There’s a tingle in the air as talk spreads that the Supreme Court will consider eyewitness identification when it hears Perry v. New Hampshire, the first the court will take a “hard look” at the issue since Manson v. Brathwaite in 1977.

Adam Liptak talks about this in his  New York Times Sidebar column (yes, Liptak’s still around).

“There is almost nothing more convincing,” Justice William J. Brennan Jr. wrote in a 1981 dissent, quoting from a leading study, “than a live human being who takes the stand, points a finger at the defendant, and says, ‘That’s the one!’ ”

But of course, eyewitness identification has been the subject of many studies in the past 30 years, all of which show that it’s effectiveness is only trumped by its unreliability.

Every year, more than 75,000 eyewitnesses identify suspects in criminal investigations. Those identifications are to wrongful  wrong about a third of the time, a pile of studies suggest.

Mistaken identifications lead to wrongful convictions. Of the first 250 DNA exonerations, 190 involved eyewitnesses who were wrong, as documented in “Convicting the Innocent,” a recent book by Brandon L. Garrett, a law professor at the University of Virginia.

Of course, the eyewitnesses were absolutely certain in their identifications.  And the juries believed them. And almost always do.  How can you doubt the nice witness who says, “I will never forget that face”?  Even knowing how deeply flawed such testimony can be, it’s compelling.  And nearly impossible to challenge.

The only scrutiny that now applies to these identifications relates to those initially made under “unduly suggestive circumstances,” meaning that the suspect is shown to the eyewitness with a neon sign over his head, “this is the guy who did it,” or in a line-up where he’s the only black guy among a group of white men wearing priest collars.  Even then, it’s only suppressed where the prosecution can’t prove that the witness’ memory as eyewitness is so awful that there’s no independent basis for the ID.  It’s a tough burden.

Will the Supreme finally grab the bull by the horns and address the fact that eyewitness identification is at the heart of more wrongful convictions than any other type of evidence?  Well, here’s  the issue coming before the court:

QUESTION PRESENTED:

When a witness in a criminal case identifies a suspect out-of-court, under suggestive circumstances which give rise to a substantial likelihood of later misidentification, due process requires the trial judge to determine whether the out-of-court identification and any subsequent in-court identification are reliable before either may be admitted into evidence.

Question: Do the due process protections against unreliable identification evidence apply to all identifications made under suggestive circumstances, as held by the First Circuit Court of Appeal and other federal courts of appeal, or only when the suggestive circumstances were orchestrated by the police, as held by the New Hampshire Supreme Court and other courts?

Could the issue get much smaller?  Granted, non-police arranged identifications are a fairly common occurrence, with the eyewitness stumbling upon a person on the street (or from her apartment window, as happened in Perry) who looks like the person who did ’em the dirty.

The current state of the law, under Neil v. Biggers , is that only police arranged identifications are subject to scrutiny.  The unfortunate premise is that suppression of a bad ID is to teach the cops a lesson, a la the exclusionary rule, as opposed to making sure that innocent people aren’t convicted on bad identifications.  Yet again, the gatekeepers of evidence don’t concern themselves with keeping bad evidence out, but only with smacking the hands of law enforcement for being the enablers of bad evidence.

While there are a number of amici, like the American Psychiatric Association , who are trying to slide through the side door the research challenging the underlying reliability of eyewitness identifications, hoping to have the Supremes require that courts scrutinize all identification procedures for reliability under the due process clause, the likelihood of the court seizing the opportunity to make a big ruling, one that addresses the inherent unreliability of IDs, or the procedures that are still being used which we know to contribute to erroneous identifications, like the typical line-up procedure instead of a double-blind.

Will there finally be some relief from incredibly powerful and yet inherently unreliable eyewitness identifications?  Don’t hold your breath.  The Supreme are barely capable of making a decision that provides a complete answer to the question before them, no less a broader rule that actually provides a framework for the courts to use going forward. 

Under the guise of judicial modesty, expect the most narrow ruling possible, and a refusal to acknowledge that any question exists but that eyewitness identification is the most powerful evidence available.  After all, without it, a vast number of prosecutions would fail, and defendants be acquitted.  That would include the guilty as well as the wrongfully convicted innocent, and we can’t let all those bad people walk the streets when we know they’re guilty as sin.

And if some innocent people are convicted because of the absolute certainty of the mistaken eyewitness, the court will take comfort that the mistake can be corrected by some appellate or habeas court later.  Hopefully before they’re executed.

Update:  And ironically, today the New Jersey Supreme Court  dealt a blow to bad eyewitness IDs:

New Jersey’s highest court ordered changes today to the way eyewitness identifications are used in court, saying the current system is not reliable enough, fails to deter police misconduct and overstates jurors’ ability to evaluate the evidence.

Currently, a defendant has the burden of proving there was undue suggestion during the identification process. That won’t change. But the court has ordered that when a defendant can show some evidence of suggestiveness by police, a pretrial hearing must be held to explore it.

The court also requires a system be developed to better explain to juries the potential flaws with eyewitness identifications.

It’s not a cure, nor does it cover all the inherent evils, but it’s a darn good start and better than we can anticipate from the Supremes.

H/T Ambitious Blondes

The longest I can recall was Supreme Court Justice Edward Greenfield, but those were civil cases. So what if a judge failed to decide a motion for a while, even if that “while” was nine years.  It was merely fortunes, reputations, people who wanted to move forward with their lives but were constrained to wait.

The answer we all keep in our pocket when a litigant gets antsy and demands to know why the court hasn’t yet ruled on his case is that we can call up the judge and yell at him, but it’s not likely to make the judge any more inclined to rule in our client’s favor.  That usually shuts them up.  You see, we all know the maxim, “justice delayed is justice denied.”  But lawyers know that an adverse ruling is invariably “justice denied” to the losing party.  Such is the nature of “justice.”

But what about freedom delayed?  The delay didn’t work out too well for Omer Harland Gallion, who waited for United States District Judge Percy Anderson to rule.  From the L.A. Times :

Justice delayed was justice denied for Omer Harland Gallion. He died in prison in his sixth year of waiting for U.S. District Judge Percy Anderson to act on a decision that he had been wrongfully convicted and should be released or retried.

Anderson took no action until December, when he dismissed the matter as moot after an attorney brought Gallion’s death to his attention.

Two other cases in which junior judicial officials found grounds for striking prisoners’ felony convictions also languished unattended by Anderson for five and a half and eight years, respectively. Another prisoner who petitioned for relief in 2002 is still waiting for an answer.

“Judge Anderson is an excellent judge,” said Chief Judge Audrey B. Collins. “I have absolutely no reason to believe there was any bias that permeated his handling or played any part whatsoever in this.” She noted that the district’s 25 active judges carry caseloads that should be spread among at least 36.

The arrest and prosecution of Dominique Strauss-Kahn didn’t begin in a typical fashion, and surely isn’t ending that way.  Having whisked him off a plane to France, the New York County District Attorney’s office had a hot potato on their hands.  DSK was exceptionally wealthy, politically huge as potential president of France and about to leave the jurisdiction so that they would appear to have let a rapist slip through their clutches.

Every decision in the early hours of the case had the potential to explode in the prosecution’s face. 

The rush to indict was a product of New York’s law, CPL §180.80, requiring the release without bail of a defendant charged with the felony but unindicted after 144 hours. Had they not indicted and DSK hopped the next AirFrance to Charles De Gaulle, the failure would have tantamount to complete incompetence.  That wouldn’t have played out well.

Even in the  first 48 hours of this case, there was an odd odor emitting from the shifting narrative.  The “facts” relied upon in support of the “compelling” evidence of guilt would appear and disappear without explanation, or, for the matter, any critical scrutiny.  But then, that’s the nature of rape allegations, which are sacrosanct in the hierarchy of debatable crime.  Not until something explodes can they be questioned or doubted.

DSK’s subsequent release, on extraordinary bond conditions, by Judge Michael Obus was fortuitous for all involved, and reflected one exceptionally good decision and one extremely fortuitous event.  The decision was to retain Ben Brafman, an honest-to-God criminal defense lawyer rather than a Biglaw former AUSA poseur whose skillset is knowing all the shortcuts to race to the prosecutor’s office. 

The combination of Brafman and an unlimited budget for defense investigation was not merely a huge benefit to DSK, but a matter of enormous concern for the prosecution.  If there was anything to be found that would undermine their case, the defense would find it and exploit it.  For those who harbor the inexplicable belief that the defense would somehow be wrong or disingenuous by using every bit of evidence available, that’s exactly what it’s supposed to do.  And exactly what the prosecution would have done as well.  This is war, not tea.

The fortuitous event was that the indictment was wheeled to Judge Obus, and bond was set for DSK’s release.  It was monumentally high bond, with extreme terms, but still it got him off the Rock, and that gave everyone some breathing room and the ability to spend time on other aspects of the case.  Had the case gone to another judge, this might not have been the case.

A third occurrence, which grew from an entirely external source, that influenced what would subsequently transpire, came from the effort’s of DSK’s accuser’s lawyer.  Normally, victims don’t need an attorney.  Nafissatou Diallo, the Sofitel maid who claimed rape, retained Kenneth Thompson, who seized his moment in the limelight and spent more time talking up the case to the media than helping his client conform her story to the truth.

As it turned out. Diallo’s credibility was slightly below a turd, and the more she talked and investigators dug, the worse it got.  The point is made that even liars can be raped, certainly true.  But liars make bad witnesses, and the nature of the proof of rape is largely dependant on believing the alleged victim’s story.  There was physical evidence, semen, but that doesn’t make it a rape.  And Diallo’s was wide open to all manner of motives to lie.

The prosecution was again confronted with a host of unpleasant choices.  Their star witness was anything but.  The world was focused on this case, making it not merely a local or even national high profile case, but one with international implications.  The defense had the ability and capacity to slice and dice this case.  The prosecution had no good options available to it, assuming that dismissing a case to which they were so deeply committed couldn’t be called a good option.

Was it different because DSK was wealthy and prominent?  Of course, and from a multitude of angles. Had he not been wealthy, his ability to mount a devastating defense would have been called into question, and the equation would have been different.  Had he not been prominent, the country and world wouldn’t have been watching, and scrutinizing what it watched.  Losing at trial isn’t the biggest deal provided no one is watching.  Losing when everyone is watching, and then being exposed to criticism for having pursued a case with such dubious proof is another matter.

That it shouldn’t work quite this way makes for a nice fairy tale, but fairy tales don’t often come true.  Every case should get the defense DSK got, but they don’t. Every case should be investigated as deeply as this one, but resources are scarce and are sometimes dedicated on a media triage basis.  The life of every defendant should receive the same concern as DSK’s.  This costs nothing to do. There’s no legitimate excuse for the fact that such serious thought is only exercised in the rarest of instances. 

The prosecution filed a 25 page  motion to dismiss the indictment.  Ken at Popehat surmises that this isn’t the way it usually happens, and he’s quite right.  The normal course is an oral application, granted immediately with a smile.  This document isn’t really a motion, but a press release, an explanation of the decision for the benefit of others. 

The big question is whether this prosecutorial fiasco teaches any lessons from which we can draw conclusions about our legal system.  Each of us will take from this case whatever supports our religion, our desire to find support for our preconceived notions of the system.  There’s enough in this case to satisfy every perspective, and enough to allow us to argue that no other perspective could possibly be correct.

Rape victims will hate New York County District Attorney Cy Vance for refusing to believe Diallo and prosecuting this heinous rapist.  The wrongfully convicted will applaud the result, but harbor deep resentment that they, lacking the wealth and prominence of a DSK, didn’t receive anything close to similar scrutiny.

Those who believe that the wealthy receive a better brand of “justice” than the rest of us will use this as proof of their proposition, though they forget that had it not been DSK, the defendant would have been given substantially lower bail in the first place, and likely not have been arrested before his plane took off.  They also forget that the wealthy and prominent are as likely to be treated more harshly as they are more leniently. But it’s certainly true that they are not treated the same.

Law and order supporters will rationalize how difficult the job of prosecutor is, and how they are caught between a countervailing forces outside their control, having to make a choice between bad and worse decisions.  Sometimes this is true, though let’s not ignore that they, at least, have a choice, which can’t be said of the defendant.

And then there are defense lawyers, like me, who will see this as another example of a horribly imperfect system, one upon which lives are at stake, that just happened to work out well this time for an array of reasons
that are unlikely to happen in our cases and will change nothing for the defendant arrested tomorrow.

A while back,  Mark Bennett ripped to shreds the “suggestion” by the United States Department of Education’s  Office of Civil Rights initiative to undermine all those nasty rights and procedures that interfered with achieving the desired outcome in determining claims rape and sexual assault cases at Stanford University.

In a Wall Street Journal editorial, Stanford’s Peter Berkowitz railed against the presumption of male guilt again.

At the cost of losing federal funding—on which all major institutions of higher education have grown dependent—colleges and universities are obliged under Title IX of the Civil Rights Act (which prohibits discrimination on the basis of sex) to thoroughly investigate all allegations of sexual harassment and sexual assault on campus, including the felony of rape.

OCR’s new interpretation of Title IX “strongly discourages” universities from permitting the accused “to question or cross-examine the accuser” during the hearing. In addition, if universities provide an appeals process, it must be available to both parties—which subjects the accused to double jeopardy.

Most egregiously, OCR requires universities to render judgment using “a preponderance of the evidence” standard.

One might think this effort to facilitate the “correct” outcome, by eviscerating all those nasty things that stand in the way of guilt, would worry the Academy, or at least those engaged to teach law.  Not necessarily so.

At PrawfsBlawg, Rick Hills takes up arms to explain why universities don’t need no stinkin’ rights when it comes to allegations of rape.

Peter styles the OCR’s guidance document as an “illiberal” attack on due process driven by the “dogmatism” of “postmodernists, radical feminists and critical legal studies scholars” who are “institutionalizing a presumption of guilt in sexual assault cases.”

According to Peter, these recommendations are rooted in Feminist orthodoxy that “men are controlling, angry and deceitful” and that “women neither lie nor make errors in alleging that they have been sexually assaulted.”

This sort of ad hominem posturing is exactly the sort of thing that makes contemporary politics so dreary. It causes even the best of us to ignore our deep principles as soon as our opponents embrace them, just to score points against people we generally dislike.

Smart move by Hills, given that the only thing on campus that trumps reason is the fear of being called a misogynist.  And indeed, nobody wants to be “dreary,” even if the description, though harsh, seems entirely accurate.  Rick then questions Peter’s motives:

Frankly, neither I nor Peter nor anyone else who has not spent a lot of time in university administration can have any worthwhile opinion about how much process is properly “due” in these sorts of university hearings on campus rape. As a conservative guy with a bit of a law-and-order streak and a daughter in college, I am not sure that Peter’s call for more process in these hearings is a great idea: Maybe it is more important to assure a sense of security in a close-knit community than to insure the protection of the innocent.

Really, who cares about innocence when there is a sense of security to consider?  Not the TSA. Not the OCR. Not Hills.  On a more substantive note, Hills argues that the lack of basic rights is nothing new.

But Peter cannot be serious that all of the rights appropriate for a criminal case (where the stakes are loss of life or personal liberty) ought to be imported into an administrative hearing (where the stakes are suspension or expulsion from a particular educational institution).

Hills provides a litany of matters, from public housing to immigration, where process falls a bit shy of due.  Of course, the alternative reaction is that these other, collateral civil penalties, ought to be afforded greater due process, a higher standard of proof.  Rather than bring university rape cases down to their level, they ought to raised to the higher standard? 

But then, the argument ignores an even more critical point:  If reduced standards and presumption of guilt are appropriate in an academic environment, why then does this only apply to rape and sexual assault?  Is Hills arguing that beating the crap out of somebody because you hate blacks or gays is fine with him?  OR maybe he’s good with selling drugs on campus, or stealing laptops in the library?

And what exactly is the innocent male student to say when asked why Stanford kicked him out on his butt based on rape allegation for which there was scant evidence but he was presumed guilty?  Nothing like being saddled by your college as a rapist for life for the sake of not offending feminist orthodoxy. 

But Hill’s isn’t an apologist for the Office of Civil Rights.  He contends that Berkowitz missed the really important flaw of the letter.

Take Peter’s denunciation of the OCR’s proposal, couched as a call for more protection for the accused in university “campus rape” hearings. He focuses entirely on the OCR’s motives — all that male-hating feminism — but he says nothing substantial about the actual merits of the OCR’s process. Meanwhile he ignores the one genuine flaw in OCR’s proposal that is unrelated to the alleged feminist origins of the proposal — namely, that the policy is simply too centralized.

In other words, rather than the federal government telling universities across the board what to do, Hills’ beef is that it’s should be left to each university to eviscerate rights on its own, and this is another power-grabbing federalist scheme to ram otherwise good ideas down academia’s throat.

While concern for the accused may no longer carry much sway in academia, at least we can take comfort in their resort to anti-federalist ideology in the name of imposing politically correct outcomes, not because the government tells them to, but because they want to themselves.  Small comfort.

The lemonade wars have been going on for a while now, with  Radley Balko being a critical aggregator when there were no puppycides to confront.  The “wars” involve the shuttering of the iconic children’s lemonade stands by police and government agents for failure to comply with local ordinances. 

My contrast with puppycides isn’t accidental or gratuitous; it’s offered for context.  The needless killing of dogs by police in the course of performing other duties, sometimes nothing more than a simple inquiry or mistaken address, is jarringly, shockingly horrible.  Yet not so horrible as the killing of a person. The closing of lemonade stands falls further down the horrible scale that the murder of happy, playful puppies.

Yesterday was Lemonade Freedom Day.  Sure hope you didn’t miss it, since many don’t follow David Fernandes’ blog, Selling Lemonade is Not a Crime.  Note that the title is very similar to  Carlos Miller’s Photography is Not a Crime,  While photogs have been frequently arrested, beaten or prosecuted, no lemonade sellers have suffered the same fate, except for  three adults who set up a stand on the Mall in Washington in order to get themselves arrested. They succeeded in their quest only to complain about it.

An editorial in the  Press Democrat tries to lay out the political agendas.

On Saturday, lovers of freedom — in stark contrast to those liberal baddies who want to put a full nanny-state into place — are being encouraged by Robert Fernandes to set up or patronize a lemonade stand in solidarity with the countless youngsters across the country who have had their little businesses crushed by the bureaucrats of their local governments.

Bloggers and tweeters who romanticize the lemonade stand as a symbol of American entrepreneurism have taken up Fernandes’ cause and see Lemonade Freedom Day as an opportunity to raise a defiant glass to American Dream-killing, big-government regulators who demand that community residents and businesses — gasp! — comply with local laws.

The evil bureaucrats couldn’t possibly have good reasons for shutting down a lemonade stand, could they?

Is it fair to uphold legal contracts with vendors or merely heartless to bust innocent young entrepreneurs?

Scroll through lists of kid food-stand closures and you’ll find that many of them cite health codes that don’t allow food to be prepared in areas where there is no on-site hand-washing or that require proof that safety precautions were taken during food preparation.

While you might be perfectly willing to take your chances as a consumer of home-prepared snacks — even most public schools no longer allow homemade, non-pre-packaged food to be distributed to students on special occasions such as birthdays — all it takes is one outbreak of food poisoning to result in a lawsuit against a village or town for not properly ensuring that health codes were enforced.

If this sounds stupid to you, don’t blame long-standing community ordinances. Blame our litigation-crazed society. We live in a country whose courts are brimming with lawsuits over setbacks that years ago would have just been chalked up to the mishaps of a life well lived.

De minimis non curat lex 

Jason Baldwin, Damien Echols and Jessie Misskelley Jr. better known as the West Memphis Three, breath free air today.  Hopefully, they will breath free air for the rest of their lives.  After 18 years in prison for the 1993 murders of  Steven Branch, Christopher Byers and Michael Moore, a deal was cut that allowed them to walk out of prison (and for Echols, off death row).

The defendants took an Alford Plea to the murders with an agreed upon sentence of, in essence, time served plus a ten year suspended imposition of sentence.  If they violate the terms of the SIS, they face 21 years in prison. 

Personal injury lawyers are fond of saying that a resolution with which no one is happy is a good settlement.  The reason for the defendants copping out is easily understood; they’ve been in prison for 18 years and by doing so, they go home.  It’s the criminal justice system at its most coercive.  But the prosecutor, Scott Ellington, faces stiffer opposition.  At the Arkansas Blog, he explains:

Some are happy, some are angry, and others are perplexed. Such is the case at the conclusion of every trial. This one is no different.

*  *  *

In light of these circumstances I decided to entertain plea offers that were being proposed by the defense. I NEVER considered ANY arrangement that would negate the verdicts of those two juries. Guilt or Innocence was NEVER ON THE TABLE.

Today’s proceeding allows the defendants the freedom of speech to SAY they are innocent, but the FACT is, they just plead GUILTY. I strongly believe that the interests of justice have been served today.

Of particular note is Ellington’s use of words in all capital letters in his statement.  Usually a sign of mental instability, it’s also used when needed to create emphasis for those who otherwise find it difficult to comprehend the meaning of words.  Ellington, in other words, is constrained to sell his deal to his constituents, who hear only about the West Memphis Three walking away while there are dead bodies of children demanding retribution.

This is an ugly, horrible deal all around.  The problem is that it highlights the most unacceptable failing of the legal system by splitting the baby.  While the responsibility for a herniated disc may reasonably be shared, the question of whether the West Memphis Three are responsible for the murders of three children cannot be so easily divvied up.  Either the three defendants, whether together or separately, committed the crime of they didn’t.

Sure, they entered an Alford plea, conceding that there was sufficient evidence to produce a conviction while denying that they did, in fact, commit the crime.  They are, as Ellington says, guilty.  They did not, however, admit guilt.

Ellington rationalizes his agreement to the release based upon the 18 years already served:

As part of the plea and sentence negotiation the defendants were sentenced to a period of 18 years with credit for time served. Those sentences will be followed by 10 years SIS or Suspended Imposition of Sentence.

These defendants have spent roughly half of their lives in prison. I pray that during this time they have been rehabilitated.

Whether 18 years is sufficient if they committed the murders is something that can be debated.  Whether it sufficient for the murderers of children to be rehabilitated is also something worthy of discussion.  But these aren’t the subjects of debate. Rather, they’re the subject of religion as unwittingly implied by Ellington’s statement, as one either believes them guilty or innocent, and neither believes that this outcome is adequate to vindicate the truth.

But the real message of this deal is that it doesn’t bear upon the forces of truth and justice, as so many feel the criminal justice system should.  Whether killers have just been unleashed or innocent men have finally been freed, our characterizations are little more than cocktail party discussion to amuse ourselves.  What’s real is that three human beings who have been in prison for 18 years have been forced to make a decision about their lives, perhaps to compromise some greater truth or to get away with murder, but to decide nonetheless.  And they did. And they pleaded guilty to murder. And they went home.

The deal sucks.  No one is better for what happened here, no matter which side you believe to be correct.  The deal sucks because any one of the three could be picked up for something or nothing, and still face 21 years in prison, perhaps for a crime they didn’t commit.  The deal sucks because it leaves three murdered children without a real answer.  The deal sucks because the defendants were coerced into taking it, there being no option of spending more years in prison in the hope that they will beat the case at the next trial.

But the deal has been struck, performed and the parties have honored their obligations.  The ambiguity it leaves the rest of us means nothing.  We don’t get a vote, and we will never know the “truth” no matter how strongly we believe we do.

I only hope the deal was the right one, for everyone involved. Still, there is no doubt that the deal sucks.

There’s far more really bad legal information floating about social media than anyone can address.
It comes in torrents, and the wide-eyed but clueless aren’t in a position to parse the good from the bad.  But some twits from my little buddy Adrian Dayton crossed the line.

And from there it gets worse.

Good promotion for the Twitter King?  Perhaps, but for a kid who went to law school, this is dangerously bad stuff, no matter how hard he tries to create a niche for himself as the go-to lawyer twit.  Much as I like Adrian for his refusal to sit on the couch all day eating Cheetos and instead striking out on his own to make something of his life, even if it is complete nonsense and he’s had to stretch the truth a bit at every turn, there is a line that cannot be crossed.  Adrian crossed it.

Like it or not, Adrian is a member of the New York bar, admitted to practice law regardless of his choice to become a twitter expert rather than a lawyer.  That’s fine, and perhaps even better than the majority of people with no cognizable skillset who have chosen to call themselves legal marketers. Indeed, this could explain why Adrian, with a few months of doc review under his belt, is so admired in the legal marketing world.

But being a lawyer carries certain responsibilities, even if you’re a god to the intellectually infirm.  It means that you can’t do something that makes people stupider about the law than they were before, no matter how well it promotes an agenda.  Adrian’s twits, sadly, do exactly that.

At the moment, Adrian has a little more than 41,000 twitter followers.  While Bradley Shear attributes this to social media credential fraud, that’s another issue.  But no lawyer is entitled to push an agenda that puts whatever portion of those followers are actual people at risk.  Not even Adrian, and not even the sort of people who would follow him.

Shouting out to your tweeps is not a viable means of finding a lawyer.  Sure, you will no doubt find lawyers. Plenty of them. Tons perhaps, because there are plenty of lawyers shilling themselves on twitter.  Like this guy. 

On the other hand, asking 41,000 of your dearest friends for a recommendation, because you know them so well and deeply trust their judgment when it comes to life or death decisions, is entirely different, right? 

This is complete and total idiocy.  You do not find a lawyer by closing your eyes as tight as you can the pointing at a name in the phone book.  You do not find a lawyer by throwing a dart at a list of lawyers. You do not find a lawyer by asking the internet if anybody (and it could be anybody, since nobody knows that you’re a dog on the internet) knows a lawyer in San Diego.

And you especially don’t do this if you happen to have a license to practice law.

It’s one thing for non-lawyers to indulge in the myths and misconceptions that abound when it comes to the law. They aren’t expected to know better.  But that excuse doesn’t fly when it’s a lawyer promoting ignorance.  There’s no comfort to be found in the ordinary excuses, that other people do it, logical fallacies or pecuniary motive.  Even when one hitches his wagon to something as vacuous as being a twitter expert, a lawyer is still obliged to honor his oath and comport himself in accordance with the code of professional responsibility. 

There is no specific ethical consideration that demands the lawyers not do something stupid.  If there was, we would certainly have no excess of lawyers running around. But there’s a limit to acceptable stupidity, and that limit is exceeded by the affirmative promotion of something that any lawyer should know to be fundamentally dangerous to the public.

Adrian, you went over the line.

And before any of Adrian’s fan club or the marketing cheerleaders rush to Adrian’s defense, know that I have taken a benign position toward Adrian’s career choice.  If some firm of lawyers thinks it’s in their best interest to pay Adrian to teach them how to twit, that’s their choice.  I’m a capitalist, and have no problem with Adrian trying to make a living off the backs of the lazy and foolish.  Indeed, there’s a certain zen to the whole idea.

But there’s a line that lawyers cannot exceed, even if they’re barely lawyers and make a living off twitter.  When that line is crossed, there’s a problem that cannot be ignored. No lawyer is entitled to cross the line of acceptable stupid. Not even on twitter.

Update: Soon after posting, I received this twit from Adrian :