by even the headnotes if not the text of decisions.  Happens all the time, but I’ve never seen a court take note of it, no less disparage a prosecutor for it.

The bane of a defendant’s ability to defend is that wholesale meaningless of accusatory instruments, leaving defendants to wonder what factual allegations could possibly support the official language of the law that accuses them of grievous wrongs.  Attempts to get a court to compel the prosecution to say something real, substantive, are met with the response that provision of actual facts would “prejudice the Government.”  Facts prejudice the government?  It must be so, because courts never make the government give them up.

In a letter posted by  Mark Bennett the other day, the government argued against the defense having the names of jurors in advance so they could research their online information:

If the parties were permitted to conduct additional research on the prospective jurors by using social media or any other outside sources prior to the in-court voir dire, the Court’s supervisory control over the jury selection process would, as a practical matter, be obliterated.

I’ve read this sentence a dozen times and have no clue what it means.  And it’s only 45 words long.  It’s not that I can’t interpret it, read between the lines, surmise the point, but if we’re going to castigate lawyers for bad writing, why not start here?

When a prosecutor submits incomprehensible gibberish to a court, it’s usually characterized as “artfully crafted,” giving at most the appearance of substance while disclosing absolutely nothing of value.  Has any court referred a prosecutor to the disciplinary committee for this?  Has any court admonished a prosecutor for presenting gibberish that denies the defendant his right to know what wrongs he is accused of committing?

I’m all for better legal writing, by lawyers and by courts.  But if judges are going to start holding lawyers up to public ridicule for their bad stuff, let’s spread the love around a bit more.  We’re up to our eyeballs in meaningless, incomprehensible writing, and as the 7th Circuit rightly acknowledges, defendants deserve better.  Even criminal defendants.

In the ongoing saga of the cottage industry of vultures seeking to eke a point or two out of the middle of that huge stack of money that flows to the “legal sector,” a new but curious entrant has appeared:  AttorneyFee.com.

What makes this stand apart from the bunch is that there are no fees involved, either for lawyer or client.  Unlike the mass, they have no finger in the pie, and humorously state:

We believe in doing well by doing good. Our mission is to expand access to legal services by providing consumers with the highest quality information about the affordability and availability of attorneys in their communities. We are confident that if we pursue that mission faithfully, we will create tremendous value for consumers and attorneys alike, and eventually find a way to pay the bills.

My guess is that they have a better business model than they let on (such as build the eyeballs and sell advertising), but still, it’s refreshing not to have a business claim to exist for solely humanitarian purposes while reaching into someone’s back pocket. 

That said, what’s the point of this new enterprise?

Our Story

In the four years since I graduated from law school, I noticed that 70% of the people who called my office were inquiring about the same two things: (i) how much do I charge, and (ii) when am I available. The receptionist in my firm used to spend a good chunk of each day just answering the same questions over and over again. These calls prevented her from doing other work and created an unnecessary drain on office resources. I realized that if my firm could find a more streamlined way to communicate with potential clients about affordability and availability, then we could cut down on frivolous inquiries, save significant administrative resources, and actually get more clients in the process. This insight is what lead me to create AttorneyFee.

Beibei Que, Esq
Founder of AttorneyFee

As is often the case, one person’s experience in the law doesn’t necessarily scale well to others.  While this may be true for the practice of a young lawyer, or the practice of a particular niche, it doesn’t reflect either the profession as a whole or the concerns that my clients have.  But then, perhaps criminal defense isn’t part of the mix?

When you need a criminal defense attorney, you need a criminal defense attorney.  You can’t possibly put a price on your freedom, or the freedom of your loved ones.  Having said that, the fact that you value freedom doesn’t mean you should let yourself get ripped off.  You owe it to yourself to find an attorney who is both a competent provider of legal services as well as a fair and compassionate human being.  In order to do that, you must first develop an understanding of how defense attorneys generally charge for their services, and what is considered a “fair price”.

For the most part, defense attorneys charge on an hourly basis.  The reason for this is that there is no real way to tell, in advance, how much time or effort will be involved in any given case.  After all, criminal defense work is, by its very nature, contentious.  And whenever there is dispute, there is always unpredictability, because you never know what the other side will do (in this case, we’re referring to the prosecutor).

Uh, no.  Somebody misinformed Beibei Que, as criminal defense lawyers do not usually charge on an hourly basis. Almost never, in fact, because they would never get paid.  But then, if they didn’t, this concept wouldn’t apply at all.

AttorneyFee, as with others in this cottage industry, focuses exclusively on the “cost-conscious consumer,” which misapprehends the most significant part of the equation, competence.  If you’re buying widgets, price is all you need to know.  Lawyers are different, though becoming less different by the minute from what I see.  Listing lawyers by hourly fee alone is meaningless, if not misleading.



Not a pretty site, nor one that comes off as particularly sophisticated, but these aren’t attributes that bother me.  What does is that the information provided is worthless, whether this is what potential clients want or not.  Rather than pander to ignorance, inform and educate. 

Not here.  This is pandering, pure and simple.  If it’s all about money, then this is all they need to know.  And the cottage industry feeds this misguided demand, as if lawyers are fungible and we’re just widgets for sale.

And like all business hovering around the edge of the law, there’s the disclaimer:

Prices shown on AttorneyFee are in no way to be construed as an advertisement or offer to perform services. Please note that the prices shown on AttorneyFee are not necessarily endorsed by the individual attorneys with whom they are associated. Finally, please note that the prices shown are rough approximations. Actual prices may vary depending on the individual circumstances of your matter.

Not sure what this means, other than the typical nothing said here means anything, but if it’s not a solicitation, then what the heck is it?  On the other hand, at least the usual ethical implications of fee splitting aren’t implicated by hypertechnical explanations.

That this service produces what it purports to produce, and at no cost to consumer or lawyer, is clearly in its favor.  I can imagine, to some extent, that in certain practice niches, this service will work fairly well, notably where the services needed are more along the lines of commoditized legal services.

To the extent it feeds the perception that law is no different than selling any commodity, it does the profession a disservice.  But then again, if a potential client wants to search for a lawyer on the basis of hourly fees alone, better that they go to AttorneyFee.com and find themselves a darn fine price than call me.  These are not my type of clients.

Last night was Nancy Grace’s debut as a dancer.



In my humble opinion, her skills as a dancer far exceed anything else she’s ever done.  And she’s never looked hotter.  Never.

The decision of the Georgia Board of Pardons and Parole is expected today, and likely to be the final decision on whether Troy Davis lives or dies.  The case has been up and down, back and forth,  The argument against execution is that the evidence of Davis’ guilt unraveled since the trial, leaving much in doubt.  He may not be guilty.

The problem is that the intense scrutiny, the recantation by purported eyewitnesses, all came after the conviction.  At that point, the question of guilt is resolved, and the argument shifts on its axis. No longer are we talking about a presumptively innocent man, but a man proven guilty. 

Whether this will really be the final word on Troy Davis is unknown.  But this is a case filled with unknown.  As  Jeff Gamso put it:

Troy Davis

Michael Allison’s  Illinois eavesdropping charge was dismissed.  In Chicago,  Tiawanda Moore was acquitted of eavesdropping.  So life is good and the craziness of charging citizens with eavesdropping for recording police in the public performance of their duty is behind us? 

Not yet.

A senior appeals court judge said Tuesday that if Illinois’ eavesdropping law were expanded, gang bangers and “snooping” reporters would run rampant, secretly recording conversations unchecked.

“If you permit the audio recordings, they’ll be a lot more eavesdropping. … There’s going to be a lot of this snooping around by reporters and bloggers,” U.S. 7th Circuit Judge Richard Posner said. “Yes, it’s a bad thing. There is such a thing as privacy.”

This isn’t some nutty state court badge-licking judge pandering to get the cop union endorsement for his next election run.  This is Richard Posner.

Posner, considered one of the most influential jurists on the appeals panel, made his comments Tuesday morning as the Illinois American Civil Liberties Union argued to change current law to make it legal to audio record public officials in public areas.

On the one hand, most of us appreciate Judge Posner’s concern for privacy.  We like privacy.  We want privacy.  We appreciate privacy.  But we want it for ordinary citizens, for us, to maintain our privacy from governmental intrusion.  That’s not the privacy that Judge Posner is talking about. 

Judge Posner’s privacy concern is for police and government officials, their “such thing as privacy” while serving in their governmental function, while working on the public’s dime.  He speaks to privacy of public officials to be free from “snooping around by reporters and bloggers.” 

For generations (if not centuries), allegations of misconduct have been leveled against law enforcement, and summarily dismissed.  The analysis was always the same: Who can believe the defendant, the person accused of a crime, when compared to a police officer, sworn to protect and serve.  The win/loss ration was always the same. The defendant loses.

Video changed everything.  For a few years now, I’ve run an occasional series of posts entitled “But for Video.”  The gist of the title is that if it were not for the existence of video evidence proving police abuse and misconduct, no one would believe it ever happened.  No judge. No prosecutor. Maybe not even me.  But for video, the outrageous lies, the horrific beatings, would never be known. 

And Judge Posner thinks this is a bad thing?

Will there be “snooping,” a derogatory word that substitutes for investigation if one wasn’t inclined to be dismissive, of cops and public officials?  Sure.  And if they’re doing things that they shouldn’t be doing, then a whole lot of snooping ought to be going on.  If the snooping produces nothing interesting, then there won’t be as much snooping.  And if the snooping happens to show some cops beating up a cuffed defendant or nice, law-abiding person with a video camera, then we won’t be confronted with that either. 

The dismissal of Allison’s charges, and the acquittal of Moore, certainly reflect an enormously positive trend in the prosecution of citizens for creating evidence of law enforcement impropriety.  The concern of Judge Posner, on the other hand, reflects a judicial perspective that elevates the privacy of law enforcement over transparency and integrity.  He doesn’t want to know the truth. 

The truth can be ugly and difficult to deal with.  It was so much easier all those years when judges just adopted whatever a cop said and rejected the defendant’s claims of abuse.  So what if the defendant shows up for arraignment with a broken nose and the only injury to the cop was a scuff mark on the toe of his boot. 

“Why would Officer Smith want to hurt this defendant, a person he doesn’t know and against whom he holds no grudge?”  This argument has been effectively used thousands of times, and it’s a darn good one.  And yet the videos show it happens anyway.  “Why” is a great question.  “Why” indeed?  Ask the cop “why.”  We only know it happened, and we can only prove it because there’s a video.

It would seem that the myriad videos conclusively proving that cops do engage in impropriety, beatings, abuse, lies, would have some impact on the collective consciousness, including judges.  It would seem that given how far we’ve come in having conclusive proof that judges could no longer dismiss allegations by defendants that they were the victims and not the perpetrators.  It would seem that no jurist who has the slightest concern for the integrity of the legal system, the honesty of law enforcement, the welfare of the public, would want to return to the days when we pretended that none of this ever happened.

And yet Judge Richard Posner’s concern for the privacy of police in the performance of their official duties weighs more heavily on his mind than does his concern for the public.

This is a bad thing.

Now that the Supreme Court has ordered a stay in Texas’ execution of Duane Buck, whose sentencing phase was tainted by the introduction of race when psychologist Walter Quijano responded to a prosecutor’s question that blacks were more likely to commit future violent crimes than white, we can all take a sigh of relief and sit back.  But there’s a big, no huge, gap that few have mentioned.  It’s time to talk about it.

Quijano, the evil psychologist who inserted his bizarre and unsupported theories of race and crime into the trial, was not called as a witness by the evil prosecutor.  The opening for the evil question on cross examination that put race into the mix wasn’t manufactured by the evil prosecutor or allowed by the evil judge. 

Here’s the sad, hard reality:  Walter Quijano was called as an expert witness by the defense.  On  direct examination by Buck’s lawyer when he “”solicited testimony from him regarding the use of race … for predicting future dangerousness,” the defense inserted race into the sentencing phase.  Knowing of Quijano’s theories about race and recidivism, the defense nonetheless used him as a witness.

In other words, this discussion about all the terrible things that happened to Duane Buck, the impropriety of inserting race into the decision to execute him, utterly omits one key factor: It all leads back to Duane Buck’s own lawyer. 

And who was Duane Buck’s lawyer?  Jerry Guerinot.

Does that name sound familiar?  It should.

A good way to end up on death row in Texas is to be accused of a capital crime and have Jerry Guerinot represent you.

Twenty of Mr. Guerinot’s clients have been sentenced to death. That is more people than are awaiting execution in about half of the 35 states that have the death penalty.

“People who are well represented at trial do not get the death penalty,” Justice Ruth Bader Ginsburg has said.

So what is Mr. Guerinot’s secret?

Enter Walter Quijano in this case.  A bad choice.  In other cases, other bad choices. 

“Basically, he’s an undertaker for the State of Texas.”

When the  New York Times told Buck’s story, of how the case went wrong, there was no mention of Jerry Guerinot, as if Buck had no lawyer at his trial.  The  Times editorial decried the use of race, without mention of what distinguished Buck’s case from the other five who were affected by Quijano. 

In  writing about this the other day, and without more complete information in the stories available, I made the terrible mistake of assuming facts not in evidence.  In a comment, Shawn McManus, who labored under the same mistaken assumption, asked :

If Quijano were an expert witness called by the defense, would that make a difference?

I don’t know if he was and I don’t think that it does make a difference as the prosecutor shouldn’t have followed the line of questioning anyway.

I responded :

No, provided he wasn’t a defense witness and the defense didn’t elicit or open the door to (though I can’t imagine how this could be possible, though I can envision a court saying it) the improper testimony.

Talk about being wrong.  I was soon informed just how badly colored by response was, and that my assumption that no defense lawyer could ever be so shockingly incompetent, foolish, dangerous as to not only introduce an outlier like Walter Quijano into the mix, but then open the door to bizarre racial theories that would help, if not assure, my client’s being sentenced to death, was completely wrong.

While some think I’m less than kind to the brethren, disinclined to conceal bad things done by lawyers and shift all blame to the players in the system who are acceptable villains to criminal defense lawyers, my assumption here still reflects my bias, that no criminal defense lawyer can be that bad.  Indeed, they can.

Duane Buck should no more be executed because the State of Texas assigned its undertaker, Jerry Guerinot, to be his lawyer than if his execution was the product solely of outrageous prosecutorial or judicial impropriety.  It implicates very different tests, particularly where, as here, Guerinot’s decision to put Quijano on the stand as the defense expert was tactical, though so obviously risky that it was beyond any possible sound judgment.  Yet, that a defendant’s unfair sentence came about at the hand of his own lawyer is a very different equation.

Had this not been pointed out to me, in fact my nose rubbed in it, it would never have been clear to me how this horrible sequence of events resulted in Buck’s death sentence.  These stories cannot, however, omit the crucial dots that need connecting, even when the missing dot turns out to be the criminal defense lawyer. 

All of us, and criminal defense lawyers more so than anyone else, need to remember that our failure can just as easily be the source of an execution as our adversaries.  Just because the media leaves that dot out of the tale doesn’t change how such outrageous errors happen.

It’s not often that someone gets to sit next to  Above the Law’s editor, Elie Mystal, twice in a week, provided your name isn’t Lat and you’re not on trial with him.  For those who read ATL, you know that he’s got a wicked sense of humor, fights contemporary spelling and grammar protocols and takes a ton of crap from the commenters.

I’m here to tell you that Elie is an extraordinary young man.  First, his bio:

Elie Mystal is an editor of Above the Law.His first name is pronounced like Eliot without the “it,” and his last name is pronounced like Cristal (the champagne).Prior to winning the ATL Idol Contest, Elie wrote about politics and popular culture at City Hall News and the New York Press. Elie received a degree in Government from Harvard University and a J.D. from Harvard Law School. He still has a rash from all the poison ivy.He used to be a litigator at Debevoise & Plimpton but quit the legal profession in lieu of stripping naked and lighting himself on fire.Elie is a proud and basically competent husband. He is a contributor at True/Slant and enjoys the Mets, dogs, and arguing with strangers.

Not an unimpressive background, though he isn’t kidding about his experience at Debevoise driving him to the brink of nudity, something that no one wants to see.  Yet this fails to begin to capture either his intelligence or thoughtfulness.*

Sitting next to Elie on a panel at the Asian American Bar Association of New York conference held at the Skadden Arps offices in Manhattan, a terrific conference by the way, I had a chance to watch Elie play the room.  Gregarious, self-effacing, funny as can be, one would be hard-pressed to realize that he holds one of the most powerful positions in the blawgosphere,

Whether or not you read or like ATL, it would be foolish not to realize the impact it has within the Biglaw community.  It can make or break careers, and on a really good day, contribute to the demise of a law practice through its choice disclosures.  When I asked who in the room read ATL, every hand went up.  Every single one.  That’s clout.

While he assumes the persona of the comedian, and he’s got a funny anecdote for pretty much every situation, make no mistake about it. Elie is brutally smart and aware.  The nuance of his comments is easy to miss, but if you listen closely, process the ideas he tosses about at lightning speed, you immediately realize that Elie is one of those guys whose minds move seamlessly through a multitude of ideas so quickly that its a struggle to keep up.

Chatting with him after our talk yesterday, one thought struck me and prompted me to write about Elie.  The commenters at ATL write smack about him constantly.  On the one hand, this is a good thing, reflecting the fact that he is and remains relevant.  For contrast, when Jay Shepherd posted his  final small law column on ATL, comments were sparse (for ATL). Few read the column, and fewer still cared. He no longer mattered, and if you’ve ever had the misfortune of reading his column, you would understand why.

For all the incredibly nasty things said about Elie, which he tolerates with amazingly good nature and wears like a badge of honor, he is relevant.  The lost children who populate the comment section feel powerful having someone to beat up on, and it has to be someone more worthy than themselves to count.  That’s why they’ve chosen Elie.

Having had the opportunity to spend some quality time with him, I’m enormously impressed with this kid.  Sure, the infantile sex jokes and obsession with scatological references aren’t my thing, and hopefully he’ll outgrow them someday, and his strained use of ghetto-speak is contrived.  Harvard didn’t waste space on him.

If you get the chance to spend some time with Elie, do it.  If you want to leave a comment at ATL making fun of Elie, you can do that as well.  He can take it.  But know that this is quite an extraordinary intellect and person, and that whatever joke you make is merely an homage to the influence he rightly holds in the blawgosphere.  And know that this influence is in very good hands.

*That’s right, I’m writing something nice about someone.  Stercus accidit. Get over it.