A twit came across the screen the other day about a criminal defense lawyer from down New Orleans way, where he had some extra time on his hands, could use some extra business, and so he found his way to a website called LawQA.  There’s no link to it, as there’s nothing worthy there to see.

One of the basic draws of the site for non-lawyers is the promise of free answers to legal questions.  You know how much people love free.  Naturally, the questions are too imprecise, even assuming they aren’t deliberately framed to obtain the answers desired, to be of any value.  Why bother with the searching questions that lawyers use to get to the heart of an issue when you can ask simplistic questions that guarantee no worthwhile answer.

And then there are lawyers, hoping to endear themselves to a questioner, who will then be so enchanted with a response that they will feel immediately compelled to put their hand in their pocket and pull out wads of cash.  Forget jurisdiction. Forget critical details. Forget all the nasty little things that distinguish legal advice from what Aunt Selma will tell you on the street corner.  Just be kind and empathetic, and maybe your phone will ring.

So the NOLA lawyer answered questions, except he seemed like a well-intended guy with a little too much time on his hands.  He thought he was doing a mitzvah, the New Orleans word for good deed.  He was trying to help people who needed help.  Is that a bad thing?

It can be, when it supports a concept that inherently unhelpful and potentially dangerous.  Half-baked questions, evoking quarter-baked legal advice, even when well-intended, can lead people to making very bad decisions.  Not only is no one helped by bad advice, but they can find themselves in far worse positions as a result.  To any lawyer who cares, this isn’t what they want to see happen as a result of their good deed.

After some discussion about the nature of these sucker come-on websites, using lawyers to bolster their advertising revenue and “premier” (meaning, paid-for) services to sell lawyers like laundry detergent, the question was posed:  So if this is bad, then what is good?

Pro bono.

Many lawyers these days find themselves with extra time on their hands and a desire to use it in both a meaningful way, and a way that might lead to a few more interesting phone calls.  There’s nothing wrong with hoping the phone will ring with a person on the other end who has both the wherewithal to obtain counsel and a case that will be both interesting and enlightening.  Nothing wrong at all.

At the same time, there are people out there, human beings, who aren’t capable of covering the freight for desperately needed legal services.  It’s not that they’re looking for a free ride, as much as there being no other ride available to them.  They need a lawyer.  You are a lawyer. They have a fascinating case. You could use a fascinating case. What could possibly be done with these fortuitously fitting circumstances?

Taking a matter on pro bono can be an opportunity to show your chops, both to the client, his family and friends, as well as the court and prosecutors.  No, it’s not invariably perfect, with some people failing to appreciate the gift as given.  But most of the time, pro bono is seen as a noble effort, an act of compassion toward others.  This is a good thing.

True, the obligation assumed in pro bono representation can end up being very time consuming, more so than the free time you have available, or the free time you’re willing to give up.  It’s certainly more onerous than dashing off a half-baked answer on some scam website for some cheapskate.  Once you’ve undertaken the representation of another, regardless of whether you’re well-paid or doing it for love, your duty is to do so with the same degree of excellence and to see it through to the end.  That’s the life of a lawyer.

At least you get to select a person/case deserving of your efforts with pro bono, and can enjoy the sense of doing something worthwhile with your time rather than just mercenary.  And don’t neglect the potential of karma.  Whether or not you see any direct benefit accruing from pro bono representation, good things tend to find their way to people who do good for others.  It’s just how things happen.

So you have too much time on your hands?  This is my solution, for whatever it’s worth.

Imagine a defendant facing sentence for a crime to which he’s acknowledged guilt, shown remorse, recognized the error of his ways and stood prepared to face the consequences.  And then a voice from the back of the courtroom is heard, alleging harm and injuries never before mentioned, asserting misery caused by the defendant never considered before.

And the defendant is precluded from challenging these allegations.

That’s the  scenario proposed by former federal judge, not Utah lawprof, Paul Cassell in his new article with Edna Erez, Victim Impact Statements and Ancillary Harm: The American Perspective.

A recent article by Julian Roberts and Marie Manikis argues that the concept of “ancillary harm” explains why victim impact statements are useful at sentencing. Drawing on a recent decision from the Quebec Court of Appeals, they contend that impact statements help a judge assess foreseeable harm caused to a victim’s family member and others – “ancillary harm” – for which the defendant is properly held accountable under conventional retributive principles.

In this response, we bring an American perspective to bear on these issues, finding much in the American crime victims’ literature and court decisions to support the Robert-Manikis thesis. For example, at the recent sentencing of Bernie Madoff, the sentencing judge referenced ancillary harm as an important factor. A number of cases have reached similar conclusions. While not using the phrase “ancillary harm” to justify their actions, the court decisions make clear that foreseeable harm to others is an important consideration at sentencing. The American cases also support a crime victim having a right to deliver a victim impact statement not only in writing, but also orally at the sentencing hearing itself. Crime victims, however, should not be cross-examined when delivering their statement. Instead, the court should insure the reliability of information contained in a victim impact statement in other ways, as a number of decisions recognize.

It pulls together some interesting examples of the victim impact statements bringing to a judge’s attention the far reaching consequences of a crime that might not otherwise be apparent.

Crime victims, however, should not be cross-examined when delivering their statement. Instead, the court should insure the reliability of information contained in a victim impact statement in other ways, as a number of decisions recognize.

Techdirt, the website of geeks everywhere, discovered  Rakofsky v. Internet yesterday, proving yet again that it’s a source for cutting edge news and information.  This prompted Mark Bennett, who has maintained a  compendium of Rakofsky posts, to note :

Twice as many Google cites for Rakofsky in May (post-lawsuit) as in April (pre-lawsuit, post-Deaner case). #TheRakofskyEffect

Sabrina De Sousa was one of 23 people convicted in Italy of a very nasty American practice called “rendition,” which amounts to the United States invading the sovereignty of a foreign nation, seizing someone there because, well, we want to, and doing with them as we please.  In this case, rendition ended in Egypt and torture.

De Sousa was alleged to have participated in the 2003 kidnapping of a Muslim cleric, Abu Omar.  Officially, she was a State Department employee, part of the diplomatic corp.  Unofficially, she was CIA.  Even so, she expected her appreciative government to invoke diplomatic immunity on her behalf, and when it pretended not to know her, she was pissed and sued.  From the New York Times :

Former colleagues say Ms. De Sousa was a C.I.A. officer posing as a diplomat, the most common kind of cover for intelligence agents working abroad. She has declined to say whether she worked for the agency, noting that she was officially posted to Italy as a State Department employee.

In 2009, Ms. De Sousa sued the State Department, the C.I.A. and several officials in an attempt to force the American government to invoke diplomatic immunity on her behalf in the hope of blocking her prosecution by the Italian authorities.

The State Department did not assert immunity, though it ultimately agreed to pay a lawyer in Italy to represent Ms. De Sousa. She was convicted in absentia in Italy of helping to oversee the kidnapping conspiracy and sentenced to seven years in prison.

As one might expect, De Sousa has evidence to support her claim.  As also expected, the evidence is classified, since the government classifies everything short of the cleanser used to clean CIA toilets.  But the lawyer for the Department of Justice has a security clearance.  De Sousa’s lawyer, Mark Zaid, has a security clearance.  No problem, right?

In a hearing before the judge, Beryl A. Howell, the Justice Department said that only the executive branch has the power to make decisions about classified information, including whether the lawyer, Mark S. Zaid, can tell the judge what he knows.

“There is no right for the plaintiff to give the court classified information at all,” said Brigham J. Bowen, a Justice Department lawyer. He said Mr. Zaid’s “obligation is to protect against all disclosures, including to the court.”

Judge Beryl Howell is the weak link.  It seems the judge is the only one who can’t be trusted with classified information, the stuff that both the prosecution and defense know, and that Zaid can’t disclose it to the judge because the prosecution, as representative of the executive branch, gets to make the call.  Shockingly, the DOJ says “nyet, comrade.”

In response, Judge Howell “pronounced herself ‘literally speechless’ at the government’s assertions,” which is of course a contradiction in terms, but who can blame the judge for being befuddled.  It appears that the court got the message, however.

Judge Howell expressed sympathy for Ms. De Sousa’s situation, asking whether the government simply had left her “high and dry.”

Judge Howell asked Mr. Bowen, the Justice Department lawyer, several questions about an earlier episode in which Mr. Zaid was accused of inadvertently disclosing classified information in court papers, including which intelligence agency was involved. “I can’t fully answer those questions publicly,” Mr. Bowen said.

Secrets are secret, you know.  It’s not like there’s a third branch of government whose duty it is to adjudicate the lawfulness of the conduct of the other two, in a system that could be called, to coin a phrase, checks and balances. 

In the meantime, De Sousa is unable to travel to Europe for fear of being taken into custody to serve the seven year sentence imposed in absentia.  She’s got no job, apparently since the government has this thing about diplomats and CIA agents being wanted criminals, and feels a bit unloved and unappreciated.  She asserts that her Italian conviction is hindering her ability to find employment, though there’s no mention of whether it appears on her background check for the assistant manager position at McDonalds.

The scenario, in its entirety, is astounding on every level.  Chances are De Sousa would be a bit more of a sympathetic plaintiff but for the fact that her underlying conduct related to the kidnapping and torture of a Abu Omar, even with the rationalization that torture in the old Egypt was considered a substitute for fine art.

But the mutt of this case is Judge Howell, who has accepted the premise that a branch of government cannot fulfill its constitutional duty when another branch of government says so.  Arguments of judicial independence ring silly and empty when federal judges themselves opine that they’re “literally speechless.”  Judge Howell should be filled with speech, loud and forceful speech, and none of it good for the government,

One might suspect that the federal judiciary wouldn’t take kindly to be told what it can do by some lawyer from the DOJ.  And one would be wrong.  When it comes to rendition, you can’t buck your master, and the government can’t trust its judges. 

Will Meyerhoffer should never have been a lawyer.  Or if he should, it shouldn’t have been with Biglaw (Sullivan & Cromwell).  But coming from Harvard and NYU Law, he was doomed to walk down the wrong path, and he found hate at the end.  So he left and became a therapist, where he could spread his hate to others who similarly should never have been lawyers.

Now a columnist at Above the Law, Meyerhoffer wants you to hate lawyers too.  Why should he be the only person wallowing in misery?  His latest post explains why lawyers are despicable, as if any explanation was needed.

To judge by the accoutrements of “the profession,” lawyers, as a group, maintain an inflated self-image. They think they’re all that. It’s easy to get sucked into this mind-set – especially fresh out of law school. Perhaps, when you’re not “thinking like a lawyer,” you’ve spent a few minutes admiring the little “Esq.” printed after your name on an envelope from school or a law firm – or some company in Parsippany trying to sell you a genuine mahogany and brass pen holder featuring a statue of “blind justice” for only $59.99 with free shipping.

With lawyers, self-esteem outpaces public acclaim. That’s because, for the most part, non-lawyers view lawyers as worthless parasites – or at least, as existing on the more worthless, parasitical end of the esteem spectrum.

Monday morning, I called up my contact at Morgan, the guy who interviewed me. He was Australian, and seemed distantly friendly. For whatever reason, I sensed I had nothing to lose, so I put it to him straight. I’d been reading “Liar’s Poker,” I said, and sensed I’d blown the interview. I wanted another chance to present myself.

There was a pause.

*  *  *

I asked, flat out, what he really thought of lawyers.

Another pause, then, delivered in that charming Australian accent, with a chuckle: “Bend over and take it like a man.”

“That’s really what you think?”

“Seems like the worst job in the world to us. You work day and night, chasing your own tail. You’re like slaves, and all you do is the boring stuff.”

“Trading bonds is more fun, huh?”

“Fun and lucrative, thank you.”

They live to write.  So when Chief Justice John Roberts dismissed the Academy in his interview with Bryan Garner, they were cut to the quick.  It wasn’t merely their raison d’être under attack, but big bucks to boot.  A fighter at his core, Gerard Magliocca shot back.

In the legal writing interviews with the Justices that I referred to over the weekend, Chief Justice Roberts said that “[w]hat the academy is doing, as far as I can tell, is largely of no use or interest to people who actually practice law.”  Judges and lawyers often make similar comments, so I thought that I would try to explain why I think this view is, at least, exaggerated.

Before sneaking a peak behind the curtain, it’s worth noting that that there is no lesson, none, to be learned by lawprofs in all this.  One might think that they would question why CJ Roberts would say such a hurtful and dismissive thing, or perhaps what they could do to make their pet projects slightly relevant to a purpose beyond self-aggrandizement, lawprof style.  Nope.  Nothing.

Then comes the argument.  Number one, and presumably the strongest is:

First, there are many excellent scholars who write traditional doctrinal articles that are useful in deciding difficult cases.  Some fields, of course, lend themselves more to that than others, but I think it would be wrong to dismiss what they do.

Loosely translated, this argument contends that “Lawprofs think that what lawprofs do is useful and therefore it’s wrong for non-lawprofs to think differently.” It’s arguments like this that make me appreciate the decision to go into academia rather than practice law and bear responsibility for a person’s freedom.  So the primary point is, you disagree?  Who cares?  You think you are wonderful, and therefore others should too?  Denied.

Second, some legal scholarship is directed at the Executive Branch, Congress, or administrative agencies. These papers will be of no interest to courts or most practitioners.  For instance, I have an article coming out soon on “Reforming the Filibuster.”  That article is not less valuable because it is about the Senate.

Yeah, well, there’s only one problem with this argument.  Neither the executive branch nor congress, and certainly not the administrative agencies, know that you even exist.  They can’t read their own bills, and you think they’re going to read your law review articles? 

Third, a significant amount of legal scholarship is devoted to “basic research” such as philosophy or history.  Almost every field can be divided into applied research and basic research, and what courts and attorneys do is applied.  It does not follow that because the utility of basic research (say, human anatomy) is uncertain that means it’s useless.  It takes time to figure that out.

Unless I misunderstood CJ Robert’s quote, he didn’t say that everything written is stupid or worthless, but of “no use or interest to people who actually practice law.”  So your argument against this is that he’s absolutely correct?  Maybe some lawprof can do some basic research on the definition of persuasion?

Fourth, legal scholarship is indirectly transmitted to judges through their clerks and briefs. Even if a clerk, who is usually more familiar with current law review articles than the judge, does not cite articles that he or she read, the information or analysis in there still exerts some influence on the bench memo or draft opinion.  Ditto for briefs, especially for amicus briefs written by professors, which are more common nowadays.

This argument reflects a gross misunderstanding of how law works.  We cite whatever supports the outcome we’re working to achieve.  If our research pops out an article of yours, and it says what we want it to say, we cite it.  It’s not because we read it, or because it comports with our deep legal philosophy, but because we are advocates and want to load up support for our side.  Same with judges, who need to bolster their outcomes with citations, which is why we have law clerks.

Now I do not deny that there is plenty of legal scholarship that is esoteric or useless.  That is a necessary cost of academic freedom to some extent, and also reflects the more interdisciplinary nature of the legal academy since the 1960s.  (In other words, the more subjects that are under the law umbrella, the more apt one is to think that a given aspect not your own is a waste of time.)

Neither CJ Roberts nor practicing lawyers are arguing that lawprofs shouldn’t be allowed to indulge their scholarship fantasies.  We’re saying we don’t care because it doesn’t matter to us.  As long as law schools are happy to charge their students through the nose to pay for lawprofs to spend their days writing articles of no value or interest to anyone involved in the practice of law, knock yourselves out.  It’s got nothing to do with us. 

It seems that law students might be a bit miffed at the idea of paying for your affectations, but that’s between you and your students.  Well, we might stick our nose into that fight from time to time, but that’s only because lawyers tend to be great humanitarians.  We care, you know.

Having dismissed Magliocca’s arguments, consider that some law review articles are extremely important and influential.  Orin Kerr’s articles on cyber crime and the interpretation of the Computer Fraud and Abuse Act have not only had a significant impact on judicial decisions (sometimes to my chagrin), but are instrumental in framing an entirely new area of law that may prove to be at the forefront of crime in the future. 

The point of Chief Judge Roberts’ comment isn’t that scholarly works are inherently worthless and of no interest to the profession, but that most are, as written, useless because they fail to address the subjects and issues that lawyers and judges care about.  Lawprofs can enjoy all the academic freedom they want, but if they want to be relevant to the legal profession, it might behoove them to consider writing about things that matter rather than arguing that they are pleased with themselves and the profession is wrong to ignore them just because they offer nothing useful or interesting. 

Don’t want to be dismissed?  Then write about stuff that matters.  That’s the lesson, and no rationalizations are going to make anybody want to read your “scholarship.”

If we step back, the jury’s acquittal isn’t unreasonable.  The absence of DNA evidence of rape, or even sexual intercourse, was a huge hole in the proof.  That she was so drunk that she couldn’t quite remember much didn’t help either, plus opened the door to all nature of inquiry that wasn’t going to make her sympathetic.

But still, it was wrong.  And it was disgusting.  And the Chief of the New York City Police Department, Ray Kelly, was not going to have these two on his force.

“The guilty verdicts involved violations of the officers’ oaths of office and, as a result, warrant immediate termination.”

The woman had described snippets of a harrowing night in which the officers, called to help her because she was extremely intoxicated, instead abused her. They insisted no rape occurred, with one allowing only that he snuggled with her while she wore nothing but a bra.

And she was stone drunk. And the cops were there to help her home, to protect her and get her home without incident.  Except of their own making.

The jury’s decision also underscores the difficulty of obtaining favorable results for women who say they were sexually assaulted, and who often are subjected to scrutiny and skepticism that keep many of them from speaking out. In this case, defense lawyers pounced on the credibility of the woman because she was very drunk on the night in question and did not remember many details.

As hard as it is to accept, whether by those who contend that any alleged rape becomes inherently sacred or by those whose distrust of cops makes them presumptively guilty, this is how it’s supposed to work.  Guilt must be based on proof, not bias either in favor of the “victim” or against the cops.  Of course, it seems that the system invariably works far better when it’s a cop sitting at the defendants table than any other time.

But just as the rights of all are tested when the worst defendant is in the dock, these same rights must be afforded defendants who are believed to be afforded favor when the rest are not.  We keep arguing that every defendant deserves a fair trial, and a verdict based on evidence beyond a reasonable doubt.  That includes cops too.  We hope it applies across the board.

Had this not been a drunken woman, and had this been a beating instead of sexual encounter of some sort, would Kelly have been so quick to fire the cops?  Would the police department have issued a statement of condemnation, or an excuse for their retention due to their brave and honorable service marred only by a single mistake?

Cops violate their oaths all too frequently, yet that almost never results in such a harsh response by the Chief, nor their summary discharge.  It should.  It should be all that’s required to strip a cop of his gun and shield and toss him into the gutter.  But it’s not.

The difference here is that their conduct, even assuming that no rape occurred, violated the inside rules of chivalry.  It was creepy and disgusting.  Even in the cop world, real men protect womanhood.  Only pervs take advantage of a drunken woman.  It’s not just the aberrant sexual allegations, as Abner Louima can attest, but that these men did it to a non-mutt woman.  That’s where the line is drawn.

While the verdict is unsatisfying, largely because few people believe that these two cops, or at least one of them, didn’t engage in intercourse with this drunken woman, it was a correct verdict.  The proof fell short.  That it would have been sufficient to convict a non-cop isn’t the point and can’t be proven. The fact remains that the evidence wasn’t there and they were acquitted of the rape.

And they were summarily fired from the police force, without the routine official excuses and spin as to why creepy and disgusting cops are entitled to our admiration and respect, and should be given a medal for their conduct.  It may not feel right, but it is. 

And in the end, Ray Kelly did the right thing.  Maybe it will feel good and he’ll do it again next time, even when the cops’ violation of their oath involves a black man and a beating.  We can only hope.

The phrase that comes to mind is “all hat, no cattle.”  It refers to someone who tries to give the appearance of being something, but has nothing behind him, whether that’s guts, skill or, well, cattle.  And it’s not something you want to be called, especially not in Texas. 

Which is what makes it all the more laughable that Texas Senator, Republican Dan Patrick, can be found hiding in a dark corner of the capital, squirming and weeping, pleading to no one to not hurt him.  You see, Patrick wore a big hat, proposing a law to stop the TSA from groping its children and wimmenfolk:

Texas has its own bill in the legislature, HB 1937, which also makes it a sex assault (again, a felony subject to sex-offender registration) “as part of a search performed to grant access to a publicly accessible building or form of transportation, intentionally, knowingly, or recklessly [to] search[] another person without probable cause to believe the person committed an offense; and [to] touch[] the anus, sexual organ, or breasts of the other person, including touching through clothing, or touches the other person in a manner that would be offensive to a reasonable person.

Ah, Patrick was tough, the man who would face down the federal government and let them know that they’re sick rules and procedures wouldn’t be tolerated in the great Republic of Texas.

But then John E. Murphy the United States Attorney for the Western District of Texas,  shot off a letter, which Mark Bennett succinctly describes:

So a federal government lawyer (whose job it isn’t) threatens vaguely that TSA (which he neither works for nor runs) “would likely be required to cancel any flight or series of flights for which it could not ensure the safety of passengers and crew” (note Murphy’s explicit false premises: that groping is a) “required under federal regulations”; b) “in order to ensure the safety of the American public”), and the Texas Legislature caves in. They don’t even hold out for a threat from someone with the actual power to make the decisions, much less a concrete threat.

It’s like someone turned the light on and all the roaches scattered.  So tough until someone, even someone without any power to actually do anything, says, “boo!”  And suddenly, it’s revealed that Dan Patrick’s just another guy with a big hat and no cattle. Via Kash Hill :

Republican Dan Patrick, who was the sponsor of the bill in the Senate, withdrew it when he realized he would not have the votes he needed to pass it. “There was a time in this state, there was a time in our history, where we stood up to the federal government and we did not cower to rules and policies that invaded the privacy of Texans,” he said with regret, reports the Texas Tribune. No last stand for Texas this week.

He could have stood firm and squared off with his chicken compadres in the Senate, telling them that the molestation of Texans at their airports was on their heads.  If the bill lost, it lost.  So what? Let someone else play the coward, running scared of some TSA tough guys who want to get too close to children.

But he blinked.  Dan Patrick was all filled with tough talk until the moment Murphy called on him to put up or shut up.  And now he’s hiding in the corner, quivering like jello and covered by his big, empty hat.

So a bunch of pledges at Yale’s Delta Kappa Epsilon Fraternity acted like moronic, five year olds.  They stood in the quad, chanting.

No means yes.
Yes means anal.

I’d like to begin by making clear that Yale University takes very seriously any and all allegations of sexual assault. Not only do we encourage students to report such instances directly to the Yale Police Department, but we have had on campus, since 2006, the Sexual Harassment and Assault Resources & Education (SHARE) center, which provides counseling, information, and advocacy to victims of sexual violence. The list of our efforts could go on, but that is not my purpose in writing today.

It was a trying episode for all involved, but it was also, as your boss President Obama would say, a “teachable moment.” Good speech responded to bad speech; the marketplace of ideas was at work.

Still, some called for punishment of DKE, saying that we should not allow such hateful rhetoric on our campus. More recently, others have pointed to punishment as a means to appease your office, as it would serve to publicly display our commitment to stopping sexual violence as well as gender discrimination.  Though I want nothing more than to shed the notion that Yale is harboring a “hostile” environment in terms of gender, I cannot in good conscience sacrifice our time-tested principles in the name of appeasement.

In a letter to students and faculty members on Tuesday, Mary Miller, dean of Yale College, said the Executive Committee, the college’s disciplinary board, had imposed sanctions on the chapter, which is not an official student organization. The fraternity will no longer be able to communicate with students via the Yale bulletin board or Yale e-mail, and its use of the university name will be severely limited.

The letter said Yale had formally asked the national organization to suspend the chapter for five years.

It’s so much easier to capitulate, even when the nature of the offense is a bunch of dumb words alone.  There was no sexual assault, and indeed, had any of these dweebs touched a young lady against her will in the course of their initiation ritual, then we’ve got an entirely different animal on our hands.  And lest one suspect that stupid words are owned by one gender over another, consider this  letter to the editor of the New York Times:

Hurrah for Yale University’s disciplinary board! In its decision, reported in “Yale Restricts a Fraternity for Five Years” (news article, May 18), the executive board showed guts and heart, as well as compliance with the law, in punishing a fraternity for its sexually offensive chants.

Above all, this is a case where a message needed to be sent about what is tolerated on campus; the old “boys will be boys” canard cannot be and should not be upheld.

I hope that current and future male students can see that the tide has turned, irrevocably.

Let’s applaud Yale’s “guts and heart” for punishing “sexually offensive chants.”  They were sexually offensive.  But they were mere words.  Let future male students fear that if their speech will get them punished>  Let them cower in fear lest something they say offend.  That will teach them to be wary to never do anything that might upset women.  Let men be afraid.

Yale University has produced leaders.  Two of the last three presidents hung out out Skull and Bones, where never is heard a negative word about women.  And the lessons taught at Yale will be the ones carried forward in life, as future Yalies take their rightful place at the helm of the ship of state.  One lesson will be that the fundamental right of free speech comes in a distant second to not hurting women’s feelings.  

Did it not occur to Miller and Levin that women could just as easily have yelled back at the chanting fools that they just killed any chance they ever had of getting a date?  Does it ever occur to those in academia that there is a bigger lesson at stake, that one doesn’t throw away fundamental rights to appease the wounds of the politically correct?

And did it not occur to Miller and Levin that the proper way to deal with dopey infants is to give them a stern talking to and send them to bed without their supper? 

Not too many youngun’s remember the Junior Birdmen.  They were kids who built model planes, and wanted to grow up to be aviators, back when becoming an aviator was the coolest thing ever.  Then came a song, Up in the Air, Junior Birdman, which mocked those who were aviator posers.

Defendants, and more often family members and friends, want to play junior lawyer.  It often stems from two well-intended motives, to either contribute to the cause by helping their lawyer to defend, or to let the lawyer know that they are watching carefully and scrutinizing the quality of the representation. 

To a point, both motives are useful and appropriate.  This is the defendant’s life, and he should be both involved and concerned.  Both defendants and family members should be sufficiently interested to try to help and, probably the more important of the two purpose, keep a close eye on their counsel to make certain that he is providing the representation they require and deserve.

But they don’t get to steer the plane.

The situation differs when the defendant has retained counsel as opposed to assigned.  Having not chosen the latter, there is no particular reason for there to be a relationship of trust between lawyer and client.  One may, and in the best of circumstances, will be created based on the defendant realizing that this unknown quantity has both the chops and desire to serve him well.  Much of the time, the undercurrent of mistrust of the system and lawyers in general makes development of trust extremely difficult, if not impossible.

Ironically, however, it’s with retained counsel that most defendants and family members feel entitled to play junior birdmen.  While they may have chosen a lawyer, thus providing them with the opportunity to select a lawyer in whom then repose trust and respect, there is an undercurrent that they have bought and paid for the lawyer, and hence own him.  They are entitled to direct him.  They paid for the right  to call the shots.

Some lawyers acquiesce to the demands.  The constant communications and questions, about how they should get a better plea offer (the woman on the corner said the guy down her street murdered 12 people and got probation) or argue a specific point (Joe was denied due process because the cops slapped the cuffs on too tight). 

Some lawyers do it to be agreeable, lest they never have another meeting with Mr. Green.  Some do it because they don’t care enough, or lack sufficient self-respect, to manage their clients.  Some do it because they’re tired of the phone calls, emails, meetings and misdirected anger of clients and family members who beat them up because the system sucks.

To what end?  If being a lawyer was easy, then there would be no need for lawyers to exist.  Anybody could step into the breech, argue the cause, try the case and win the day.  Nothing to it, right?

Yet it never seems to work out quite that way.  Over the years, I’ve enjoyed the assistance and oversight of clients and their family members who, as it happened, were either lawyers or attended law school.  Whether they merely wanted to help, or wanted to use their law-fu to make sure I knew they were watching me like a hawk, they sought to insert themselves into the defense. 

These were the junior birdmen.  With a never-ending stream of “help” ranging from hornbook law, the stuff taught to first year law students so they learn the basics, to the wholly irrelevant, with the follow-up demands as to why their help isn’t brilliant and compelling.

If your criminal defense lawyer doesn’t know criminal law better, by magnitudes, than a real estate lawyer or, worse still, the kid who finished his third year, then your issue isn’t with his embracing your help, but with your choice of lawyer.  Assuming that you haven’t chosen poorly, however, then consider what is really happening. You are sucking the most valuable resource the lawyer has out of him: time.

There is no good lawyer who won’t put in whatever time it takes to do everything possible to defend a client.  But that means putting in the hours, the research, the investigation, the writing, the thought, needed to fight.  It does not mean spending time dealing with junior birdmen, explaining why everything isn’t a violation of due process, or why the “fruit of the poisonous tree” doctrine doesn’t preclude admission of drugs in their pocket at the time they were arrested with the gun in their hand.  You think it matters?  That may be, but then why bother to retain a lawyer?  If you have the answers, go for it.

The fact is that you realize you don’t have the answers.  You have Google, which can turn anybody into a junior birdman in minutes.  You may even have a little knowledge, though not sufficient grasp to recall that a little knowledge is dangerous. You likely have great interest, and feel that you should be doing something, anything, to be involved.  You may even feel the need for control in a situation where there is no control to be had.

This isn’t going to help.  Ask yourself whether you have the capacity to help, to contribute to your lawyer’s ability to do the job for which your retained him.  If you’ve put in the thought, the effort, to find the right lawyer for the defense, does he need that sort of help from you?  Do you believe the lawyer you retained to defend lacks the knowledge and skills to do his job?

There are things a lawyer needs of a client and family, and he will no doubt let you know what you can do to help and contribute to the cause.  It’s likely not the sort of stuff that feels particularly fulfilling, but it’s still needed.  Beyond that, however, you are just sucking time and, if pushed hard enough, interest.  It can reach a point where the demands of wasted time are too great, and the time spent dealing with junior birdmen is taken from the time needed to defend. 

It can be hard, almost impossible, to sit on the sideline and watch a lawyer from afar.  We get it.  But it’s all you can do without becoming a detriment to your cause.  We have our roles, lawyer, client, family.  Realize your roll and fulfill it, but no more.  Don’t play junior birdman.