At 12:01 a.m., gay marriage became legal in New York. That’s it, the ballgame is over.  Whether you think it’s the most wonderful thing or the end of civilization no longer matters.  Marriage ceremonies began almost immediately, and from the clips shown this morning, they were most endearing.

The bible says homosexuality is an abomination?  So don’t let your inner gay come out.  That’s your call.  Nobody will force you to engage in gay love.  Can’t stand the sight of a couple of dudes kissing?  Shut your eyes.  They won’t mind. In fact, they won’t care at all, because they’re busy doing something else.

Notably, New York is the sixth state to legalize gay marriage, and the largest (because who really cares if gays get married in Vermont anyway).  Whether it’s the full faith and credit clause or the hard, cold reality that they live among us and they’re not going away, gay marriage is going to find its way into your neighborhood.  Whether two guys or gals, whether old or young, whether well dressed or looking kinda scruffy, they’re there.  Or at least they’re coming.  And they’re never going away.

If it’s the eve of destruction, then we’re doomed.  But it’s a fait accompli and anyone who takes issue with it better find a way to deal with it.  Stop acting like some schoolboy in fear of his sexuality and come to grips with the fact that there are a bunch of people who prefer to hold hands with people of the same gender.  Legal discrimination against homosexuality is now behind us, and it’s time for attitudes to keep up.

They’re queer.  They’re here.  They’re married.

When I saw that Kevin O’Keefe posted his first impressions of Google+ (or G+, as the cool kids call it) at Real Lawyer Have Blogs, I feared that I would be left behind as an early adopter and my Klout score would diminish, meaning that they would no longer send me stale, but free, snack foods.  The thought was oppressive.

Aside from it being the newest (and hence coolest) thing, Kevin wrote:

Google Plus generates lots of interaction and discussion, more so than possibly Twitter and Facebook. Look at this blog post of mine. Two comments on my blog. 10 comments on Google Plus. You want to be part of a dialogue with influencers and amplifiers, better still if it was your original insight  (blog post) that initiated this dialogue. Not only doesn’t it matter if the dialogue is some place other than your blog comments (Twitter, LinkedIn, Facebook, now Google Plus), but it’s better if the dialogue is someplace other than your blog. More people see the dialogue and have the opportunity to join in. Plus you are seen as someone who ‘comes out’ and joins the discussion, not someone who says, “Look at me and my blog, come here as I measure my success and worth by traffic to my blog and, in turn, my website.”

Then again, one man’s positive is another’s problem.  Being, at this stage, a fairly old school blawger and occasional twitterer, I’m at my limit of internet distractions.  I have a Facebook and LinkedIn account, but I never use them. When I write a blawg post, I hope that anyone having anything to add to the conversation will use the post’s comment section. 

When twitter took hold, people would twit about my posts, meaning that they were both lost to posterity and separated from the post itself.  Someone reading the post might never see the comments, and the conversation was happening in different rooms among different people, never the twain to meet.  I hated it.

Rather than bridge the gap, the internet keeps building new rooms with different people and different conversations.  For those people who want to spend every waking hour moving from room to room in search of something to prevent them from ever having face to face contact with real people again, this is good. 

But consider this unintended point by Ex-Google employee Kirrily “Skud” Robert in reaction to the  Google+ mass deletion of accounts of those it deemed weren’t using “real names” as the deal required:

The former Google employee that originally applauded Google Plus’ statements about real names had their account suspended. Kirrily “Skud” Robert writes in I’ve Been Suspended From Google+ :

So today, I got off a plane this afternoon to find a pile of tweets, emails, and blog comments asking whether it was true that my Google+ account had been suspended. When I managed to get some wifi and check, it turned out that it had been.

The part that caught my eyes was the “pile of tweets, emails and blog comments.”  He didn’t even mention Facebook.  And now we need another place to check as we get off a plane?  Seriously?

There’s a great Toyota commercial about us old folks being anti-social that, aside from being hilarious, makes one heck of a point.

Most of the books I review come to me via a publicist who asks whether I would be interested in reading and reviewing them.  Most of the time, I’m not.  But when Dan Solove, of Concurring Opinions, announced this his new book was out, Nothing to Hide, The False Tradeoff between Privacy and Security, I reached out for a review copy.

Dan’s last book, The Future of Reputation, was foundational, schooling its readers on the dangers of putting every burp and smirk online, or worse still, having someone else do so.  It’s likely the only book by a lawprof I will ever make my children read.  With that high bar in mind, I dove into Nothing to Hide, the subject being almost as dear to me as it is to Dan. 

The book is constructed in three parts, the first addressing the “myths” of the argument that invariably permeate discussion.  The most famous of these, that if a person has “nothing to hide,” then he won’t mind the police rummaging through his things, inspecting his internet usage or credit card receipts.  Dan takes apart the myths in a detailed, scholarly way, bit by bit. 

The harms are bureaucratic ones — indifference, error, abuse, frustration, and lack of transparency and accountability.

No one can seriously doubt that a parent’s unintended act, a mistake by all accounts, that results in the tragic death of his child is far greater punishment than any prison cell.  So this story from  St. Louis Today questions why prosecutors add “insult to injury.”

In 2007, his 3-year-old son, Joshua, found a loaded pistol left in a nightstand and shot himself in the chest.

Lesnick, a former federal police officer and licensed firearms instructor, pleaded no contest to charges of child endangerment and served a year’s probation. So did his wife, who was at their Wisconsin home when Joshua found the gun.

That was the penalty meted out by the criminal justice system. But Lesnick said it doesn’t come close to matching his real punishment.

“I have to look at my son’s killer in the mirror every day,” he said. “I am 100 percent responsible for my son’s death. That’s a heavy, heavy burden.”

Of course Lesnick should have known better.  He was careless, no, reckless, in leaving his gun within reach of his son.  And he will be punished for it every day of his life.  What does prosecution add to the mix?  Piling on?  Society’s need to make someone pay whenever a child is killed?

This story came to light from a post by Doug Berman at Sentencing Law & Policy.

Ever the utilitarian thinker, my instinct in these sorts of cases is to bring a criminal charge in order to help “spread the word” as Lesnick puts it.  Absent proof of any malice, I would not expect a parent or guardian to get a severe sentence for this kind of accidental crime, and yet the very decision to prosecute will help raise awareness about the risk of these sorts of tragedies.  I certainly understand a retribributivist instinct that the parents in these of cases have “already been punished enough,” but that notion only leads me to want to ensure the criminal sanction is not too severe after we get the utilitarian benefits of going forward with an initial prosecution.

Of the legitimate bases for sentencing, “spreading the word” comes closest to general deterrence, though it doesn’t fit very well.  General deterrence is the notion that by letting others know of the punishment for engaging in particular conduct, the price that will be paid, they will decide not to do so.  But we’re not talking about intentional conduct here, a volitional choice.

We’re taking about carelessness, even if so bad as to rise to recklessness.  It the absence of thought, or care, not an affirmative decision based on an assessment of penalty.  If that was the case, certainly the death of a beloved child would far exceed any threat of other punishment as a reason to be more careful.

Rather, it’s the spread of information that tragedies do occur when carelessness happens, the purpose of which is to remind others to be careful.  One would suspect that people who possess guns in houses with children would already be acutely aware of the risks, but then this issue extends beyond the facts of the case of Michael Lesnick.

The bigger question is whether prosecution should be used as a “utilitarian” method to serve purposes unrelated to individual wrongs.  I think not.  More importantly, I think this present an extraordinarily dangerous abuse of the criminal justice system to vindicate interests that really have nothing to do with the defendant or the conduct, but rather “use” the defendant for unrelated and completely improper purposes.

As is pointed out in a comment to Doug’s post, the fact of the tragedy happening will likely be report by the media anyway (it being incapable of passing up a story about a dead child), and the purpose of “spreading the word” is served without prosecution.

Conceding this, Doug argues that criminal prosecutions will cause the media to harp on the story, thus spreading the word farther, longer and louder.  This is probably accurate as well.  But it doesn’t bear at all on the issue of whether “spreading the word” is a legitimate reason to prosecute at all.

Radley Balko posted about Raquel Nelson on Huff Po, who was prosecuted and convicted for jaywalking with her children, one of whom was killed when struck by a car.

Nelson buried and grieved for her son. But on May 14, the Atlanta Journal-Constitution ran a long story under the headline, “Jaywalkers take deadly risks.” The article mentioned Nelson and her son, pointing out that she hadn’t been charged with any crime. Three days later, the Georgia Solicitor General’s office charged Nelson with the three misdemeanors.

Nelson was convicted last week, and she’ll be sentenced on July 26.

Is this the sort of prosecution that we should desire, encourage, so that mothers become aware that jaywalking can be dangerous?  It’s certainly something that anyone crossing a street should consider, especially with children in tow.

But Raquel Nelson lost her 4-year-old son.  Was society’s need to hear the story sufficient to justify putting this grieving mother through a prosecution?  Was her walking across the street with her kids, despite the absence of a marked cross-walk, really so blameworthy that this had to follow?

Foremost in the decision to wield that incredibly blunt instrument, to prosecute, is the purpose served for the individual.  If there is either too little blameworthy conduct, or too little purpose served by obtaining a conviction, then no one should wield the bludgeon just because it’s there and they can.  And no one should ever do so to serve some disconnected societal purpose for which the criminal law was never intended.

It seems these days that there’s an interest group dedicated to eradicating any and every threat of harm that could befall a child.  To those who believe that their concern demands action, the idea that someone must be punished is an article of faith, and the idea that the world must know of the horror is overwhelmingly obvious and necessary.  Criminal law will then become the captive of the latest craze or concern, a handy weapon to combat every potential fear and threat at the expense of some poor, grieving parent.

Are we ready to sacrifice the individual, already suffering far more than any punishment the system could impose for the terrible offense of making a mistake, for the good of “spreading the word” and maybe saving another child?  That’s not the way the system is supposed to operate, but it seems to be the trend we’re facing.

Just pray you never make a mistake.

When Avvo first came on the scene, its claim was to assist the consumers of legal services by providing ratings for lawyers, thus aiding intelligent decision-making and enlightening the legal consumer community.  The beef, at the time, was whether their rating system was valid.

As often happens with start-up high tech companies, there’s been a quiet shift in the business model.  The key to internet businesses that don’t sell a product is advertising, and the key to advertising is eyeballs.  It wasn’t too long before Avvo went into the free lawyer answer business to draw in people who wanted answers to their quasi-legal questions, but were too cheap to pay for a lawyer. 

It didn’t seem to matter that the answers were crap (as were the questions), as this was just a side-line, a come-on.  Avvo was a lawyer (and later doctor) rating service.  That was its claim to fame, its raison d’être.  More importantly, that was Avvo rationale for gaining access to lists of lawyers nationwide, and to overcome the issues concerning its rating service being used by lawyers to tout themselves.

When Avvo brought on its new VP of Marketing, Leigh McMillan, it gave me a reason to take a stroll over to Avvo and see what was happening.

SEATTLE, WA – July 21, 2011 – Avvo (www.avvo.com) the largest legal- and health-related Q&A website, where consumers get their questions answered by a community of rated lawyers and doctors,  welcomes Leigh McMillan as the company’s first Vice President of Marketing. McMillan will oversee Avvo’s marketing and business unit management, reporting to founder and CEO Mark Britton.

Whoa.  When did Avvo go from being a lawyer rating service to “the largest legal-related Q&A website?”  Not that Avvo Answers isn’t a part of the whole, or that Avvo’s not the largest (I couldn’t say, but wouldn’t be at all surprised that Avvo is the largest), but when did its focus shift from lawyer ratings, the justification for its existence, to a dubious (the words “utterly worthless” may be overstating the problem, though not by much) scheme to make the world more legally ignorant than when it began?

When Avvo opened its doors, I had a  long talk with one of its co-founders, Paul Bloom, who has since moved on to other ventures.  Since then, I spent time with CEO Mark Britton, where we argued over various foodstuffs the merits of Avvo ratings and its value to consumers.  I like Mark and Paul, and all the other Avvo guys as well, despite whatever misgivings I have about the service.  But at no time did I think of Avvo’s hallmark as being other than its lawyer ratings.  It appears that I’ve missed the shift.

So is Avvo a lawyer rating service that has its unbearably bad Avvo Answers as a loss-leader?  From the press release, no.  It’s not a matter of the tail wagging the dog, but that the tail is the dog.  Avvo’s primary function is to promote stupid answers to stupid questions.

In another press release, Avvo talks about its “weed-like growth.”  Weed-like indeed.  The internet has inundated society with monumentally poor legal thought and advice, leaving the public worse for having made the effort.  Avvo has chosen to dedicate itself to the creep of ignorance rather than to contribute to a better, more accurate, understanding of the law.

To the extent that Avvo’s claim to legitimacy relied upon the merit of its lawyer ratings, it’s given that away.  Avvo could have been part of the solution.  Instead, it’s taken the worst element of its business model and elevated it to its primary function.  No wonder Avvo’s growing like a weed.  Too bad it didn’t choose to bloom like a flower.

In furtherance of its expose of law schools, the New York Times’  Room for Debate offers a diversity of views on the question, The Case Against Law School, Should the standard three years of law school, followed by the bar exam, be the only path to a legal career?

The cast of characters:

Debaters

• 
  

  Reduce Credit Requirements

  
  

  David Van Zandt, president, The New School

  
  
• 
  

  Allow Anyone to Take the Bar

  
  

  George Leef, Pope Center for Higher Education Policy

  
  
• 
  

  It’s Not a Trade School

  
  

  Kevin Noble Maillard, law professor, Syracuse University

  
  
• 
  

  Improving, Not Overhauling

  
  

  Rose Cuison Villazor, Hofstra University Law School

  
  
• 
  

  Bring Back Apprenticeships

  
  

  David Lat, editor, Above the Law

  
  
• 
  

  Learning to Think Like a Lawyer

  
  

  Geoffrey R. Stone, University of Chicago Law School

  
  
• 
  

  A Priceless Degree

  
  

  Linda Greene, law professor, University of Wisconsin

  
  
• 
  

  Three Years, Better Spent

  
  

  Bryan A. Garner, editor in chief, “Black’s Law Dictionary”

Yes, that’s our  David Lat in there, looking like he’s about to do his haftorah.

I would like to tell you how fascinating the debate is.  I really would, but I can’t.  It’s the same old argument, with lawprofs certain of their merit of their paychecks, while anyone not looking to publish in law reviews believing that law schools are (1) a massive waste of money, (2) ineffective at training students to become lawyers, and (3) uncontrollable. 

Bryan Garner, the editor in chief of Black’s Law Dictionary, says this:

Reforming legal education – an urgent societal need – is a glacial process. And the glacier has been flowing the wrong way. Entrenched pedagogical mediocrity infects even the best law schools, and almost all the schools simply mimic the anemic methods of the schools just above them in the rankings. But the key to better health has little to do with changing the time requirement: three years is about right.

The problem is not that students are spending too much time in law school. It’s that they are not mastering essential skills.

The biggest failure at most law schools is the dearth of seriously good skills courses, especially training in legal writing. Law schools generally reward scholarship, not teaching excellence, and there is a built-in bias against one-on-one teacher-student time. Too often the only feedback a student gets from a professor is a single letter grade after the final exam. Now add this: of all law-school courses, legal writing is both the single most time-intensive subject and the least respected.

If Bryan, something of a hybrid between the scholar and lawyer, says law schools fail, that’s an indictment.

Lat, on the other hand,  opines that the answer is to get out of Dodge and bring back apprenticeships:

The core of the legal curriculum is covered in the first year of law school. One could easily imagine law school, in terms of formal classroom instruction, lasting two years instead of three and costing two-thirds as much.

After two years, graduates could start working as apprentices for practicing lawyers and being paid, albeit modestly, perhaps like paralegals or medical residents. The bar exam could be administered at the end of an apprenticeship, or in multiple parts at different points in the process, like the medical board exam. Successful completion of an apprenticeship and passage of the bar exam would qualify an individual as a lawyer.

Of course, the question remains whether under an apprenticeship regime, Lat would have ever become a lawyer, since obsessions with the undergarments of Article III judges doesn’t fit well with most practice niches.  On the other hand, given Lat’s enormous popularity (not to mention credibility, as the Times ask him to debate and didn’t even give me a jingle), maybe far more people are fascinated by judicial hotties than I am.

On the flip side, consider the position taken by Linda Greene, the Evjue-Bascom Professor of Law at the University of Wisconsin, Madison.

My own decision to attend law school was based in part upon my perception, still shared by those who rush our doors, that a legal education provides an unparalleled opportunity to understand the intersection of private and public power, to explore the rationale for the organization of human society and to participate more knowledgeably and effectively in every aspect of human endeavor. A fine legal education provides an opportunity both to grasp the current arrangement of our legal order and to understand laws’ limitations and shortcomings.

That education also deals with the relationship between law and society as well as the manner in which law is both used and transformed in action. Whether the questions involve constitutional protection for undocumented children or cloning or climate measures or the parameters of humanitarian intervention or the ownership of the resources beyond our gravitational field, the best in legal education prepares its graduates to participate in the discourse and arrangements necessary to such complex concerns. It is true that the cost of this quality education, all in, may exceed $200,000. The value of a new generation of law graduates prepared to take on these challenges: Priceless.

Now doesn’t that sound wonderful?  If only it meant you could actually practice law for your $200,000. 

Between  Mark Herrmann’s thoughts on how he, as an inside guy, perceives the old elevator pitch, and  Kevin O’Keefe’s advice that one’s LinkedIn summary ought to be one’s elevator pitch, it got me thinking about it.  The elevator pitch.

It was probably ten to fifteen years into practice before I ever heard the phrase uttered.  From what I understand, it’s the most basic element of “rainmaking” in law, the ability to sum up who you are, what you do and why anyone should want to hire you, in the course of an elevator ride.  The closest I ever came to offering such a pitch was when someone at a party asked me what I did. 

But then, it wasn’t directed at getting their business, since not too many people at the parties I attended were sufficiently serious criminals, likely to face prosecution.  I hung out with the wrong crowd.  When I made my occasional trek to where my clientele like to hang, they already knew who I was and no pitch was needed.

The crux of the elevator pitch is to distinguish oneself in the few seconds between the question being asked and the questioner’s complete loss of interest.  If the pitch doesn’t grab someone right away, it’s lost.  Get off on the next floor as you’re not going any higher.

As my practice transitioned from drug conspiracies into financial and corporate crime, I’ve given the elevator pitch a good deal of thought.  The potential range of clients expanded orthogonally, and unlike the guys hanging out at a bar called Zapatas in Fort Washington or on Grand Street in the Bronx, the suits didn’t have a clue who I was.  They knew from biglaw names, and would always ask me what firm I was with upon learning that I was a lawyer.  I got a blank stare when I said that it was my own firm, before they turned away to talk to someone else.

Over time I learned.  My “of counsel” association with firms in other places gave me a modicum of credibility to a group inclined to appreciate quantity over quality.  But that’s just a threshold question, allowing you to move forward to the gist of the pitch.  The discussion about how solos and small firms beat the crap out of  a biglaw partner who never touches the case and work being done by snot-nose associates with slightly less experience than a fruit fly is for another day.  The elevator ride doesn’t take that long.

The notion of “pitching” someone has never sat well with me.  It smacks of glibness and self-promotion, and for those of us who prefer to wear a suit and tie rather than hot pants, it’s unseemly.  But if someone asks, then what are you going to do?  There was a time, many years ago, when I used to tell women in bars that I bred armadillos for a living.  “I like to bring a little happiness into their lives,” I would say.  It was cute, and beat the heck out of telling them I was a lawyer, like every other guy in the bar.

The same problems exists today.  What can I say in 30 second that would distinguish me from the tens of thousand of other lawyers doing pretty much the same thing, without making me seem like a self-promoting slut?  What can I say that will be sufficiently interesting to grab someone’s attention, and brief enough to get through it before we reach the penthouse?  What can I say that’s true.  What can I say that won’t conflict with my views about personal integrity?

As Kevin explains:

You only get one chance to make a first impression. What do you want people to walk away thinking about you?

I’ve never been any good at the elevator pitch.  I can’t imagine I ever will. 

The kidnapping, murder and dismemberment of 8-year-old Leiby Kletzky is a story of truly horrific proportions.  The accused, Levi Aron, is likely a monster.  And the pressure on a lawyer to defend a monster in such a case is almost unbearable.  Almost.

Levi Aron’s lawyer, Gerard Marrone, announced that he is withdrawing from the Aron defense.



In one sense, I can sympathize.  The nature of the crime, being against a child, would have precluded me from taking the case in the first instance.  I have the ability to pick and choose my cases, and I would not have chosen this one.  But then, had I chosen this one, I would never quit.

According to Eyewitness News reporter N.J. Burkett, Marrone says “he simply could not, in good conscience, continue to represent” the defendant. 

The allegations were too horrific and it’s not something I wanted to be involved in.

“A little piece of me died when I got this case,” he said.

That’s when the gut-wrenching tragedy hit me on a whole new level. Criminal defense attorneys are tough guys; it comes with the territory. I’ve never seen someone in that line of work so openly repulsed by his client that he’s forced to not only drop the case, but to drop all legal pretense and publicly react on a strictly human level: I’m too horrified by this man to defend him. 

What did Marrone see in Aron’s eyes that shook him so badly? Those were the last eyes Leiby Kletzky ever looked into. To think that a perfectly innocent child had to spend the final moments of his life under that cold, empty stare makes me doubt the very order of the universe. So I completely understand what Marrone meant when he said, “Before I got involved I believed in the divinity of human beings, and when I got involved I questioned the divinity of human beings.”

Of course he had to give up the case. As parents, how can we carry on raising our children if we don’t harbor even the faintest hope that there’s some meaning behind human life? I admire Marrone’s honesty and his decision to put his children first.

In a recent post, I noted that the prosecutor’s solution to inane application of laws was that they were people of intelligence, good will and sound judgment, who would never prosecute a person for some absurd offense.  Yeah, well, not all prosecutors feel the same way.

Take, for example, the prosecution of a guy who was thought to have burgled his own home.  While they couldn’t make the burglary charge stick, that didn’t stop them from going after him for resisting arrest.

On March 15, 2009, a neighbor reported seeing a black man kick in the front door of the home at 111 Finley Street. When police arrived on scene, they repeatedly told 30-year-old Marco Saucedo, whom they believed to be the burglar, to come out of the home. Saucedo, who doesn’t speak English, did not comply and police entered the home, finding that he had locked himself in the bathroom, according to county prosecutor Gary Taylor. Taylor on Tuesday played dashboard camera video for the jury of five men and a woman in County Court-at-Law No. 2 Judge Derek Flournoy’s courtroom.

“Now you’ve got nine officers here. Come on out,” Lufkin Police officer John Davis says on the video, followed by the sound of knocking.

“Come on out with your hands up,” the officer says.

According to testimony, the officers sprayed pepper spray under the crack in the bathroom door and Saucedo came out of the bathroom and resisted arrest, at which point police shot him multiple times with a pepper ball gun. Police then tackled Saucedo, who was fighting being taken into custody, to the living room floor, Davis said. In the process Saucedo suffered a large gash to the top of his head, according to testimony in his trial Tuesday.

The good news it that they used a “pepper ball gun,” rather than spraying the bathroom door with hollow point rounds.  But isn’t it enough that a guy, in his own home, in his own bathroom, had the cops enter his home, spray him and end up with a gash in his head?  Nope.  Prosecutor Gary Taylor found it critical that he be punished for being uncooperative.

For a bit of balance, it’s worth noting that Judge Flournoy had this to say at sentence :

“I haven’t heard from you and I have no idea why you didn’t speak. That causes me some trouble. I don’t agree with the notion you are a victim in this case,” Flournoy said. “I think your actions put you and the officers in harm’s way. This could have been easily avoided.”

So the homeowner’s actions within his own home put the officer’s in harm’s way?  Something to certainly bear in mind.

And then  there’s the case of two 14-year-old Jersey boys, one of whom stuck his naked butt in two 12-year-old kids’ faces, resulting in their being branded lifetime sex offenders.  The appellate court, upholding this because the law left them no other choice, noted its absurdity but was nonetheless constrained by Megan’s Law.

Call it bullying or call it horseplay. Either way, a state appellate court panel says roughhousing with a sexual connotation by a pair of 14-year-old Somerset County boys was a crime that requires them to register as sex offenders for the rest of their lives.

In a decision handed down Monday, the three-judge panel acknowledged the severity of its decision, but said it was bound to uphold the law. “We are keenly aware that our decision may have profound lifelong ramifications for these two boys as well as others similarly situated,” Judge Jose Fuentes wrote.

One of the boys, whose case went to trial, said he had sat on the faces of a pair of 12-year-old schoolmates with his bare buttocks in November 2008 “cause I thought it was funny and I was trying to get my friends to laugh,” he told a family court judge.

But an act is considered criminal sexual contact if it is done for sexual gratification or to degrade or humiliate the victim, and punishable by lifetime registration — even for juveniles — under Megan’s Law, which requires a person convicted of a sex crime against a child to notify police of changes of address or employment.

The 14-year-old definitely needs a damn good smack for engaging in this conduct, but lifetime sex offender status?  The prosecutor wanted it and got it.  He must have known it would mean they would be subject to Megan’s Law, destroying their lives for this teenage stupidity, but no doubt felt that he was protecting society from their perpetual threat of naked tushies and dumbass schoolboy pranks that would be best fixed behind a woodshed.

We need not fear the unintended consequences of our law-a-day reaction to outlier circumstances, producing absurd and bizarre results, for we have prosecutors who will exercise discretion to not allow this craziness to happen.

Or not.

Why get our panties in a twist over the absurd application of law when we have prosecutorial discretion to save us?  Because of cases like these. 

There was a time when juries were routinely sequestered to protect them from influence outside the courtroom.  But sequestration is expensive, and so the courts decided to pretend it wasn’t necessary, because nobody would ever tell a juror something they shouldn’t hear, and no juror would disregard the judge’s instruction not to pay attention to outside influence.

Yet J. Michael Flanagan has a concern. In the upcoming trial of Conrad Murray, the doc who personally “oversaw” Michael Jackson’s medical regimen,  Flanagan has requested of Los Angeles County Superior Court Judge Michael Pastor that the jury be locked in the cloisters. Why?

A lawyer for Michael Jackson’s personal physician said Wednesday that in light of the uproar surrounding the verdict in the recent Casey Anthony case, jurors in the doctor’s upcoming manslaughter trial should be sequestered round-the-clock, or at least “during the hours Nancy Grace is on TV.”

The attorney for Dr. Conrad Murray told a judge he was concerned that biased commentary of the televised proceedings, set to begin Sept. 8, would affect the panel’s ability to render a fair verdict in the Jackson’s death.

Whether Nancy Grace has invented some insipid yet derogatory name for Dr. Murray is unknown, but that her ignorant yet virulent spewing of such lawyer-like gems as, “where there’s smoke, there’s fire,” might undermine the potential for a thoughtful verdict. 

The judge’s reaction was curious:

The judge said the defense was free to file a formal motion for sequestration, but that he did not feel it was necessary and that in any case, the financially strapped court system could not afford it.

Pastor, who said the O.J. Simpson case was the last time a county judge had sequestered a jury, said he would order jurors be kept away from the general public inside the courthouse but believed it “unhealthy” for panelists to be isolated for the entire trial, which is expected to last six weeks.

Sure it’s costly.  Sure, jurors hate sequestration.  But reference to the last time it happened, the O.J. trial, reminds us of why it serves a larger purpose.  While lawyers are uniformly disgusted by that fact that the media puts people like Nancy Grace on air to poison the minds of anyone who hears her, it’s clear that someone out there thinks she’s the ginchiest.  In fact, there are a great many who think that people who spew ignorant vitriol speak the truth.

There was a reason why the O.J. jury was sequestered, as there was no doubt that the case would generate massive media coverage, and that there would be a coterie of lawyers dying to handicap the trial.  After all, trying to make trials into sporting events makes for great television ratings.  The only thing lacking is enough trials that anyone cares about to keep a cable network in business.

This trial, however, is likely to get the star treatment.  The death of Michael Jackson was huge, and the trial of his doctor will endure the intense focus of an O.J.  Or a Casey Anthony.

We can’t stop networks from giving air time to people like Nancy Grace.  We can’t stop people like Nancy Grace from doing everything in their power to make people stupider for having heard their shrill voice.  That’s the nature of a free press, and the Constitution doesn’t command it be limited to people who enlighten rather than disgust.

But the court can prevent the jurors from hearing, whether directly or second hand, the things that make a fair trial impossible.  As the air fills with noise, almost all of which will conflict with the jurors’ duty to render a verdict solely on the evidence admitted in court, and to follow the instructions of the judge rather than the rantings of pundits of dubious merit, the minds of jurors rot. 

The phrase we use, that the bell once rung cannot be unrung, remains as important as ever.  Once a juror hears the outrageous, ridiculous, utterly wrong nonsense that is used to fill the air time between commercials, they can’t get it out of their heads.  Whether it influences them is never clear, but the potential for influence is omnipresent.  They should not be influenced, at all, by this outside noise.

Nancy Grace has become the poster girl for a diseased view of the law in this country.  She’s not the only TV lawyer selling nonsense to the public, and she’s not the only voice from which the jury needs to be protected.  She’s just one of the loudest and most awful.  And she has made a career of doing everything in her power to screw with the public’s understanding of the legal system.

It would be nice if the defendant could be assured that jurors wouldn’t be influenced by this media parlor trick, but he can’t.  He’s entitled to a fair trial, and Grace and her ilk are dedicated to making sure he doesn’t get one.  This may be a very sad reflection of the world today, and the manner in which high profile criminal trials have to be conducted for as long as there are networks happy to sacrifice propriety in the name of ratings, or lawyers who want to make their bones by leading the townfolk with torches and pitchforks, but that’s where we are.

Sorry that it’s going to cost Los Angeles County a boatload of money to assure that Conrad Murray gets a trial untainted by the likes of Nancy Grace, but as long as we’re a society that watches this shrew, there is no other choice. 

H/T Bad Lawyer