When Lanny Breuer was a baby prosecutor at 1 Hogan Place, the side entrance to the Manhattan criminal courthouse, which was renamed in honor of the “legendary” New York Count District Attorney, Frank Hogan, no one could have suspected that he would one day end up in Washington, D.C. as the Assistant Attorneys General of the United States of America, in charge of the criminal division.

It’s a big job.  It’s a powerful job.  Lanny made good.

He started working for Bob Morgenthau in 1985, a few years after I started working against Bob Morgenthau.  It was the year that Bernie Goetz shot some black kids on a subway train. Lanny had nothing to do with that, as far as I can remember. 

Between gigs putting people behind bars, Lanny became a partner at Covington & Burling doing (ta da) white collar criminal defense.  His wiki page explains:

Breuer was best known for his work representing the subjects of Congressional investigations. He represented the University of California in an investigation of Los Alamos National Laboratory, Moody’s Investor Service in the wake of Enron’s collapse, and Halliburton/KBR in a hearing conducted by the House Committee on Oversight and Government Reform.

Breuer made headlines when a friend from the White House, Sandy Berger, asked for representation after an investigation disclosed Berger’s theft of classified documents from the National Archives.

These are guys just like the ones he fought to put in jail as a New York ADA.  Except they’re wealthy and powerful, and don’t smell bad because they’ve spent the night in the holding cell.  And the President Obama plucked Lanny from his leather office chair to head up the DOJ criminal division, because the president wanted change.  And Lanny talks about change.

As I and others have detailed elsewhere, the Justice Department has taken a series of far-reaching steps in the past two years to ensure that all federal prosecutors consistently meet their disclosure obligations.   These measures – such as providing guidance to federal prosecutors on gathering and reviewing discoverable information and making timely disclosure to defendants, or instituting a requirement that all federal prosecutors take annual discovery training – are important steps forward.   And I think it’s fair to say that, as a Department, we are in a better place today than we were two-and-a-half years ago.   And I suspect that is true for many DA’s offices across the country as well. 

Justice used to unethical back when those other guys ran the show, but not now with Lanny’s hands on the wheel.  So why isn’t everybody applauding?

Certain defense lawyers nevertheless continue to want to try and turn honest mistakes into instances of misconduct.   This kind of gamesmanship is unfortunate.   The steps we have taken go further than what the Supreme Court requires.  And they go well beyond what any prior Administration has done.   That’s a fact.   Do we need to remain vigilant?   Absolutely.   At the same time, together, we cannot – and I know we will not – shy away from taking hard cases, or otherwise shrink from our obligation to investigate and prosecute criminal activity without fear or favor, because of the possibility that an opportunistic defense lawyer will try and make hay out of an honest mistake.

It’s those nasty, opportunistic defense lawyers, trying to make hay out of the honest mistakes of prosecutors.  It’s not misconduct.  They would never engage in misconduct (unlike the AUSAs working for the last administration, who were evil and unethical scum with a leader like Lanny at the helm). 

But to characterize “certain ‘opportunistic’ lawyers” who challenge prosecutorial misconduct as “gamesmanship” Lanny?  Bob Morgenthau would never use such harsh language.  He might say it was an “honest mistake,” but never gamesmanship.  He would know that defense lawyers can’t assume away error as accidental, and that the failure to abide constitutional rights isn’t the sort of thing defense lawyers can or should ignore.

Didn’t you learn anything from your days at 1 Hogan Place?  Didn’t you learn anything sitting in your leather chair at Covington & Burling?  It’s our duty to “make hay” out of prosecutorial “mistakes,” and “certain defense lawyers” won’t shirk from our obligations either. 

That’s a fact.

Upon reading the  Hinky Meter post explaining the details of why the testimony of the prosecution’s witness, Sgt. Kevin Stenger, that Casey Anthony visited a page on a website about chloroform 84 times was false, I was clueless.

When hearing of this discrepancy I and most others were left with the impression that CacheBack was wrong and NetAnalysis was correct. Furthermore, that the discrepancy came out at trial seemed to me to be a public-relations nightmare for the Cacheback product. As it turns out, both programs produced erroneous results. But worse, OCSO appears to have known about the discrepancy and did not follow-up with the authors of either CacheBack or NetAnalysis. Continue reading →

The foundation of the argument, as I’ve been told, is that content is perpetually replicable, so that taking a copy doesn’t deplete the stash. It’s not stealing, because the “owner,” to the extent anyone can own an idea, still has his content.  The idea has superficial appeal.

But it’s wrong.  And getting caught hacking into a system from a closet at MIT, where no one permitted you to go, ought to clarify, for those whose political views cloud their grasp of the problem, that Aaron Swartz went too far.

From the New York Times :

Aaron Swartz, a 24-year-old programmer and online political activist, has been indicted in Boston on charges that he stole more than four million documents from the Massachusetts Institute of Technology and JSTOR, an archive of scientific journals and academic papers. (Read the full indictment below.)

In a press release, Ms. Ortiz’s office said that Mr. Swartz broke into a restricted area of M.I.T. and entered a computer wiring closet. Mr. Swartz apparently then accessed the M.I.T. computer network and took millions of documents from JSTOR.

If Aaron Swartz could have gotten his hands on copies of JSTORs content without having to sneak into a closet, it would have been wrong.  It charges for its content.  It’s allowed to charge for its content.  The content isn’t free for the taking.

Swartz, apparently, thinks it should be.

Demand Progress said on its site that it appeared Mr. Swartz was “being charged with allegedly downloading too many scholarly journal articles from the Web.” It quoted the group’s executive director, David Segal, as saying, “It’s like trying to put someone in jail for allegedly checking too many books out of the library.”

According to the indictment, the plan was to download whatever he could get his hands on so that they could be offered free to the world.  Swartz would take what JSTOR had to sell and give it to all.  Robin Hood of the internet.

From the technical point of view, this is a classic, straightforward violation of the Computer Fraud and Abuse Act, 18 USC 1030, with the fact that he had to physically sneak into a closet to gain access to the wires.  Ordinarily, there’s no need to physically break in to manage to digitally break in, putting an IRL cherry on top of the prosecution’s case.

End of story?  Apparently not. From Wired :

“It’s even more strange because the alleged victim has settled any claims against Aaron, explained they’ve suffered no loss or damage, and asked the government not to prosecute,” [Demand Progress Executive Director David] Segal said.

JSTOR doesn’t go quite as far in its statement on the prosecution — though there are clear hints that they were not the ones who wanted a prosecution, and that they were subpoenaed to testify at the grand jury hearing by the federal government.

We stopped this downloading activity, and the individual responsible, Mr. Swartz, was identified. We secured from Mr. Swartz the content that was taken, and received confirmation that the content was not and would not be used, copied, transferred, or distributed.

The criminal investigation and today’s indictment of Mr. Swartz has been directed by the United States Attorney’s Office.

When asked about this, Christina Sterling, a spokeswoman for the U.S. Attorney’s office said, “I can’t speak specifically about this case, but fundamentally speaking, the U.S. Attorney’s Office makes own independent decisions regarding prosecution based on the merits of a case.”

It appears that Swartz, having gotten nailed during his attempt to steal the content of JSTOR,  had his hand smacked and, feet a’shuffling, promised not to do it again.  JSTOR was satisfied that the matter was resolved.  The Feds, on the other hand, were not.

While criminal prosecution does not personally belong to the aggrieved party, despite the wails of victims’ rights advocates who think they ought to do their own sentencing, they are usually shown a great deal of deference in the foundational determination of whether a prosecution is needed. 

Assuming the facts as related are accurate, there is little doubt that Swartz was a very bad boy, and that his conduct was precisely what the CFAA was intended to criminalize.  That some hold dear the belief that theft that doesn’t deprive someone of physical possession isn’t really theft can dispute the merit of the CFAA all they want, but had Swartz gotten away with it, he would have deprived JSTOR the revenue it would earn from its service.  That’s real.

So why would the Feds ignore JSTOR’s benign stance toward Swartz, having thwarted the plan and made the decision not to aggravate those who don’t think Swartz is such a bad guy?  The most likely motivation is that they’ve neither forgotten nor forgiven Swartz for the PACER caper :

The FBI ran Swartz through a full range of government databases starting in February, and drove by his home, after the U.S. court system told the feds he’d pilfered approximately 18 million pages of documents worth $1.5 million dollars. That’s how much the public records would have cost through the federal judiciary’s pay-walled PACER record system, which charges eight cents a page for most legal filings.

Despite the FBI’s best efforts, they weren’t able to figure out a way to nail Swartz for doing what he was allowed to do, just so much better than anyone thought it could be done.  Despite some very real and very serious efforts to get him, the investigation busted and nothing came of it.  Until now.

By no stretch of the imagination do I believe that Swartz’s attempt to download the JSTOR content was acceptable or lawful.  He’s no Robin Hood, and the ideologue’s belief that digital content should be free for the taking is nothing more than religious pap, a belief that fails to bear out under rational scrutiny.

At the same time, this prosecution seems to be nothing more than a vindictive act by the government, given JSTOR’s agnostic, at worst, stance toward Swartz.  They worked it out and the story should have been over.  It’s just that the government can’t let it go, given that they finally have a case against a targeted individual.  Vindictive prosecution, no matter what the underlying wrong, is a due process violation.

Amazingly, the government has managed to turn the bad guy into the victim, and itself into the bad guy.  As for Swartz, he should stay out of closets.

Update:  On January 11, 2013, Aaron Swartz, still under prosecution by the United States of America, committed suicide at the age of 26.  This eulogy by Cory Doctorow speaks volumes. A very sad loss.

Too often, the reaction to reports of police misconduct is condemnation of all cops.  Those who have been harmed, or feel hatred, will impugn every one of them, and every thing they do.  It’s understandable, and maybe deserved in the way that even “good” cops stand idly by as bad ones do as they please, but it tends to skew our understanding and reinforce the one dimensional image of the evil cops.

The problem is that it’s not that simple.  The worse problem is that from time to time, we need police to assist us, and they do.  The same cop who does something truly awful one day will save a child’s life the next.  The point is to eliminate the former and appreciate the latter.  With that in mind, it’s worth noting when a police officer comes out and takes a stand that runs contrary to the norm.

The June edition of American Cop Magazine has an editorial arguing in favor of citizens videotaping cops.

Aren’t we known for saying, “If you’ve got nothing to hide, what are you worried about?” This same mentality should also apply to us. If we’re doing our job professionally and within the law, what’ve we got to worry about if someone’s filming us — especially if they’re doing so without getting in our way? If we decide we don’t like being filmed and take our attention away from what we’re doing, we are the ones delaying ourselves, not the person filming us. If the person is making snide comments, ignore it unless the comments are inciting a riot, but there again it will all be caught on film, right?

Should we ever expect to have a right to privacy when we’re in public? I don’t think so; cops are public employees. We can record comments and statements made by suspects/arrestees sitting in the back of our police cars where there’s no expectation of privacy. Thus, there should be an even lower standard of privacy outside the police car. We routinely record and surveil citizens without their permission, so why should there be a separate set of rules regarding them recording or filming us? If a bad guy doesn’t have to consent to being filmed, cops shouldn’t either. Should Internal Affairs be required to get consent to film or record from a cop suspected of criminal or unprofessional conduct?

Simplistic perhaps, but direct: if they’re doing nothing wrong, so what?  The argument has been made before, with the reaction that citizens don’t understand the job of police officer, and their expectations and demands, upon seeing its performance happen, place unreasonable and dangerous limitations on a cop’s performance.

The editorial writer, unnamed from what I can tell, doesn’t seem to care (in similarly clear language):

I think back at the number of times I was made aware I was being taped and I can’t recall ever giving a rat’s ass about it. I was also never hauled into IA to watch a video of me misbehaving either. So maybe those of us getting our skirts up over our heads about this should take a long hard look in the mirror before crying foul.

The reality is, cops have very public jobs, like it or not. We’re expected to behave professionally even when faced with overwhelming challenges. The public generally knows we’ve got a tough job, but no one is forcing us to do it. Some people have an axe to grind with police tactics, there’s no changing this mindset, and they’ll do their best to catch us making mistakes, misbehaving, abusing our authority or losing control. It happens sometimes to the best of us. It’s best to admit our mistakes and take our lumps.

What this reflects, from my perspective, is the cultural shift that needs to happen before any real change is going to turn the perception of police as an invading force into trusted protectors.

This editorial isn’t a sappy, hand-wringing, “what about the rights of poor citizens” sort of thing that might be written by a criminal defense lawyer, or a victim of police misconduct, but rather what appears to be a regular cop’s way of expressing that police need to “man up” and stop their whining about being filmed.  It acknowledges misconduct, which is more than can be said of many judges, though it doesn’t seem to recognize its seriousness.  “Admit our mistakes and take our lumps” hardly seems to cover some of the more heinous things captured on video.

Still, in its simplicity, it reflects a change at the baseline of at least one police officer’s view of where they fit into society.  They are public employees. They have a tough job, but the job is to do it “professionally,” even when faced with “overwhelming challenges.”  It may not be clear what he means by “professionally,” but it is clear that he doesn’t think concealing it from the public, prevent it being documented on video, is the way to protect cops from scutiny.

What makes this editorial fascinating is that it’s not a Pollyanna vision of police work, and I would suspect that he would be quite willing to argue that half of what we see as misconduct is proper police procedure, the sort of argument that makes us nuts.  And yet, he’s willing to bear up to the scrutiny of video and hash it out later.

It’s a gutsy editorial, and a move in the right direction.  And it’s the right thing to do.

H/T Radley Balko

Lawprof Jonathan Turley, of late  with four wives and five clients, has been the target of a neo-con nutjob. 

Two of my clients in the pilots litigation flagged an article by conservative Republican activist and attorney Debbie Schlussel reporting that I am funded by the Bin Laden family and using the Brown family as a front for an Islamic radical agenda.

The article is entitled “EXCLUSIVE: “Sister Wives” Lawsuit is Front for Islam, Sharia Bigamy; Lawyer Got Big $s From Islamic Terrorists” published on July 13, 2011. In addition to the false headline, the article contains repeated false statements, including but not limited to:

“Make no mistake, Turley–sleazebag lawyer for Islamic terrorists, including Islamic Jihad founder and convicted terrorist, Sami Al-Arian–is filing this one for his Muslim friends and patrons and using these bozos from Utah as his cover for what he’s really seeking here. Reportedly, the Bin Laden family paid for Turley’s failed defense of Al-Arian, just as the Bin Ladens reportedly paid for the Al-Arian kids’ expensive college and grad school educations.”

And so Turley’s having a great laugh over this insanity?  Nope.  No, he’s gone from big time high profile lawyer to defensive, oversensitive academic.  Some wacko wearing a tin foil hat said mean things about you, Jon.  Oooh, poor baby.

The question is whether people of good faith should simply walked away from such libelous and malicious statements or whether we have a duty to bring such people to the courts for judgment. A defamation action against Ms. Schlussel may serve the public as a pro bono effort in maintaining the minimal standards of civility and accuracy in public debate. I will be discussing such an action with friends and colleagues.

The article remains posted and Ms. Schlussel has not issued a retraction or an apology, as requested.

Since you asked, here’s my two cents.  There is a whole wide world of nutjobs out there who will say and write mean things of all stripes.  Some are worthy of concern, as they come from credible people who raise credible claims.  Then there are the Debbie Schlussels of the world. 

This is a gift.  This is a toy for you to play with, to enjoy and to ridicule unmercifully.  How the hell can you take this seriously and get upset for even a second over something so ridiculous?

DO NOT SQUANDER THIS OPPORTUNITY!!!

Do you think anyone, a…n…y…o…n…e, of above-brick-like intelligence isn’t laughing at this one?  Have them laugh with you, not at you.  For you to get your panties in a twist over this is not merely insane, but suggests that you feel threatened by these assertions.  Do you?  Is this closer to the truth than I suspect?  Are you interested in sharing some of that bin Laden money?  Only kidding, unless it’s true.

The nature of high profile work, especially in an area of such high emotion and politicization, is that nuts are going to come out of the woodwork and smear you with the craziest stuff.  Didn’t you realize this when you started the suit?  This is how it happens, and it’s a lot worse when the New York Times writes something incredibly wrong and stupid than when some neo-con nutjob does so.

Get over it.  Laugh at it.  Enjoy the gift that’s been handed to you on a silver platter and have some fun.  Whatever you do, resist the lawprof urge to get all upset and demand retractions and be all lawyerly.  It won’t help. It won’t happen and you just look foolish for trying.

And for God’s* sake (*your mileage may vary), don’t sue for defamation.  It’s a lot cheaper and more effective to down a PBR and thank the Lord you ain’t her. Unless, of course, she’s got a point, in which case take her seriously, give the rest of us a reason not to ridicule her and raise a doubt in everyone’s mind that Turley has something to fear.  But if not, don’t be a weenie.

The New York Times, which has suddenly discovered that law schools are a rich source of story fodder and, given enough time, will ramp up its production to the point where it has a firm grasp on the subject matter, offers a lengthy article about New York Law School’s outgoing dean, Richard Matasar.

On the one hand, he’s a hero:

For more than a decade, Mr. Matasar has been one of the legal academy’s most dogged and scolding critics, and he has repeatedly urged professors and fellow deans to rethink the basics of the law school business model and put the interests of students first.

“What I’ve said to people in giving talks like this in the past is, we should be ashamed of ourselves,” Mr. Matasar said at a 2009 meeting of the Association of American Law Schools. He ended with a challenge: If a law school can’t help its students achieve their goals, “we should shut the damn place down.”

Tough talk from the dean of New York Law School, right?  And yet:

N.Y.L.S. is ranked in the bottom third of all law schools in the country, but with tuition and fees now set at $47,800 a year, it charges more than Harvard. It increased the size of the class that arrived in the fall of 2009 by an astounding 30 percent, even as hiring in the legal profession imploded. It reported in the most recent US News & World Report rankings that the median starting salary of its graduates was the same as for those of the best schools in the nation — even though most of its graduates, in fact, find work at less than half that amount.

David Segal, the author of the Times article, not one to miss a chance of demonstrating his mastery of the obvious, writes:

Asked if there was a contradiction between his stand against expanding class sizes and the growth of the student population at N.Y.L.S., Mr. Matasar wrote: “The answer is that we exist in a market. When there is demand for education, we, like other law schools, respond.”

This is a story about the law school market, a singular creature of American capitalism, one that is so durable it seems utterly impervious to change. Why? The career of Richard Matasar offers some answers. His long-time and seemingly sincere ambition is to “radically disrupt our traditional approach to legal education,” as it says on his N.Y.L.S. Web page. But even he, it seems, is engaged in the same competition for dollars and students that consumes just about everyone with a financial and reputational stake in this business.

Unfortunately, it escapes Segal’s notice that this provides no answer to the obvious question.  While Dean Matasar may really, really want to do right by the students, the lure of money in a market exempt from reason comes first.  It’s not an answer. 

Talk is cheap. Law school isn’t. And as long as fools are desperate to separate themselves from their money, law schools will humbly assist.

Can one blame law schools, deans, for playing Hoover and sucking up all the loose change they can get their hands on?  What of the responsibility of law students to have a clue what they’re throwing away?  What of the ABA’s compulsion to accredit new law schools in storefronts formerly housing tattoo parlors?  What of the profession’s willingness to use and abuse young lawyers to do scut work and then toss them out on their ear when they demand a living salary?

The article ignores that existence of a massive market disconnect, a bubble if you will, that we have all contributed in making.  In a lousy economy, students persist in seeking graduate education in the hope that they may have a half-marketable skill while avoiding the hard work of finding a paying job.  They hide in their new classrooms in the expectation of waiting out the bad times and cashing in on the good.  And law schools are only to happy to help.

And we let them do so.  No, we are complicit in their doing so. 

How many practicing lawyers tell kids intent on going to law school that being a lawyer is hard work and no guarantee of wealth or prestige?  How many explain the basic economics of how much they need to earn to make the law school investment pay off?  How many even know the words “opportunity costs?”  The ABA isn’t made up of gnomes in the backroom of some mystical lawyer village, but of lawyers who work for a living.  Why then does it not come to grips with reality and both raise the bar of what is required to become a lawyer while simultaneously slicing and dicing the numbers to come to terms with society is willing to accept? 

I recently had a nice email exchange with Dean Matasar following what I deemed a particularly ill-advised move on his part.  He explained his purpose, which was fairly noble, and I explained that the road to hell was paved with good intentions.  I like him, and accepted his sincerity.  But then, it changed nothing.

The job of a law school dean is to make enough money to fund the school and perpetuate its existence.  Ironically, it has probably become easier to do at the bottom end of the law school spectrum than the top, as applicants with top grades and great LSATs have a choice of schools, while those at the bottom are constrained to take whatever seat they can get.  That leaves the bottom tiers as cash and carry law schools, and any dolt with the will to assume massive debt or a wealthy daddy can be a lawyer too.  More or less.

But this isn’t a “creature of American capitalism,” as Segal contends.  This is gouging, just like the gas station in the middle of an oil crisis.  And we’ve all got a finger in it, whether by participating or keeping our yaps shut when integrity would compel us to speak. 

Of course, few want to be the bad guys who tell the other players and the inchoate lawyers that it’s a lousy deal, a sucker bet, unless you’re crazy enough to truly want to be a lawyer.  After all, nobody like the person who gives up the secrets.  And besides, the pay sucks.

Most of the time, the videos of misconduct that go viral, that grab our attention and produce outrage, show brutal and horrific conduct.  While these images are undeniably moving, they are also outliers, as most police officers don’t beat prisoners to a pulp, or body slam innocent people into paralysis.  Few cops, or judges, see these as anything more than “one bad apple” examples, and shrug them off.

For this reason, a video out of Houston of former United States Air Force MP turned Houston cop, Angela Horton, is unlikely to get your blood boiling, but is far closer to normal, everyday misconduct than the one that makes the 6 o’clock news.  Via Grits for Breakfast :



What’s striking about this strike isn’t that it’s so harmful or shocking, but so banal.  Angela Horton just walks up to the cuffed perp and throws a punch to his head.  The two officers holding the suspect don’t react at all.  It’s just another day at the office.

To their credit, HPD relieved Horton of duty and commenced an investigation.  Of course, had their been no video of the punch, chances of anything having come from the suspect’s allegation that an officer walked up to him and punched him are slim to none.  And Horton’s explanation?

The one-eyed cop is king.  Funny, sad and pathetic, this video (there’s a second as well) of two guys in California, testing the open carry law, via Carlos Miller, provides a graphic illustration of how cluelessness rules the streets.

It is legal to open carry firearms in California as long as the guns are not loaded and the carrier abides by other restrictions, according to this site.

The officers detained them while they checked the serial numbers on their weapons and for possible warrants on the men.

The men were eventually released with their weapons.

“How about you not trying to agitate the situation…”  Well, the only way not to “agitate” the situation is to comply with the commands of the police.  But then, we’re stuck in a vicious circle, since that leaves people free to exercise their rights subject to detention, search, subjugation and approval by the cops.  That’s not quite free exercise, and should these fellows happen upon another set of police ten minutes later, they may well be put through the same “exercise” again.  And again after that.

There are many groups reflecting many of the rights in which we believe and of which we hold dear, and they promote the idea that people take to the streets, assert their rights publicly and challenge the police to stop them.  They’re taught what to say and how to say it.  They’re told the police are not allowed to do the very things that are done in these videos. 

Are they?  Can the police violate rights at will?  In fact, sure. They have guns and shields, and can do pretty much anything they want on the street.  And what are you going to do about it?

The two men in this video are eventually released.  Had they been arrested, they would be charged with something and would assert that they’ve committed no crime.  The best outcome would be that charges are dismissed, an outcome by no means assured, and the upshot is that the cops win because the only party who suffered for the exercise of rights was the guy trying to do so.  It’s not party, even if the charges are dismissed.

Some will suggest that they should sue the police.  For what?  Expensive, time consuming litigation, with a fairly questionable likelihood of prevailing (because the cops have a point about their authority to detain someone who presents a credible threat, even if that threat is a matter of right), may work for public interest groups that are well-prepared and financed for testing the law, but regular guys aren’t in a position to carry this water.  And there’s no pot of gold on the other end.

And to be frank, should a court admonish the police, in the sternest possible language, that the conduct observed in these videos reflects a wholesale violation of the right to open carry in the State of California, it won’t change a thing.  There is no court decision, no statute, and not even a right enshrined in the Constitution, that will prevent a police officer from making sure that you won’t harm him.  Nothing is more important than him making it home for dinner.

On the other hand, the creation of videos like this, and disseminating them widely with appropriate commentary that reflects the fact that the police are regularly engaged in the abrogation of rights provided by law and discussed by judges as if things like this are a figment of the public’s imagination, provides the best opportunity to combat and challenge the first rule of policing. 

It’s no magic bullet, but it’s the only opportunity available to keep the cops honest.  No matter what legal mumbo-jumbo they spout.

Much as I make fun of some of the “columnists” at Above the Law because they are vapid, clueless or disingenuous hypesters, one has produced an exceptionally good body of advice, even without infantile toilet references or images of naked people.  He’s none other than  my fellow curmudgeon, Mark Herrmann.

His  latest quest is to explain to the children why old guys (like him) are insane.  Don’t worry. He uses small words and lots of examples and analogies.

As you age, you are driven insane by mistakes that you’ve made (or seen others make) in the past. You’ve seen someone wait until 5 p.m. to call for vital information, and the person who had the information had left for the day and was now unreachable. For the rest of your life, you make your phone calls for vital information before noon, just in case.

You’ve sent an email urgently requesting information and not received a response for a week, because the intended recipient was out on vacation. For the rest of your life, when you send an urgent email, you then call the person to whom you’ve sent the email to confirm that the person is not on vacation. If you don’t reach the intended recipient, you speak to the recipient’s secretary to confirm that the recipient is in the office and will see the email. You remember that once a secretary deceived you, saying that the person was not on vacation, but neglecting to mention the person was tied up in court and wouldn’t see the email for hours. For the rest of your life, you cross-examine secretaries about when the lawyers for whom they work will next be checking emails.

Sure you’re crazy; you’ve been driven insane by events. You’re hedging against things that victimized you in the past.

But another possibility is that the older lawyer has simply lived longer and so had the chance to be driven insane by more events. The older lawyer knows — deeply and fervently, down to his very core — that you simply must proofread the last draft of the brief before you file it, even though the final revisions did no more than fix a couple of typos. The younger lawyer thinks the older lawyer is nuts.

Burt Roberts was called the toughest DA in New York before he became a judge in the Bronx.  When you were in his courtroom, he would make sure that one thing was absolutely clear, that he was the best lawyer in the room.  Whether or not that was true, there was no purpose in disputing the point.

At PrawfsBlawg, Tun-Jen Chiang asks why we want judges to be great lawyers.

In the rhetoric of judicial nomination fights, two things that just about everyone agree on are: (1) judges should be great lawyers, and (2) judges should not engage in results-oriented decision-making, that is, they should not first come to a predetermined outcome based on extra-doctrinal considerations and then dress up that outcome in legalistic mumbo-jumbo.

But it seems to me that the very definition of a great lawyer is someone who can take a predetermined outcome based on extra-doctrinal considerations (my client should win because he is paying me), and dress it up in legalistic terms in the most persuasive manner.  Sure there are other attributes associated with a successful lawyer, but the ability to twist legal doctrine to reach your client’s desired result seems to be the defining trait.

Putting aside quibbles about this peculiar definition of a “great lawyer,” reduced to the person who is most persuasive no matter how wrong or disingenuous, and which subsequently confuses “successful” with “great,” the question remains why we assume that the attributes that make someone a great lawyer are the same attributes that make someone a great judge.

One reason to have judges be great lawyers is that they would then be able to call out the lawyers who appear before them for doing this.  This is rather akin to having the best thief in the world design your safe.  But if you get a thief to design your safe, you better make sure you have some way of controlling him afterward.

This is what made me immediately think of Burt Roberts, as he relished ripping the lungs out of lawyers who made ill-conceived or frivolous arguments, proving conclusively that he was smarter than them.  There were times when it was fun to watch Burt emasculate some clueless dope, and there were times when it was like watching a kid pull the wings off flies.

Do we really want judges to be “great lawyers?”  To some extent, we do, but not because we believe that great lawyers make great judges.  Rather, we attribute skills and abilities to great lawyers that we believe to be applicable to excellent judicial performance.  We assume great lawyers are smart, knowledgeable about the law, excellent at issue spotting and capable of discerning a valid argument from fluff.  These are merely assumptions, but it’s not too much of a stretch.

But it’s not really clear that we do want great lawyers to be judges. Other aspects of what we seek in a judge is fairness, impartiality, appropriate temperament and enormous self-control.  On the other hand, there are attributes of great lawyers which can prove terrible in a judge, raging ego being a prime example.  No great lawyer can function without the ability to believe that he alone is right even if the rest of the world is against him. 

It appears from Chiang’s framing of the question and explanation that he’s vastly oversimplified the issue, and doesn’t have a firm grasp on what lawyers do.  Do lawyer merely take their objective and “dress it up in legalistic terms in the most persuasive manner?”  Sometimes, but that’s hardly a fair description of the job. 

In a comment to the post, Orin Kerr attempted to unravel Chiang’s confusion:

“The ability to twist legal doctrine to reach your client’s desired result seems to be the defining trait [of a lawyer].”

I disagree. I tend to think that the defining trait of a good lawyer is the ability to get an accurate sense of the strength and weaknesses of various legal arguments. It’s true that a lawyer must then go on to use that skill to develop the strongest case for his client, but that’s a use of the skill, not the skill itself.

Chiang responded:

Orin, that is a pretty metaphysical distinction. To use my thief analogy, it is like saying that the defining skill of a good thief is the ability to get an accurate sense of the strength and weaknesses of a safe’s defenses, and that a thief then only uses that skill to a particular end. It is true enough. But it doesn’t take away from the fact that we seem to want to pick the very people as judges who have devoted their entire careers to practicing something (making results-oriented legal arguments regardless of whether they believe those results to be the most faithful deduction from doctrine) that judges are not supposed to do.

While Orin’s explanation may be “pretty metaphysical,” it’s right on target.  Great lawyers use their skills for a particular purpose, to zealously represent their clients, because that’s their mission.  It’s not because they’re incapable of distinguishing between the work they do and the position they would take if they had no horse in the race.  This is a primary attribute that allows the great lawyer to develop a winning argument even when his cause may be questionable, recognizing the weaknesses of his position and finding viable ways to deal with them. 

This is one of the fundamental distinctions between zealots and great lawyers.  Where the zealot is incapable of understanding that his arguments are unpersuasive to anyone who fails to share his view, the great lawyer comprehends that his job isn’t to be “right” in some philosophical or political sense, but to be persuasive to the decision maker.  The great lawyer uses his skill to achieve the desired end, but doesn’t delude himself into believing that just because he makes an argument that he sits at the right hand of God.  The great lawyer knows only too well that sometimes he’s dead wrong, but still has a job to do.

Far too many judges take the bench to impose their vision of right and wrong, certain that they know what justice is and, given the power of the robe, intend to ram it down the throats of everyone who stands before them.  To demand that judges achieve some sort of true impartiality is a bit naive, as judges are people too, bringing their prejudice and sensibility to the job.  They may be wise (or not), but that doesn’t mean they’re an empty vessel, devoid of feelings, bias, understanding of the world and life from their unique personal position.  We’re all that way.

But the great judge, like the great lawyer, recognizes this in herself, and understands that the function has to be separated from their impulse to impose their view of right and wrong on the world.  The great lawyer may be capable of crafting a brilliant argument to support his cause, even though there may be valid, perhaps even stronger, arguments against him.  He does so and still, in his heart and mind, is fully aware of the flaws in his position.

The great lawyer who can appreciate the failings of his argument, and yet remember his duty to zealously represent his client, has the skills to be a great judge. The great lawyer understands why he does what he does, and doesn’t confuse his duty with his personal philosophy.  Whether that’s how, should he put on the robe, things turn out is another matter. 

Still, we are likely a lot better off having someone with the attributes of a great lawyer on the bench than the alternative.