Once again,  Mark Herrmann offers a reason for the occasional visit to Above the Law, in contrast to  its other columnists who plumb the depths of puddles.  In his Inside Straight column, Mark raises one of the most common whine of lawyers, the lack of appreciation of their exceptionalism.

One of the also-rans wrote to complain: “I’m terribly disappointed by the result of your RFP process. My firm is exceptionally talented in this area. We do precisely this same work for many other clients, and those other clients are delighted with our work. We indicated a willingness to be flexible on fees. I just don’t understand why we didn’t win this work.”

Ha! Observe the delusion of personal exceptionalism!

In my mind, I hear readers saying, “what’s wrong with that? That’s why I would do.”  Glad you revealed yourself.  Now for the explanation.

Look: We invited twelve firms to bid for this work. All twelve could (and did) tell us that their firms are exceptionally talented in this area. All twelve also told us that their firms do precisely this same work for many other clients, and those other clients are delighted with the work. Across the board, all twelve firms were willing to be flexible on fees.

When you speak, you all sound the same. And, so far as I know, you might all be telling the truth. I don’t doubt for a second that many of the finest firms in the world do good work and have satisfied clients. So the things that you insist set you apart — you say that you do good work and that your clients like you — don’t set you apart at all. At best, they make you one of the pack, which gives you a one in twelve chance of winning the RFP. This time, you lost.

Yes, your branding guru told you to write on your website that you’re “experience, aggressive and caring.”  And maybe it’s even true, at least a little bit.  But the guru said the same thing to the other 27 lawyers who paid for his advice.  What? You thought you were the only lawyer who strung three words together?

There’s a reason why sleazy lawyers proclaim themselves the best thing since sliced bread on the internet, because they know that otherwise they’re just part of the pack.  Their hopes of wealth and success depend on finding someone stupid enough to believe them, and, sadly, there are people on the internet who are indeed that stupid.

But for the lawyers who believe their press releases, Mark’s point is critical.  So you’re a great lawyer?  Whoopdy do.  So are others. You are not the only one who can claim happy clients and successful outcomes, though your unhappy clients and unsuccessful outcomes are somehow easily forgotten.  The point is that it doesn’t make you special.

In anticipation of someone asking the obvious and simplistic question, “so what do I do about it,” the answer is grow up, learn to take it in stride and conduct yourself with dignity.  Whining about being the loser isn’t going to impress anyone.  What it does is tell others that you aren’t nearly as brilliant as you think, that you don’t understand that the things you consider exceptional are in fact banal and ordinary.  You may well be a fine lawyer, but you’re hardly exceptional.

But there is something you can do, even if you’re not exceptional.  You can work your hardest for every client. You can conduct yourself with dignity and integrity. You can be proud of the effort you’ve given to every case, knowing that you have fulfilled your duty to zealously represent each client.  Still, you won’t get every case and may not become a household name.  You won’t be the only lawyer who works hard and cares about his clients, no matter what you do. 

There may be a way to distinguish yourself, but it’s not by saying that you’re distinguishable. Next time, try something else.

How about distinguishing yourself by being honorable and competent?  No, it’s not a panacea and it may not get you the gig, but at least you will be able to sleep at night.  And you never know, others may come to appreciate you in this sea of puffery and deception.  Maybe it will distinguish you.  It certainly won’t hurt you any.

Steven Demink was a 41-year-old former car salesman in Michigan, who decided that he could have loads more fun pretending to be a psychologist on the internet.  Though warped in itself, that’s nothing compared to the advice he gave others.  From MLive.com :

An ex-car salesman from Michigan who spent hours upon hours at his home computer cajoling and even berating seven mothers to engage in sex acts with their young children was ordered by a federal judge to spend the rest of his life in prison.

But the judge, a U.S. Attorney, an aunt of two of the victims and even the defendant acknowledged Wednesday in U.S. District Court in Detroit that many lives already have been devastated by Steven Demink’s actions.

“You are like a pebble tossed into a pond; the effects of your actions will not only ripple into the lives of my sister and her two children, but their children as well,” said the sister of a mother charged in Indiana with molestation. “When I think of the sheer horror, fear and confusion they felt in their home that day, it makes me sick.”

Yes, that’s right.  A faux shrink on the internet told mothers to engage in sex acts with their children.  And they did.  Every time we think we’ve found the nadir of stupidity, gullibility and diseased minds, something new comes along to blow our socks off.

Time to make some obvious points.  Just because someone on the internet says they’re a professional does not mean it’s true.  Forget the pseudonymous, who may well believe that by calling himself “Joe the Lawyer” somehow means that the rest of the virtual world is compelled to bow to his expertise.  How many times must it be repeated that On the internet, nobody knows you’re a dog? 

Just because somebody on the internet tells you to do something wrong, disgusting, sick or evil, doesn’t mean you have to do it.  Pro Tip: They can’t reach through their computer and make you.  That you comply with their directions isn’t because they forced you to do it, but because you chose to do it.  No one on the internet can make you do anything. Ever.

No one on the internet can “berate” you without your permission.  Another Pro Tip: If you hit the little “X” in the corner, the internet goes away.  Don’t want to have some dog on the internet say mean things to you?  Click on the “X” and make them disappear.

And finally, mothers, engaging in sex acts with your children is sick.  Really sick.  While the dog on the internet who tells you to do such things is sick, so are you for doing it.  Get help, as you are deeply, seriously sick.

As for Demink, he offered a curious self-assessment at sentence:

“I’m not unsalvageable,” the 41-year-old Demink said. “I still think I can be a productive member of society without the court worried about me re-offending.

“I did not think of what consequences my actions were going to produce. I hope they can find it in their hearts one day to forgive me for what I have done. I need help and I want help.”

[Judge Gerald] Rosen was not convinced.

Nor am I.  Not that Demink is unsalvageable, though whatever diseased impulses drove him to engage in a year long effort to fake being a psychologist on the internet, get women to engage in such behavior and have them send him naked photos of their children.  What it will take to salvage this mutt is hard to say, but he’s hardly the worst around.

What I don’t buy is that he didn’t think of the consequences of his actions. Indeed, I bet that’s all he thought about, and that’s why he did this.  What he meant to say was that he thought more of his sexual gratification than he did of the harm he might cause, but this is at the heart of many crimes, putting self-interest above everything else.  In this regard, there’s nothing special about Demink.  He just did it in a particularly bizarre and disgusting way.

What makes this offense even more troubling, however, is that Demink could not have accomplished any harm alone.  No force was, or could have been, used to compel any mother to do anything.  Most of the women he tried to manipulate blew him off or let him know he was warped, and went about their lives without engaging in sex acts with their children. 

The ones who complied with Demink’s commands did so of their own volition.  Weak minds?  Low self-esteem?  Vulnerable?  There are entire industries dedicated to such people, selling everything from lipstick to brutally painful shoes that no right-thinking woman would wear.  That’s right, Jimmy Choo, you monster.

But the harm Demink caused wasn’t done by him alone.  Yet the sentence imposed, life in prison, puts him right up there with murderers.  Contrary to popular belief, that every crime above jaywalking demands a life sentence, this is both bad policy as well as a seriously disproportionate sentence. 

While it’s understandable that the disgust factor of his conduct could push a judge to treat him harshly, as well as discount his plea of salvageability, a critical aspect of sentencing someone who engages in such sick conduct relating to children is not to push the envelope so far as to make it viable that they personally engage in physical harm to children.  In other words, if he’s going to prison for life anyway, why not snatch a kid on the streets and rape him?  Why not murder the child so he won’t point the finger?  Why not?  If the defendant is sick to begin with, and calculating in his conduct, the potential for this is very real, and it’s something the sentence should be designed to discourage rather than encourage.

More to the point, there’s no indication that Demink ever laid a hand on a child, or anyone else for that matter.  As horrible as his conduct was, it cannot be equated with those who do engage in physical harm to others, whether children or adult.  Sure it’s sick, but that alone isn’t sufficient to explain a life sentence.

This case provides a wealth of lessons, both for the system as well as life on the internet. None of them good.  For crying out loud, people, it’s just a box with lights.  Do not believe it when it tells you to do something stupid or sick.  Just turn it off and walk away.

My old buddy and former NYSACDL president, Dan Arshack, will be interviewing former Ohio AG Jim Petro on his radio show on  WGXC, 90.7 FM and streamed throughout the rest of the civilized world right on your computer, this Sunday. August 7th, at 11:00 a.m.

Petro was considered a decent sort as Attorney General of Ohio, but like most who hold such positions, believed that he stood with the angels.  Apparently, he learned otherwise, kicking and screaming as Jeff Gamso explained, and saw the light. 

Serving as Ohio Attorney General, Petro was confronted with the nightmare of a family man convicted of murder and rape and sentenced to life in prison even when DNA proved his innocence.

While this is unlikely to cause any gasps on the criminal defense side of the courtroom, that a former AG came to the realization that the system just might be wrong is surprising.  For obvious but sad reasons, Petro’s advocacy of systemic changes that would improve the process and potentially save an innocent person from conviction may carry some greater weight than others.

In any event, tune in to Dan’s show and hear what Jim Petro has to say.  I believe they take some calls as well, so you may have an opportunity to ask Jim Petro pointed questions, particularly important given that Ohio seems bent on giving Texas a run for its money in putting people to death.  If it interferes with your tee time, they archive the shows and you can listen to it later.

It should be an interesting time.  Check it out.

There are many things a student can learn in law school.  The newest thing is to be a witless coward, cave in when there’s not a reason in the world and buy off one’s problems.  Welcome to St. Thomas School of Law, where  Deborah Hackerson will be your guide.

they seized it.

What student could possibly go to a school that would pay off Rakofsky rather than tell him to go shit in his hat?  A chain is only as strong as its weakest link, and nothing could be weaker than to succumb to paying off Joseph Rakofsky.

At some point, someone at this school is going to be charged with teaching ethics.  How does a school so utterly lacking in principle do this?  It can’t, but I guess no one thought of that when it approved of its insurance carrier buying its way out.

I’m absolutely disgusted that this is how anyone, but especially a law school and lawprof, would behave. Cowards? Gutless?  Morons?  Pray they write something mean about you, because you know they’ll be happy to fork over five grand for nothing.

Update:  In contrast to my rather clear disdain for acquiescing to this absurd bit of childish extortion, some on twitter raised the question of whether this settlement might have been a decision by the law school’s insurance carrier to throw $5 grand Rakofsky’s way as nuisance value, to rid themselves of this minor annoyance.  Not that this isn’t exactly what this kid might have wanted, which is precisely why this isn’t a wise idea.  But insurance companies think in terms of business decisions, not principles.

The point is well taken to the extent that the carrier might have been willing to toss money into the toilet, despite the complete absence of merit or jurisdiction and any potential for loss, thinking that it would cost that much to defend anyway and now it’s off the books.  But raising this possibility is troubling in a few ways.

But to change the analysis, a confluence of two things must have occurred:

1.  The carrier had complete, unfettered determination without St. Thomas Law School’s approval, or contrary to its disapproval.

2.  The determination of the carrier to settle out from under St. Thomas ws done without its knowledge, such that even if the carrier had the right to settle despite the law schools disapproval, it would have exercised that right in the face of the insured’s insistence that it not settle.

Is it possible that these two things occurred?  Sure, but it’s extremely unlikely. It’s also possible that the decision-maker at St. Thomas School of Law is bipolar and agreed to settle in a state of manic delusion, but that’s not likely either.  And let’s not even get into the space alien possibilities.  The point is, when you hear the sound of hoofbeats, don’t assume it’s a zebra.

 And even if they did occur, there was nothing to stop St. Thomas Law School or Debby Hackerson from asserting, once this became known, that this settlement was contrary to their wishes, their belief, their principles.  No such statement has been made.

All of this makes me wonder why some would make the effort to “explain” (what I would better characterize as “excuse”) this act of stupidityu and cowardice.  Some innate human desire to be contrarian, perhaps?  Some desire to show how smart you are, a rather typical affect of lawyers?  No matter, as Occams Razor teaches us that the simplest explanation that accounts for all known facts is usually the correct one.  There are always outlier arguments, which provide a convenient excuse.

If my assessment of St. Thomas School of Law is wrong, then I invite them to say that they disavow this settlement and despise that it made them appear to sacrifice principle to buy their way out of this completely frivolous lawsuit.

If not, I side with  Mark Bennett who wrote of this monumental collapse of judgment and spine:

From some individual non-lawyer blogger, afraid of going to court, that might be acceptable, but from a law school it is not. Aspiring lawyers, unless they aspire to learn the art of surrender, should avoid St. Thomas; employers, unless they are in the surrender business (like James J. Toomey of New York, who made the deal for these defendants?) will avoid St. Thomas grads.

The CIA  destroyed 92 videotapes depicting the torture of two captives, Abu Zubaydah and Abd Al-Rahim Al-Nashiri, despite a court order requiring the production of the videos. This was the subject of  an action brought by the ACLU under the Freedom of Information Act “related to the detention and treatment of prisoners in U.S. custody abroad.”

We argued that the CIA showed complete disdain for the court and the rule of law itself when it flouted several court orders to produce the videotapes and instead destroyed them. To provide some background, in September 2004, the court first ordered the CIA to produce or identify all records pertaining to the treatment of detainees in its custody, which would have included at least 92 videotapes documenting the harsh interrogation of the two prisoners. Despite the orders, the CIA never produced the tapes or even acknowledged their existence. Unbeknownst to the public, the tapes were destroyed in November 2005, a year after the court’s first order, although the destruction was not publicly revealed until 2007.

After a lively round of arguments, the judge sanctioned the CIA for its attempt to evade the law and will require the agency to pay our legal fees for costs incurred in bringing the misconduct to light. The judge also asked the CIA to publish its forthcoming document-destruction policies, which are being considered in response to our litigation to prevent this type of destruction from occurring again. Finally, the judge commented that the ACLU had played an “extraordinary” role in revealing to the public information about the abuse of detainees in U.S. custody. However, in his ruling from the bench, the judge failed to hold the CIA in contempt of court, leaving unaddressed our larger concerns about accountability.

Would it be considered naive to suggest a victory of sorts for the judge to “ask” the Central Intelligence Agency to publish its document-destruction policies, given that regardless of what policies it makes, it remains above reproach for doing whatever it chooses to do?  Apparently, some people have far more faith in the institutions of this fine nation than others.

So the CIA tortured detainees held abroad.  The CIA destroyed videos of the torture after a United States District Judge ordered them to turn them over.  The CIA denied the former and concealed the latter.  And the remedy is that they should publish their policy about destroying documents, even if there is no penalty for ignoring it and only if they want to.

And they have to pay the ACLU’s legal fees out of their taxpayer funded  budget.  Harsh, right?

The action brought by the ACLU is one of the rare opportunities presented to put an agency of the government under scrutiny that otherwise defies scrutiny of any sort.  The argument on the one side is that the CIA cannot, and should not, be subject to public scrutiny if it’s going to do the vital job we need of it.  It’s all about spying, and spying is one of those things that is best left undercover.

But then, the romance and intrigue of James Bond movies doesn’t fit well the the routine torture of guys with arabic names in foreign prisons.  The willingness to allow the CIA do so as it pleases, as it must according to those who have faith in its ability to protect us from foreign enemies, is dependant on our belief that it comports with our expectations that it can restrain itself from acting in ways that would outrage Americans.

Some supporters might be willing to accept torture as a necessity these days.  Some would explain that those of us who are less enthusiastic about torture don’t get it, that it’s a hard, harsh world out there, populated by crazies who want to end our lives.  The CIA only does what it has to do to keep us safe, and it will continue to do so even if whiners and hang-wringers think they shouldn’t.

Regardless of where you fit along the spectrum of supporters and detractors, Judge Hellerstein’s allowance of an agency of government to not merely disregard his order, but to act in direct defiance of it, presents a deeper dilemma.  Perhaps the people of the United States, and even the courts, are constrained to give our spooks greater latitude in the performance of their duties than we would give anyone else.  Anyone.  Maybe this is a real give-back for the nasty, ugly, harsh but necessary job they do.

But once they are allowed to directly, overtly, flagrantly defy the order of the court, then they are without constraint of any sort.  No one can stop them.  No one can control them.  No one can say, “enough.”

Leon Panetta may be a wonderful human being, deeply concerned for the welfare of the citizens of the United States of America.  But the memo just came across his desk that as Director of the CIA, he answers to no one.  In a democracy, no government official should ever be in a position where he answers to no one.

Eventually, another opportunity will come along to subject the CIA to the scrutiny of our legal system.  Whoever happens to be the judge to whom the case gets wheeled, let this be considered in deciding whether it’s acceptable to have an agency of our government tell the court that its impotent.  No matter how much the judge loves the CIA and appreciates what it has accomplished for the nation, this cannot be allowed or tolerated. 

But it will be awfully hard to tell the CIA that the next time, it has to comply because of this monumentally weak decision.  And when the CIA tells the court to go fly a kite next time, what exactly is the court going to do about it?

“We your committee on Legal Education beg leave to submit the following report:

We believe that no part of our machinery for administering justice in Texas is more urgently in need of immediate overhauling than our system of admitting new members to the bar. Under the existing laws and the rulings of our Supreme Court, the state is being flooded with young lawyers from every state in the union, many of them with little preparation for the duties that devolve upon them as the guardians of the life, the liberty, and the property of the citizen…

Before going into the details of the situation that confronts us, your committee believes it wise to lay down a few general principles and to make some observations of a general character …

There are too many lawyers in this country. That this is true is evident to anyone at all familiar with the facts. In proportion to population, there are more than twice as many lawyers in the United States as in Great Britain, and nearly five times as many as in either France, Germany or Holland. If all our lawyers were busy and rendering a useful service, there would be little reason to complain, but many of them are not busy. On the contrary, many of them are on the margin of starvation and are constantly tempted to foment litigation, to indulge in legal blackmail and to engage in other reprehensible and illegal practices. It is not merely a waste of man power. It is a prolific source of injustice and social corruption.

“Such are the standards, or the lack of standards, for admission to the bar of Texas. Our bar, already overcrowded, is held out as an asylum for the lame, and the halt, and the blind from the law schools of this country. And they are coming. ”

Not me.  Nuh uh. Bar Section, Resolution Adopted By Dallas Bar Association, 10 TEX. L. REV. 326 (1932).

  “At its annual meeting in 1933 the Association of American Law Schools considered at length the economic condition of the Bar . . .  Among lawyers there was some difference of opinion about the present situation of the Bar. One man, himself successful, remarked that most lawyers could make a living if they were not lazy, and another that there were not too many lawyers, not enough, in fact, if conditions became better. But the general opinion indicated anxiety: lawyers were having a hard time—there was little work for the young lawyer—there were too many lawyers—a man couldn’t get started unless his forebears had been lawyers—banks and trust companies were taking away the business—and even collection agencies obtained powers of attorney to represent clients in the small claims court.  . . .   Many remedies were suggested by the lawyers interviewed. Real estate men and banks should not do so much legal work. Possibly the lawyer should be paid a certain amount by the state and do minimum work for people at large. Average earnings should be published, so the public could see they are not large. The law should be changed so that lawyers must certify that income figures are taken from records. A law might be passed that no legal instrument is legal unless a private lawyer attaches his signature. There is too much talk about crooked lawyers. It is all right to go after the crooks, but to talk and do nothing gives the public the impression that all lawyers are crooks. The Bar should keep its skirts  clean, but does not. It should disbar those that need it, instead of letting them degrade the entire Bar. And finally a feeling that the public regarded lawyers as unreliable, and lumped the good with the bad, led many to be in favor of advertising, traditionally so at variance with the profession’s ethics.

The lawyers’ earnings are low, and there is a great deal of legal work undone which might become what the economists call ‘effective demand’ under other conditions. “

Not this either. Charles E. Clark & Emma Corstvet, The Lawyer and the Public: An A.A.L.S. Survey, 47 YALE L.J. 1272 (1938).

“Students trained under the Langdell system are like future horticulturists confining their studies to cut flowers, like architects who study pictures of buildings and nothing else. They resemble prospective dog breeders who never see anything but stuffed dogs. And it is beginning to be suspected that there is some correlation between that kind of stuffed-dog study and the over–production of stuffed shirts in the legal profession  …

[T]he acceptance of the Langdell-Harvard method meant that the university law school teachers, with few exceptions, were those who had never practiced or practiced for only a brief interval. It is probably true that a majority of the teachers in some of our university law schools have never met or advised a client, consulted with witnesses, negotiated a settlement, drafted a complicated contract, lease or mortgage, tried a case or assisted in the trial of a case or even written a brief or argued a case in an upper court.”

Nor this. Jerome Frank, Why Not a Clinical Lawyer-School?, 81 U. Pa. L. Rev. 907, 909 (1932).

“The United States is the only country of the Western world where a man can be admitted to the bar without having had any contact with, or any real knowledge of, the active profession.”

Not even this. Elliott E. Cheatham,  Legal Education – Some Predictions, 26 Tex. L. Rev. 174, 180. (1947).

It’s been going on for a long time, and as the foregoing clearly shows, the arguments haven’t change much.  On the one hand, this shows that the nature of the complaints flows downhill, with each generation claiming the next to be lame, lazy and unprepared, and the profession on the precipice of collapse.

On the other hand, not even the most talented oracle would have predicted that lawyers with a few months experience, disbarred lawyers or pathological self-promoters would have created a cottage industry in teaching hungry lawyers the art of “rainmaking,” branding or internet marketing.

If they looked at the practice of law today, would they recognize it?  If lawyers from the 30s thought the money was inadequate, how would they feel about the earnings potential now?  If the lawyers from before the Second World War were asked whether leaving law school a couple hundred thousand dollars in debt made sense, would they have nonetheless pursued their legal careers?

I’ve piggy-backed on the research of Dave Hoffman at Concurring Opinions, whose point is that the current attacks on the legal academy and the profession are nothing new, and who has backed it up with some strong language.  One additional quote, from Professor Myres McDougal, who taught me jurisprudence and influenced me more than any other law professor:

“Proposals for escape from all of this confusion and inadequacy have, of course, been legion . . . . Lecture versus case; large class versus small class; seminars versus courses; group work versus individual work; specialization versus “well-rounded” training; vocational training versus cultural training; Bills and Notes (substitute any course) in the second year versus Bills and Notes in the third year; prescribed pre-legal training versus eclecticism; three-year curriculum versus four-year curriculum—these and many similar questions have been raised like quills on a startled porcupine.”

{Legal Education and Public Policy: Professional Training in the Public Interest, 52 Yale L. J. 203, 206 (1943).]  At no time during McDougal’s class was there mention of using a  catchy jingle to get business, to employ search engine optimization to get a website on the first page of Google or purchase promotional content extolling your virtues as the greatest twit ever from ghostflawgers. 

Things have changed, perhaps more slowly than anticipated, but where we find ourselves today is pretty far down the slippery slope of the lame, the halt and the blind.  It may be taking longer than anticipated, and the road may have some unforeseen twists, but it’s not at all clear yet that we won’t end up in Texas.

Spend enough time in the trenches and you get to learn how the secret language of law develops.  Older lawyers remember when “use and carry” of a firearm meant that a defendant physically possessed a gun and displayed it during the commission of a drug deal.  Then it meant that there was a gun in the next room that no one knew about.  The words “use and carry” took on a life of their own.

The same could be said of “intended loss” as applied to the federal sentencing guidelines, which grew wings and took flight in the fertile minds of prosecutors.  It was like “chaos theory” as applied to loss, flowing to places that no one ever considered.  The only limitation was the prosecutor’s imagination and the judge’s willingness to get the sentence over.

The 10th Circuit, however, said the unthinkable in United States v. Manatau, a small-time identity theft case where the defendant made a habit of stealing “convenience checks,” those faux checks credit card companies send people who don’t want them, never asked for them and are little more than an invitation for theft.  Manatau, unfortunately, wasn’t very good at it. Not only did he get caught five times before the feds indicted him, but he significantly undervalued the credit limit when he filled in the blanks, and stole far less than he could have.  What a maroon.

That, of course, didn’t stop the government from trying to milk his sentence for all it was worth.  While the actual loss Manatau caused was embarrassingly small, that’s not the end of the discussion.

Seeking to calculate the applicable advisory guidelines sentence, the district court focused on U.S.S.G. § 2B1.1(b)(1). Under that provision, a court must compare the economic loss the defendant “actual[ly]” inflicted on his victims with the loss he “intended to result from the offense” even if it was never realized. See U.S.S.G. § 2B1.1 cmt. n.3(A)(i)-(ii). A court must identify the greater figure, the actual or intended loss, and then proceed to one of the guidelines’ inevitable charts.

What would a sentence be if it didn’t beg for the greater amount? In this case, the difference added between six to 12 months to the sentence, as the actual loss was a piddling $1,840, but the government contended that the “intended” loss was $60,000.

To reach this figure, the government argued (among other things) that the district court should simply tote up the credit limits of the stolen convenience checks. Whether or not Mr. Manatau ever intended to reach those credit limits, the government said, is neither here nor there. It is enough, the government represented, that a loss up to the credit limits was “both possible and potentially contemplated by the defendant’s scheme.”

This might actually be considered a fairly conservative estimate by the government, since they could have just as easily argued that Manatau planned to steal 100 (or maybe 1000) additional convenience checks, and upped the number to $1,000,000.  Once reality no longer serves as a constraint, anything is possible.  Apparently, this very thought occurred to the court as well.

We hold that “intended loss” means a loss the defendant purposely sought to inflict. “Intended loss” does not mean a loss that the defendant merely knew would result from his scheme or a loss he might have possibly and potentially contemplated.

Whether the defendant “knew” is itself a very iffy proposition, as he was apparently a dope at best, and an incredibly small-timer at worst.  But still, the court defines intended as that which he purposely sought to inflict.  As in, “intent” means, wait for it, “intent.”

The Circuit apparently feels just awful about its having defined a word to mean exactly what it says, so it proceeds to justify itself.

This definition is, of course, seriously circular, using the term “intended” to define itself not just once but twice. At the same time, the sentencing commission’s definition offers us no reason to think it wished us to apply anything other than the word’s ordinary meaning. If anything, the commission’s (repeated) use of the word “intended” to define itself suggests that the commission thought the word’s meaning was pretty plain. And in contemporary usage, it is. Something is intended if it is done on purpose — not merely known, foreseen, or just possible or potentially contemplated.

You can almost feel their pain in interpreting a word to mean what it says, a rending of the very fabric of federal criminal statutory construction.  And yet, the court held firm to its conclusion, that intent means intent.

But the guilt must have been too much for the court to bear, as it went on to assure that its firm, clear holding conformed to the requirement that no circuit court of appeals fail to offer love to the government.

[T]he district court should examine what losses Mr. Manatau intended.   Of course, in answering this question the court is free, as we have explained, to make reasonable inferences about the defendant’s mental state from the available facts. In the sentencing context, too, the government need only prove Mr. Manatau’s intent by a preponderance of the evidence, and the court need only make a “reasonable estimate” of the intended loss.

There’s the Court of Appeals we’ve all come to know and love, who giveth with one hand and taketh away with the other.  While the government may not be allowed to create wild and wonderful scenarios of intended loss that encompasses slightly less than the gross domestic product of China, it still need only offer the argument that most closely matches a judge’s fiscal sensibilities to meet its burden.

Though the 10th Circuit may have upset the balance of nature by employing the circular reasoning of words having their actual meaning, it returned the law to equilibrium by reminding us that it’s all just a figment of a reasonable judge’s imagination.  Carry on.

The lawprofs at  Concurring Opinion have been holding an online symposium on Yale lawprof  Jack Balkin’s book, Constitutional Redemption, Political Faith in an Unjust World, described as a liberal’s constitutional credo in contrast to the conservative originalist view. 

Not having read the book, and not needing to for the purpose of what follows, I borrow  Danielle Citron’s description:

Constitutional Redemption envisions the Constitution as a wiki-like project of tinkering and revision in which each “generation has an obligation to flesh out the Constitution’s abstract commitments and build out institutions.”  How do the American people fulfill that obligation in practice?  As Doug [NeJaime] underscored, Jack isn’t necessarily suggesting that lay people read the Constitution’s text and try to convince others to see it their way.  They could, and the written nature of the Constitution gives them the opportunity.  More often though, elites tend to mediate on their behalf, producing narratives that shape how the public understands the constitution and how the courts interpret it.

The point, I believe, is that Balkin’s view of the Constitution’s vitality rests in its abstract nature, subject to evolution in the vision of each generation’s understanding of its application to their problems and world.  Clearly, this isn’t an homage to Justice Scalia.

But then, this post isn’t really about Balkin’s alternative constitutional vision, but rather Dan Solove’s contribution to the symposium.

At its core, Balkin’s constitutional jurisprudence is one founded upon faith — a faith in redemption.  He concludes his book with the following paragraph (SPOILER ALERT):

Faith in the Constitution is really faith in a succession of human beings working through a framework for politics, adding to it as they go, remembering (and misremembering) what previous generations did, and attempting to persuade each other about how to make it work.  To believe in this project is to believe in progress despite human imperfection, and in what Abraham Lincoln called the better angels of our nature.  If we want to believe in the Constitution, we must believe that, flawed as we are, we can create a better world than the one we inherited.  If we want to have faith in the Constitution, we must have faith in ourselves.

And to that I say “amen.”  Although this sounds right descriptively, and I believe it is correct, part of me has lost faith. 

Many of the lawprofs use the word “inspirational” to describe Balkin’s vision, and indeed, there’s a definite religious fervor to their words, the belief that humans, despite our faults, can make this work, and rework.  While Dan clearly knows the catechism, he breaks from the flock.

Why do I feel this way?  Congress is deeply divided and can barely act unless under dire circumstances.  Money and special interests are infecting politics and exercising undue influence.  The size of our country is so large now that I wonder whether our system scales up particularly well.  Districts are Gerrymandered, increasing polarization and radicalization.  Supreme Court confirmation hearings are a joke, where prospective justices must give a nod to the tired old shibboleths of how they are umpires and neutral.  Our legal system is ridiculously inefficient, where the costs of resolving disputes often outstrip the money at stake.  Our criminal justice system resolves 95% of cases by plea bargains, with defendants readily signing away their rights.  I could go on and on.

The rule of law is an essential myth that holds together our judicial system.  But what if we no longer believe in the myth? 

This is a monumentally bold statement from a scholar.  Adherence to the faith that the “elites” in charge of the show are inherently intelligent, fair and of good faith is at the foundation of any constitutional philosophy, Balkin’s included.  We’re a nation run on wondrous platitudes, drilled into the minds of school children and believed by those who want to sleep at night.  I could add to this litany, as I’m sure every reader could as well, but Dan makes his point, that our institutions have deteriorated and no longer fulfill the nation’s aspirations and expectations, whatever they may be.

If people start to believe that judges are not engaged in legitimate exercises of Constitutional interpretation, then the myth of the rule of law begins to erode.  When that myth is gone, when “God is dead” so to speak, can the courts regain legitimacy?   All the rhetoric of neutrality, of calling balls and strikes — even more realistic claims — might not be able to resuscitate the myth of the rule of law.

Many in the public have reached this conclusion.  Many more continue to believe, their faith unshakable until the day they have the misfortune of becoming participants rather than onlookers.  Myths erode when reality sets in.  Perhaps the greatest believers in the myth are the elites themselves, who need to believe that they serve a higher calling because they refuse to see what they do through cynical eyes.  I’ve never met a judge who can’t excuse and explain his decisions to his own satisfaction, comforted by his self-assessment that he’s contributed to a better system no matter what.

The Constitution is incredibly hard to amend, and we’ve twisted it into interpretive pretzels in order to build our current system of government.  But our institutions are in need of a wake-up call.  They need to be refreshed, rethought.  Will that happen?  I don’t know.  I want to have faith that we’ll muddle through and revitalize our system of government.   But I’m no longer so hopeful we will.  The problem is not just caused by We the People — it is also based on how our structure of government has evolved and the way that structure has shaped politics.  We might be able to break free from that structure to reform the system, but I fear we might view the Constitution as too sacred for the more dramatic reforms we need.

Dan challenges the tacit belief that some magic hand will reach down from the sky and fix all the incredibly poor choices and problems that ensued and save us from ourselves.  We were handed a document that provided a roadmap of extraordinarily vitality and we ripped it, little by little, to shreds in order to serve whatever transitory end seemed like a good or necessary idea at the time.  But now, our paper is in tatters and we can’t get the pieces to fit anymore.  And still we pretend that we can use it to get where we’re supposed to be.

Dan has lost faith in the efficacy of the Constitution because of both its structural evolution and the nice men and women entrusted with its execution having usurped its ownership for their own purposes.  He questions whether it really scales as well as we think, as our nation and its political institutions have grown.  He doubts the people entrusted with its faithful execution are worthy of our faith.

From my lawyerly perspective, the myth of the law, enshrined in the platitudes carved into the courthouse lintels, are empty words.  They consist of a rule riddled with exceptions.  They consist of procedures that add to our misery, even when we approve of the end result.  There seems to be a sound rationale for each baby step, but we always seem worse off for having made the trip.

The efficacy of the Constitution depends on our faith that it ultimately prevails over the mess we’ve made of it, regardless of how we play the interpretation game.  One of the most dangerous platitudes, that it may be flawed but is nonetheless the best system man has created, keeps us muddling through in the hope that its true. 

What if we’ve made such a mess of it that it’s no longer true, that we’ve so screwed it up that there’s no hope for the Constitution to be anything more than an old piece of paper under glass that reflects what a great nation we might have been if only we hadn’t blown it?  What if our slavish adherence to the paper, which we’ve dishonored over the centuries, now prevents the best of us from making the changes needed to save its soul and our nation from our carefully crafted morass?

Dan Solove has lost faith in our ability to make the myth real, and challenges whether this sacred document has become a yoke that constrains us from undoing the damage.  He has strayed from the flock because he no longer believes in fairy tales. 

Stories of cops arresting folks for taping them in the performance of their duties have become legend, well documented and frequent subjects of exposure and ridicule.  Even  other cops have had enough of it.  But my view of this silliness has always been from a safe distance, the closest being upstate Rochester, viewed from the safety of my sophisticated Long Island window as New York’s version of hicks.

My world has been shattered by the actions in my own backyard.  Via Newsday :

Suffolk police on Friday arrested a news cameraman in Bohemia who was trying to videotape the aftermath of a police chase, officials said Saturday.
The cameraman, Phil Datz, was charged with misdemeanor obstruction of governmental administration, police said. The department said it is investigating the case.
Datz said he was standing on a public street open to pedestrians and vehicles…

Seriously?  Has this Suffolk County sergeant not been paying attention at all?

There’s nothing to investigate.  There’s nothing to explain.  This can’t happen.  Phil Datz can videotape the police in the performance of their duty, and no cop, not even with 30 years experience, can decide otherwise.  I mean, not lawfully, anyway.

True, you didn’t beat Datz or tase him.  You didn’t pull your weapon and put his life at risk.  But you arrested him because he didn’t obey you?  Did you think nobody would notice?  Did you think that Suffolk County was sufficiently distant from the metropolis that no one would notice your abuse of power?

I can’t help but wonder what good things this 30 year vet might have done during his career as a police officer.  I can’t help but wonder how many people he arrested for contempt of cop.  But what I can’t fathom most of all is that this happened in my own backyard.

I’ve known many local police officers, whether working the job in Suffolk or Nassau County.  I’ve known many who are city cops, all of whom live on Long Island because that’s the natural progression of New York City police officers.  They know that being a cop here is different than in some backwater.  They know they are being watched, and that we’re not inclined to let something like this pass unnoticed.

And I won’t let this pass unnoticed.  Not in my backyard.

Update:  Suffolk County settled the case for $200,000.

There is strong evidence and weak evidence.  And then there’s the jailhouse snitch, without question the worst evidence possible.  Cops and prosecutors know this, but love it anyway. Having concluded someone is guilty, but being unable to find evidence to support their belief, it’s like manna from heaven to the starving.

That it’s bad evidence, the sort most likely to falsely convict an innocent man, can’t shake their faith.  Adding to the unsavory mix is that the jailhouse snitch gives up his fellow prisoner, already inside because he’s a bad man.  Since the target already lives in a cell, and must by definition be a criminal, there’s neither sympathy nor concern about false accusations.  Bad people do bad things, and always more bad things than they will ever pay for.

Yesterday, Gov. Jerry Brown, who always seems to be governor in between the odd other governors of California,  signed a bill that goes a long way to prevent the jailhouse snitch from putting innocent people in prison.  The  LA Times describes it:

The new law requires prosecutors to present forensic evidence or uncompromised testimony that corroborates information provided by in-custody witnesses who claim to have been told or overheard incriminating statements by the defendant.

Dozens of Los Angeles County criminal convictions based on the testimony of jailhouse snitches have been overturned over the last quarter-century because appeals courts found the key witnesses to be  unreliable or self-serving.

The new California law, similar to Texas’ though with more specific corroboration requirements, makes a specific point about a specific problem.  The word of the jailhouse snitch, a person who has every reason to fabricate testimony that will aid him in obtaining release or some other material benefit, and no reason to concern himself with truthfulness or the harm he causes others, presents a clearcut instance of unreliable evidence.  The law is essentially the same as one passed in California in 2008, but vetoed by the interim governator because it made convicting more difficult.   Some stats make the point clearer:

This survey [PDF] from the Center for Wrongful Convictions at Northwestern Law School found that fully 48% of wrongful convictions were brought about by jailhouse testimony. The Innocence Project states that 15% of DNA exonerations were in cases of convictions that featured snitch testimony. Here’s a   Pew Trust report [PDF] on the problems with this kind of testimony.

Yet this just scratches the surface of the problem of low quality testimony.  As everyone knows, the threshold for the admissability of evidence is materiality and relevance.  The next step, most often observed in the breach, is that it be more probative than prejudicial.  It all sounds fine, but it fails to address the quality of the evidence, its reliability.  This is where things get sticky.

The best quality of evidence is an image of the perpetrator of a crime in its commission, with a posse of priests observing it coming in a close second, though the latter happens rarely except with child molestation cases.  The quality of evidence after that descends rapidly.

A peculiar phenomenon happens as the quality of evidence deteriorates.  Evidence that a judge would reject, laugh at, ridicule, when good quality evidence exists, suddenly becomes acceptable, even reliable, when no better quality evidence is available.  Come on, judge. You know exactly what I’m talking about.

It’s often slid in through the side door, rationalized as background evidence, or through the misapplication of Molineaux.  It’s explained as showing “motive” even though motive isn’t an element of the offense, and it can only bear up to scrutiny in terms of relevance by the most gymnastic of rationales.  The same evidence that is called “inconsequential, prone to abuse and of little value in showing anything more than mere coincidence” is suddenly “critical in proving that the defendant, three years before the disappearance of his wife, engaged in an angry exchange demonstrating his proclivity toward violence and animosity toward his wife.”  Same exact evidence.  Completely opposite characterization.

As California takes a giant step toward eliminating the testimony of the jailhouse snitch in an effort to prevent the uncorroborated use of evidence so unreliable, so prone to abuse, let’s not forget that it’s not the only bit of “proof” that tends to degrade the virtue of the system.  The point isn’t that people who are criminals are incapable of telling the truth, but that people who have an incentive to lie and no incentive to be truthful provide evidence that is inherently unreliable.  If it’s unreliable, it doesn’t become more reliable because there isn’t any high quality evidence available. 

From the perspective of the judge, the putative gatekeeper of unreliable evidence, the reason why this phenomenon is permitted is easy.  If the evidence is of low quality, then the defense lawyer will expose it and the jury will reject it, acquitting the defendant and being responsible for the loss to the prosecution.  Far better that the jury take the weight than the judge by refusing to permit the prosecution to make its case and putting the likely criminal back out on the street to pillage.

Except the experience is that both the defense and prosecution know the failing of low quality evidence, and each has well-rehearsed arguments to present to the jury.  The jury, on the other hand, hasn’t got a clue about low quality evidence, as most people use the ugliest of evidence to reach the most important decisions in their lives because it’s the only evidence they’ve got.  They’re instructed by the court to assess the weight of the evidence as they would in making decisions for themselves, while the reality is that people make decisions all the time based on wild speculation. If there’s any evidence at all, it’s a windfall.

That’s why so many innocent people are convicted on the uncorroborated testimony of the worst quality evidence around, the word of the jailhouse snitch.  That’s why California is right to pass a law that prohibits the conviction of a person on such uncorroborated testimony.  That’s why its a step in the right direction.  Now we need to keep walking down that path to end the phenomenon of allowing low quality, unreliable evidence just because there’s no decent evidence available.  It’s a good start. Keep going.

H/T Billy