Some of the crazier, angrier people on the internet believe that there is a vast conspiracy afoot among lawyers and judges to cover up our failings, to conceal our wrongdoing.  Sadly, these crazy, angry people are lawyers.

In a post plumbing the depths of incompetence by lawyers that still satisfy Strickland’s test for ineffective assistance of counsel (essentially limited to maintaining a post and occasional respiration), Gideon at  A Public Defender included video number 4 of a drunk lawyer in Las Vegas.



While the video is quite interesting, the relevant portion here is the first ten seconds, where the judge says, “I have no desire to ruin your reputation.”  The lawyer is defending a human being facing life in prison, not that a lesser punishment should make a difference, and yet the concern is for the reputation of the lawyer.  If he appeared in court for trial drunk, or stoned, or in any way incapable of performing his duty to his client, his reputation deserves to reflect it. 

The public has awfully good reason to hold lawyers in contempt, even though it’s often for the wrong reasons.  Regardless of whether people think we’re overpaid, underworked or merely incapable of accomplishing magic upon demand, within the legal community, we understand what our responsibility is and when we fail to live up to it.  If we sold women’s dresses, our failings would be cured by exchanges and refunds.  But we’ve chosen a life that requires us to put the welfare of another ahead of our own, and we damn well deserve to have our reputations at stake every time we fail to fulfill our duty.

Why is this controversial?  Because our very own brothers and sisters, at the bar or on the bench, assume a position that’s indistinguishable from one of the things we hate the most, the Blue Wall of Silence.  We have the pinstripe wall of silence, where we ignore or conceal the failings of other lawyers.

Some rationalize this by claiming that it diminishes the legal profession to reveal, or worse still, affirmatively disclose, other lawyers doing wrong.  We all look better if we sweep the ugly lawyers under the carpet, they say.  It’s utter nonsense.  We can certainly do our utmost to help those who fail to show either the competence or integrity to be a lawyer, but we lie to ourselves when we turn a blind eye and believe that it’s for the common good.  The next client to lose his freedom, his fortune, even his life, to the lawyer rests on our shoulders because we were too cowardly to say or do something.

Over the years that I’ve written Simple Justice, I’ve named names and called out lawyers, generating no shortage of animosity from those who didn’t want anyone to know.  My flank is more exposed than most, and there have plenty of lawyers who have disagreed with me, whether in specific instances or in general, for having broken the silent pledge of the brotherhood and revealed the secret underbelly of lawyering.  For the most part, I leave it to others to decide whether my calls are right or wrong.

Yesterday, I was again called a bully and threatened with a lawsuit for defamation by a lawyer who is quickly becoming a caricature of Rakofsky-esque stature, Arthur Alan Wolk.  It seems pretty likely that he’ll follow through on his threat, as he’s demonstrated his litigiousness if not his sanity in his latest, most bizarre complaint against the  vast right-wing conspiracy he believes is out to destroy him.

Even frivolous suits are a pain in the butt, but that’s a risk one assumes when one undertakes to write about the law and do so without fear or favor.  The choice becomes clear, to write the things that need to be written or hide from the challenge. 

Over at Solicitor Brian Inkster’s The Time Blawg, he’s run a trio of posts testing the nature of blawging, rationalizing its virtue as a business development method without being overtly scumming and self-promoting in the process.  The second post, I thought the Blawgosphere was a friendly place , reflects his belief that we can write about the law in a way that is interesting and informative, but without speaking ill of anyone or creating controversy that might impair our brother lawyers.  Whether the purpose of getting clients is primary or secondary, Brian would have us keep our mitts off others so that we can all write, be happy, be fruitful.

Along with a few other lawyers, like  Brian Tannebaum and Mark Bennett, who have been doing this for as long (if not longer) than I have, we seem like terribly mean, maybe even cruel, people.  We keep writing things that impair the ability of others to earn money.  When a lawyer shows up drunk for trial, our concern isn’t to protect his reputation.  When a lawyer files an idiotic complaint, our concern isn’t to fear being sued.  When a lawyer lies through his teeth, our concern isn’t to hold hands with him in the happysphere.  

Lawyers have no qualms about calling out cops, prosecutors and judges for doing what we perceive to be wrong, but they are the agreed-upon targets and there’s no risk in attacking the mutually agreed-upon perpetrators of evil.  In fact, it’s damn good business, since potential clients similarly despise those whom they perceive to be the sources of their misery.  It’s not bold. It’s not brave.  It may well be called for, but it’s not enough.

The second we shy away from saying what we believe must be said, we become the enablers and apologists for all that has gone terribly wrong with the legal profession and system.  One recurring question about our system, that most of us feel has failed miserably to live up to its platitudes, is how do we fix it.  While I have no magic bullet answer, there is one thing we can do in the meantime.  Expose what’s wrong with the system, including the failings of our own, and face the consequences of being the most unpleasant person in the blawgosphere. 

Or say nothing of consequence and never fear being called a bully by a litigious fool.  This isn’t the way to win popularity contests or become wealthy and successful on the internet.  You will have to go elsewhere to learn those tricks.  But I’m a lawyer and I cannot ignore or conceal the wrongs done by other lawyers.  You will have to decide for yourself who you are.

It’s anything but clear what would happen if executions were shown on prime time.  Would the public be horrified to see in living color what becomes of a human being put to death?  Would they believe it to be kind, like a dog put to sleep.  Would they be disappointed that there was no blood?  Would it be the next top rated reality show?

David Lat and Zachary Shemtob were given space in the  New York Times to opine on the subject of making executions public.  Yes, the same David Lat whose kept a close eye on what was happening underneath judges robes. 

It’s a horrible thing that Andrew DeYoung had to go through,” [Brian] Kammer said, “and it’s not for the public to see that.”

We respectfully disagree. Executions in the United States ought to be made public.

Not because they believe it will show the horrors of execution.  Nor because they believe it’s likely to show how peaceful they look as they fade into oblivion.  They just think it ought to be shown.

Cameras record legislative sessions and presidential debates, and courtrooms are allowing greater television access. When he was an Illinois state senator, President Obama successfully pressed for the videotaping of homicide interrogations and confessions. The most serious penalty of all surely demands equal if not greater scrutiny.

Why they would call the public broadcast scrutiny is unclear, given that it suggests a searching examination rather than a popcorn and beer opportunity.  There is no comparison with legislative sessions or presidential debates, both of which involve some element of scrutiny, to the extent the viewing public is capable of it.  Nor does comparison bare out for interrogations and confessions, which serve to provide a record so that the defense isn’t left to argue with a cop’s recollection at trial.

Ultimately the main opposition to our idea seems to flow from an unthinking disgust — a sense that public executions are archaic, noxious, even barbarous. Albert Camus related in his essay “Reflections on the Guillotine” that viewing executions turned him against capital punishment. The legal scholar John D. Bessler suggests that public executions might have the same effect on the public today; Sister Helen Prejean, the death penalty abolitionist, has urged just such a strategy.

That is not our view. We leave open the possibility that making executions public could strengthen support for them; undecided viewers might find them less disturbing than anticipated.

How the public will receive executions in their living room can be debated all day long, but no answer will be forthcoming and there may well be strong reactions going both ways.  While the authors’ agnosticism toward the punishment itself is disappointing, if not incredible, their argument that it could just as easily bolster support as undermine it makes great sense.  

As an opponent of the death penalty, my greatest fear is that the public will adore watching it on television, turning it into the greatest reality show ever with commercials rivaling the Super Bowl.  I can see networks paying off the families of accused to turn away from appeals to keep the flow of warm bodies coming.  I can see the public screaming for increasingly graphic methods of execution, because there just isn’t enough blood and guts in a three drug cocktail to juice up a kid who’s watched all the Jackass movies.

But this is real.

A democracy demands a citizenry as informed as possible about the costs and benefits of society’s ultimate punishment.

While true, a bit too simplistic.  Watching a man die doesn’t inform the public about the costs and benefits of the death penalty.   Whether it informs anyone of anything, if it’s just showing the public the insertion of an intravenous tube and a guy fading to black, is dubious.  The problem is this doesn’t go anywhere near far enough to make it meaningful or informative.   It would be one thing if we still used Old Smokey Sparky, but the current regimen is hardly designed for spectacular visuals.  Television is a visual medium, and watching a three drug cocktail administered lacks a certain sizzle.

How about showing the life of the victim of the underlying crime?  How about showing the public the life of the man about to be executed?  Their families, their days, their upbringing and the problems.  The hopes that died with both. 

How about showing the investigation and trial, the means by which they got to the point where a needle was put into a man’s arm?  How about the sentencing phase, where the mitigating evidence is presented to remind the jury that this is a human being before them?  If this is all about transparency to enable the public in a democracy to be informed about how the sausage of execution is made, then let’s see the process from start to finish.

Besides, the network needs to fill at least an hour to milk the top commercial money from its advertisers, and the execution itself will take about as much time as announcing who will not be the next American Idol.

According to the note on the wall, this happened a mere 7 hours ago and already it’s up. 

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  City of Utica, NY Police Department

  
  

  ‎***News Release***
  
  On Sunday morning, July 31, 2011, at around 5:12 p.m., Utica police responded to 310 Columbia Street, in regards to suspicious activity. When police arrived they met with the handy man for the apartment building, who told them that he heard banging on the front door, and went down stairs to see what it was. The handy man said he saw a black male, who had cracked the top glass portion of the door and removed the bottom paneling portion of the door saw well.
  
  The handy man pointed out to police, the person who damaged the door and was now walking in the middle of the roadway on Columbia Street.
  
  After a brief foot chase Officer Eric Weir would arrest Quandell O’Neal (age 21, of Summit Place, Utica) and he would be charged with:
  *Criminal mischief in the fourth degree,
  *Having a controlled substance not inits original container, and
  *Pedestrian walking in the roadway, not using sidewalk.
  
  Note: All crimes described in this press release are allegations, and suspects named are innocent until proven guilty in a court of law.

  
  

  
  

  
  

  
  

 Not exactly the crime of the century, criminal mischief in the fourth degree, but enough to put 21-year-old Quandell O’Neal on the Utica Police Department’s wall of shame.  It’s provides some details of his wrong together with his photograph.  At the bottom is the obligatory note that there are merely “allegations, and suspects named are innocent until proven guilty in a court of law,” but that doesn’t give the Utica cops pause to make sure everybody knows about it.

Social media is the one where we make friends.  Is O’Neill feeling loved by having his picture on the wall?  Not likely. Anti-social media is the one where we use it to gain advantage by smearing someone with unproven, untested allegations and making sure everybody knows who the bad guys are.

The Facebook page doesn’t limit itself to the trivial, but the serious as well.  No need to persuade some local reporter to write the story that makes the bad guy bad and the good guy good when you can broadcast it on your own.  Since we’re all self-publishers these days, why not the cops?  Why not use the means available to take every arrest, from the most serious to the most trivial, and lay out your view on the internet before anyone else can contradict it.

The Utica Police Department may see its wall as a way to let the public know that it’s doing its job, protecting them from criminals.  But these are people merely arrested, as noted, innocent people.  By jumping ahead, the cops get to characterize every person they nab as the bad guy, without the bad guy having his say.  They get to frame public perception that every person arrested committed the crime, despite the caveat done to appease the lawyers.  They put the face of a person on the internet and explain why he’s a criminal, without proof or challenge.

Will jurors at trial wonder what evidence the nasty defense lawyers are forcing the court to conceal from them?  No need to wonder any longer, as the information is readily available on the wall.  What about the statements, maybe even a sweet confession?  There it is, spelled out word for word.  You can suppress all you want, judge, but you can’t keep the jurors in the dark from the truth anymore.  The internet will give up all the secrets.

And what of young Quandell, who might someday give up his life of criminal mischief and seek gainful employment as a United States Senator.  Google his name and the first thing that pops up is the Utica PD Facebook page about his arrest.  He may be acquitted later, or perhaps have the charges dismissed, but that page will haunt him forever.  His rap sheet can be cleansed and his prints destroyed, but the law doesn’t make the cops take his mug shot off the wall.

Did you suspect social media would be limited to teenagers and desperate lawyers flawging their wares?  Not only has it proven to be a rich source of information for all sides in litigation, but it’s affirmative by the Utica police, much like Nassau County created its  Wall of Shame for unconvicted drunk drivers, to let the public know of all the bad guys in its midst, is a testament to its power and ability to circumvent all the ordinary means of the legal system.

Sure, television and newspapers report on crimes, putting the picture of the suspects on the air and telling the story as related by the cops.  Usually, it’s limited to more serious offenses, and subject to a certain degree of scrutiny.  Often, it provides an opportunity for the other side to add in its two cents, though not always.  Whether people alleged to be criminals ought to be held out to the public as bad guys while presumed innocent is an issue, but it’s an American tradition to report first and prove later.

When even the most trivial arrest becomes part of the perpetual public record, however, it’s time to question whether the potential for harm, the ability to undermine the legal system by unfiltered police claims and pre-empting public smearing, has taken the authority of the cops and the public’s desire to know too far.

But then, it’s social media, the newest, coolest, shiniest thing around, and it was bound to be used by the cops just as it’s used by teenyboppers and the slackoisie.  Just pray you don’t get nailed for criminal mischief in Utica, or the first thing on Google about you, even if you’re innocent, might nail you to the wall.  Forever.

H/T Oneida County PD Cory A. Zennamo

No lawyer is entitled to walk with as much of a swagger as Baker Hostetler’s Irving Picard, the man charged with suing the wealthy and poor alike to recapture the monies lost to Bernie Madoff’s Ponzi scheme.  He and his team of thousands of hourly charging lawyers seemed omnipotent, unstoppable, in their quest to find funds and claw them back, maybe even leaving loose change for those who suffered in the scheme.

But not even Irv, the most powerful lawyer on earth, is strong enough to beat the banks.  From the New York Times :

He has sued the feeder funds that funneled money into Madoff’s firm. He has sued people who were close to Madoff and likely knew he was a crook. And he has sued many innocent Madoff investors, who had the misfortune of taking more money out of their accounts than they put in. Although these latter lawsuits have been extremely controversial, “clawing back” money from net winners to create a pot of money for the net losers is something bankruptcy trustees do all the time after a Ponzi scheme is exposed. After all, the gains reaped by the net winners came from money the net losers put in. That’s how Ponzi schemes work.

What trustees don’t generally do, however, is sue big financial institutions like HSBC or JPMorgan Chase on the grounds that they either looked the other way or helped enable the Ponzi schemer. As we discovered during the Enron scandal, the courts frown on “aiding and abetting” suits, even though to a nonlawyer, they can seem more than justified.

Curiously, such conduct is more than sufficient to put a man in prison forever, whether for actively helping some schemer get away with it or consciously avoiding knowledge while the schemer does his dastardly deeds.  But those rules that apply to mere mortals do not affect institutions of finance.

[I]n throwing out Picard’s suit against HSBC — and strongly implying that every other bank the trustee has sued is also likely off the hook — Rakoff may have used sharp language, but he was really just interpreting the law as most judges would. You can’t read his opinion without being impressed with his legal logic — and the difficulty of mounting a successful appeal. You also can’t read it without shaking your head in dismay: Even as innocent Madoff victims are being sued to pay back other innocent Madoff victims, the enabling banks get to walk away. Sounds familiar, doesn’t it?

Don’t blame Southern District of New York Judge Jed Rakoff for doing his job, determining whether even a giant like Picard has the juice to square off with the titans of finance; did Picard have standing.

In this case, he said, he was being asked to determine whether Mr. Picard, as the trustee for the defunct Madoff firm, had standing to sue “third parties who allegedly violated a duty to Madoff Securities’ customers by failing to detect Madoff’s fraud.” He said his answer was no.

In a sharply worded dismissal of Mr. Picard’s “convoluted theories,” Judge Rakoff rejected all the various arguments the trustee had put forward.

It was not at issue that the banks, big, powerful banks, had awfully good reason to know they were complicit in Madoff’s scheme, from overlooking its nature to laundering its proceeds.  The question presented was whether the victims could take the banks to task for enabling Madoff all those years.  The legal answer came as no surprise.

Still, don’t feel badly for Irv and his band of merry men for having been dealt such a crushing blow by the banks, without whom Bernie Madoff could never have perpetuated his scheme and sucked in feeder funds and individuals who thought that he had to be legitimate or someone would certainly have known.  They can still round up all the Madoff investors who took their profits and render them destitute.  They can still undermine baseball teams and hedge fund operators.  It’s not that Irv doesn’t have plenty of juice to unravel the fabric of polite society.

It’s that nobody, not even Irving Picard, can hold a bank responsible for anything.

And you thought Chuck Schumer’s lying prostrate on the floor when it came to DataTreasury was unseemly?  Neither law nor politics can surmount the might and control of the banks, because that’s where the money is.  Willie Sutton knew it.  Now Irv Picard knows it. You might as well know it too.

While older lawyers continue to resist the inevitable, unconditional surrender to social media as our Overlord, Kevin O’Keefe at  Real Lawyers Have Blogs explains why we must capitulate, give ourselves over to the unstoppable tide.  At the moment, 54% of companies block access to social media, the lifeblood of our youth.  Why, oh why, he asks.

On the one side, there is the fear of corporations and law firms that opening their computers to social media will mean that their younger personnel, digital natives, will spend all day watching twitter and facebook, chuckling at cute kitten pictures and updating their status.  The HR types say this could impair productivity.  The clients might be concerned that young lawyers might not find enough time between twits to represent them before heading out for work/life balance at Happy Hour.

Kevin counters these specious concerns with hard, cold facts.  While he lists five reasons, two struck me as particularly critical.

More of your lawyers are relying on social networks to do their jobs. How often do you turn to friends and colleagues online for advice? How often do you read blogs to keep up with industry trends? Data suggests 25 percent of employees rely heavily on social networks in the workplace. It’s probably higher for your star lawyers and other professionals.

You’re staring down the clock, a minute to midnight, with a critical issue to be addressed that spells life or death for your client.  You draw a blank.  Nothing.  Come the morning, some partner who can’t write an email by himself is going to either slap you on the back for a brilliant job, or point you to the door for having blown the biggest case on the firm’s docket.  What to do?

An old codger might think, research!  Hit the casebooks, the statutes, maybe even law reviews if you’re desperate enough.  Think.  Think hard.  Aw, you foolish codger.  The young lawyer knows the solution that eludes you.  Ask all your friends on Twitter!!!  So what if you don’t actually know them, and can’t say for sure that they’re really lawyers, or have more than 12 minutes experience, or just spend all day blowing off steam on social media to be such a happy person, complimenting everyone else’s witty twit and deeply empathizing with those suffering pain and sorrow.

Crowd source. Bleg. Whatever.  The internet can’t be wrong.  And everyone you’ve ever met on the internet, your true friends, are invariably authentic and brilliant, just like you.

You’re going to lose lawyers and other professionals to competitors. Per a study by American Express, 39 percent of younger workers won’t even consider working for a company that blocks Facebook. Facebook has become the communication tool of choice for many young professionals. Why would they work for a law that’s going to block its use?

Charles Johnson looks very happy, and why shouldn’t he. He can spam twitter all day long with no effort at all and, if the  Wall Street Journal is right, this is how lawyers go from zero to hero.

[Matthew] Galluzzo’s law partner, Zachary Johnson, 34, said the web isn’t just a space for pointed commentary. “It’s a very cost-effective way of marketing,” he said. “Facebook and Twitter are becoming so prevalent amongst consumers of all services, we would be doing ourselves a disservice as a law firm to not use these channels to reach people.”

It’s also intended to draw clients and attention from the media, others said.

“I’m writing about a topic that people are looking into or investigating,” said Jeremy Saland, 36, a criminal defense attorney who runs a blog and Twitter feed for his practice, Crotty Saland. “This is no different, at the end of the day, than the Yellow Pages back when the Yellow Pages were relevant. It’s just another vehicle.”

If they’re using social media as their new Yellow Pages ad, then Johnson wants to own the back cover of the Dallas book.  And it seems he couldn’t be happier.

Every few minutes, there’s another twit from Charles which covers a different crime and is keyed to anyone searching twitter for a criminal defense lawyer.  After all, if you can’t trust your life to twitter, what use is social media.

I found Johnson by accident yesterday, having decided to see what a twitter search for “criminal defense lawyer” brought up.  There were a few others, like Johnson, spamming twitter with advertisements, and some crazy things like why  whites make better criminal defense lawyers than any other ethnicity:

Even jews, who aren’t ethnically white, refuse to become criminal justice defense lawyers (especially ones that work with the government). Do you know why whites excel in this field? Because they have absolutely no emotions, who is better to trust a job that requires apathy than a race of people that have mercilessly slaughtered billions of people including mostly women and children in the name of white supremacy? No real human being can put their heart into defending a child molester or murderer as a living.

See all the great information you learn on twitter?  But back to Johnson, who had much to say as well.



Twitter gurus tell us that in order to become a trusted agent and thought leader, we need to authentically engage.  What they don’t realize is that left to their own devices, that’s exactly what happens.  This is the real Charles Johnson, happy, smiling, spamming the living crap out of twitter in the hope that some poor, misbegotten fool with give him money.  Nothing could be more authentic.

At least that was true until I read a post by Radley Balko, coincidentally coming right on the heels of my discovery of Johnson.  It seems that Radley, now that he’s a huge media star in his own right and therefore a star-maker, got pitched via email:

As a Celebrity Criminal Defense Attorney, Former Prosecutor, Law Professor, and Judge Pro Tem, Attorney [Jeffrey] Steinberger can provide expert legal commentary regarding any story involving any Celebrity Arrests, Conviction or Sentencing (i.e. Drug Rehab; Jail Time; Alternative Sentencing, etc.).

Attorney Steinberger is available to discuss all civil matters as well and any other legal matter not mentioned above.

Attorney Steinberger is able to take a position on either side of any case– defense or prosecution.

In Attorney Steinberger’s 15 years of doing “hits” for all the major news channels, I have provided legal commentary for CNN, MSNBC, FOX News and ABC, NBC, CBS news networks, as well as CourtTV, Inside Edition, Access Hollywood, Entertainment Tonight, and Showbiz Tonight.

So  Jeffrey Steinberger can provide expert legal commentary on any story on any subject.  He must be just about the smartest lawyer ever, since most lawyers can only be experts on stuff they know.



While Radley called Steinberger a whore (with apologies to actual whores), he’s being unfair.  This is what being a lawyer is all about these days, using whatever tools present themselves to make oneself into the most alluring presence possible, whether because of the desire for fame or success, as written in the WSJ,

“We were getting so many phone calls about the case from the media, we decided to tweet about it and have people follow us for updates,” Mr. Galluzzo said.

And yet, somehow, I have no clue who Mr. Galluzzo is.  Or, for that matter, Messrs. Johnson or Steinberger.  But I already know a lot about them.  And they tell us a lot about how the race to the bottom is going.  So what are you going to do to make yourself authentically stand out?  The bar is already incredibly low, and it’s going to be very hard, very hard indeed, to scream louder than these fine criminal defense lawyers.

And if you could only be one of these two lawyers, would you be happy Charles Johnson or important Jeffrey Steinberger?  I know, it’s a very hard decision.

There are stories about a guy who gets a terrible beating from cops because he wasn’t sufficiently respectful and obsequious, and they could.  These are bad stories, often terrible stories, but they come out because there is someone who cares about the fellow beaten.  What about some homeless guy, a person who barely exists in our society. 

Who would know if the cops beat him to death for nothing?  Who will care.  Via Carlos Miller‘s pixiq page :

Kelly Thomas, a 37-year-old homeless man with schizophrenia, kept calling for his father as police beat and tased him repeatedly.

But his father, a retired Orange County sheriff’s deputy, was not around.

It wasn’t until after Thomas slipped into a coma and was hospitalized with multiple injures that his father saw him.

And by then, it was too late. Thomas never recovered. The 135-pound man died five days after his run-in with Fullerton police.

Thomas’ father, a retired Orange County sheriff’s deputy, has asserted that officers used excessive force to subdue his son, who was unarmed, slight and of medium height.

After seeing his son’s injuries and talking with witnesses, Thomas told the Register his son “was brutally beaten to death.”

“When I first walked into the hospital, I looked at what his mother described as my son … I didn’t recognize him,” Thomas said. “This is cold-blooded, aggravated murder.”

Thomas, citing witnesses, said officers hit his son with the butts of flashlights even after he stopped moving.

He said his son was probably off his medication and didn’t understand officers’ commands.

While no one may ever take the place of Joseph Rakofsky as an object lesson of how not to bootstrap one’s improper behave as a lawyer into an internet phenomenon, there are other, more experienced lawyers who seem determined to give Little Joe a run for his money.

Via  Techdirt, Florida lawyer Joel Hirschhorn went the full bluster route.  According to his website, his Miami firm is “nationally renowned” in criminal and white collar defense, which makes sense given his URL of acquitall.com.  This could explain why I’ve never heard of him, not being sufficiently appreciative of lawyers who are nationally renowned. 

Nonetheless, it appears he found time away from being nationally renowned to stray into first amendment law on behalf of his online sports betting client and go after commenters at 800Notes.

800notes is one of those sites that gets even more bogus legal threats than we do. The site which lets its users track and discuss telemarketers recently received a threat from a lawyer, Joel Hirschhorn, representing a guy named Adam Meyer, who sells some sort of “Adam Wins” sports betting thing. Not surprisingly, the 800Notes page for “Adam Wins” has a number of comments, many of which are from people who are not fans of Adam or his telemarketing. Adam’s lawyer, Hirschhorn, mistakenly threatened the site 800Notes with defamation for the comments on those pages. Of course, as is well established in both the statute and in the case law, 800Notes is protected from liability on the comments of its users thanks to both Section 230 of the CDA and basic common sense about who’s legally liable for statements.

Paul Levy [from Public Citizen], representing 800Notes then called Hirschhorn to explain the law to him… only to have Hirschhorn abruptly hang up on him:

I then called Hirschhorn myself to try to discuss the law with him and to give him the names of cases from both the Florida Supreme Court and federal trial and appellate courts in Florida that support the immunity of Forte’s company; I also hoped to explain the Dendrite process to him so that, assuming he could prove falsity and damages, he could pursue the anonymous posters if that was his client’s choice. Hirschhorn bragged that he is not just a member but the founder of the First Amendment Lawyers Association, but acknowledged that he himself did not know anything about the law in this area; instead, he said, he hires others who know the law to help him.

Defendant Walter K. Olson (Olson, also sometimes called Internet Bully and Internet Stalker or Overlawyered defendant), is an individual, a citizen and resident of the State of New York., a lawyer who now lives in Washington D.C. where he moved to become an instigator for the ultra right wing policies of Cato and who with Frank runs Overlawyered for the benefit of ultra right wing organizations and their trustees, and who assists Frank by editing the defamatory publications on Overlawyered to bring discredit on lawyers and judges whose views and experience may be different than his by failing to investigate the facts, false reporting, ignoring mandates of judges and lying to the public.

Who knew Wally was so evil?  But then there’s the libertarian thugs:

Defendant Reason.com is another Internet bullying site organized under the laws of the State of California, with its principal place of business in Los Angeles, California. It is one of the mouthpieces for Overlawyered.com and its mentors, Manhattan, Cato and Enterprise, which are co-conspirators, and is the attack dog for inter alia,

The Reason Foundation, a euphemism for the policies and goals of the Libertarian Party, a right wing fringe element that espouses what amounts to an abandonment of the institutions of our Republic and its substitution with a Government by putative journalists, self appointed intellectuals and right wing pundits but whose real goal is to work with Overlawyered.com and Olson, Frank, Manhattan, Cato and Enterprise, and their respective trustees to assassinate the character of individuals chosen for that purpose because they are a threat to the America without laws Reason Foundation wants. Reason Foundation raises funds for their anti-consumer, anti-Government, anti-court, anti-judge and often anti-Semitic, anarchistic views by proving to their donors how vicious they can be on their various media sites including Reason television,

Reason.com and Reason magazine Reason.com attempts to accomplish these ends by re-publishing with new commentary publications of Overlawyered, Frank and Olson for the purpose undermining the civil justice system in the United States, by forming an Internet tag team so if one of them is silenced for their falsity, the other simply republishes with more false and defunctory cormment to keep the libel alive.

The idea is to whip up a frenzy to prove their dedication to the causes of the Libertarian party, much like the Nazi’s of the early 1930s, which will cull more donations from their very rich donors and blind them to the dangers to American institutions of their radicalism. It is believed and therefore averred that employees or agents of Reason. com are the anonymous bloggers.

And this is only paragraph 6 of the Wolk complaint (broken up from its single paragraph form into smaller, more readable bites), and already we’ve got the Nazis involved.  Nothing ever ends well when the complaint compares the defendants with the Nazis, or when the plaintiff wears a tin foil hat.

What this reflects is the arrogance of lawyers in believing that they can control the internet.  Neither bluster nor averment is going to bend the internet to our overwhelmingly mighty lawyer will.  I know, it’s hard to fathom that the world doesn’t shake when we threaten or act, but the internet is a different animal from anything we’ve ever before known.

As lawyers, it’s time to come to grips with some hard realities that now exist and appear likely to be the norm going forward.  First, we are subject to ridicule online just like Babs Streisand.  Expect that every swing of your big lawyerly muscle is going to be rebroadcast in unkind terms by a lot of people who carry weight on the internet that lawyers can only dream of.

Second, expect that our claims and allegations will be subject to scrutiny far beyond our wildest dreams, and there’s a darn good chance that if there’s a flaw, any flaw, even the slightest, it’s going to be magnified beyond your wildest imagination and become a testament to your incompetence.

And third, and most importantly, regardless of all else, the internet is populated some very smart and some very crazy folks.  If the former don’t get you, the latter will.

In other words, it’s a game that’s very hard to win, even if you’re absolutely right.  To be fair, however, few of these internet antagonists are anything close to right, making the likelihood of perpetual online humiliation and ridicule a near certainty.

If your purpose is not to look pathologically stupid on the internet in perpetuity, then don’t do it.

I got a twit from a young lawyer who I’d never heard of before.  He had few followers on twitter, and was likely new to social media and trying to find some other criminal defense lawyers to hang with.  He made a funny twit, and I like funny twits, so I clicked on his name to see more about him.

What I happened on was this exchange.

Via Doug Berman, law professors Oren Gazal-Ayal and Avishalom Tor take a stab at addressing the theoretical problems with plea bargaining by what they call “the innocence effect.”

Many scholars argue that plea bargains should be curtailed because they facilitate wrongful convictions.  Others contend that plea offers can only benefit innocent defendants, by offering them an alternative to the risky trial, which may lead to a much harsher sentence. Yet even while drawing contradictory conclusion regarding this practice, both camps in the debate agree that plea bargains often lead innocents to plead guilty.  They simply argue about the normative implication of this result.

The decades-long plea bargaining debate is based on a combination of scholarly beliefs and theoretical models, with little systematic evidence to support either position.  The present article draws on a diverse set of empirical findings to reveal the innocence effect, whereby innocents are significantly less likely to accept plea offers than their guilty counterparts, even when these offers appear objectively attractive in light of the evidence against them and the expected sanction at trial.  

The “thesis,” to the extent it can be called that, is that innocence has an impact on a person’s decision to accept a plea bargain.  And the sun rises in the morning.  More interesting is that the lawprofs argue that innocent defendants are singularly resistant to plea bargaining, such that the fears of innocent people being induced to plead guilty by sweet deals is exaggerated.

That innocent defendants, at least at the outset, resist pleading guilty is hardly worthy of a law review article or a really cool name like “the innocence effect.”  But the argument used to prove its existence is that the evidence against innocent defendants is inherently weaker than that against guilty defendants, because (duh) they’re innocent.  This is what comes from theoreticians:

Innocence, in this setting, plays only a minor role, if at all. True, one should hope that innocent defendants, on average, face weaker cases (i.e. a lower probability of conviction at trial). Yet, most weak cases are dismissed at earlier stages; the risk to innocent defendants is substantial mainly in the rare situations where the case against them is relatively strong. Moreover, according to the shadow of trial model, plea bargains are just as likely in strong and weak cases. Prosecutors only need to adjust the offer to the probability of conviction in order to reach an agreement. Thus, weaker cases result in more lenient plea bargains, and stronger ones in relative harshness, but both result in an agreement.

Admittedly, when the case is weak, the parties must rely on charge bargaining to make the necessary adjustment, in order to avoid judicial rejection of the agreed sentence. But it is hardly an obstacle. Charge bargaining in weak cases is not the exception; it is the norm all around the country. Thus, even if the evidence against innocent defendants is, on average, weaker, the likelihood of plea bargains is not dependent on guilt.

The reliance on evidence as the deciding factor, further exacerbated by the authors’ reliance on those subsequently found to be innocent, is that it ignores all the nice folks who are either innocent or overcharged who are never subsequently exonerated.  This, of course, can’t be in the world of the theoretical.  This reinforces the naive belief that it’s all about evidence, the argument that defendants perpetually make when confronted with the harsh reality of the courtroom.

The question confronting every defendant, whether innocent or guilty, is what are the chances of winning at trial.  The answer is controlled by a few factors, not all of which are savory.  One factor is whether their lawyer is capable of trying a case, which should come as no shock to anyone.  Another is whether the defendant has anything to offer to contradict the testimony against him.  Few do, regardless of whether they’re innocent or guilty, which should also come as no shock. 

The primary factor, which comes into play in the authors statistical analysis of the innocence effect, is the trial tax.  Is a defendant willing to roll the dice and risk the punishment likely to come after trial when he could cop out to less.  The authors argue that this concern, that innocent people will take this option, isn’t as serious as we all make it out to be.

What a load of crap.

I’ve defended innocent people.  I’ve defended guilty people.  The evidence is the same.  The outcome is the same, whether dismissal, conviction or acquittal.  And no scholar would be able to tell the difference.

Guilty people tend to be much easier to represent, as they understand what they’ve done, anticipated the possibility of being arrested and prosecuted, and tend to be far more prepared to deal with it.  They take calculated risks with far greater equanimity.  It’s a cost of doing business.

Innocent people bay at the moon.  It’s unfair.  It’s unjust.  And it changes nothing.

The evidence needed to convict a person need be no stronger than a cop on the stand saying the magic words, with that honest, I’m-here-to-protect-you, law enforcement look on his face, that assures conviction.  They rarely break down and cry when you catch them in a lie.  They just use one of the handful of excuses they keep at the ready for why they can’t remember every detail and sometimes make a mistake, which doesn’t change the fact that they saw what they saw and found what they found.  Why would they lie?

But of course, they do lie.  They lie about the guilty and innocent alike.  Sometimes it’s a big lie, but most of the time it’s little lies, enough to get past the minor hurdles. 

Innocent defendants, however, are all full of fight at the outset, but fade quickly.  They get tired of having the threat of gargantuan sentences hanging over their head, the pressure of thinking, every night, all night long, about what they did to God that he would punish them this way.  They think of their children without a parent for decades.  They think of all the people who tell them that no one ever wins. No one.

These are the innocents who don’t catch the break of making it onto the radar of law professors conducting an empirical study, because they look just like the guilty.  These are the anti-innocents, because they’ve pleaded guilty in the hope that they won’t die in prison.  And you will never know who they are, and you will manufacture empirical studies that will ignore them because their conviction is so mundane that it defies your simplistic expectation that evidence proves anything.

This isn’t to say that plea bargaining is a bad thing because it puts innocent defendants in prison in order to avoid the risk of trial.  It’s to say that theoreticians, scholars, can’t tell an innocent person from a guilty person any more than a cop, judge or jury. 

There’s no magic to this system. It treats everybody like dirt.  Got an “effect” for that?