Ellen Beth Wachs is out of jail for now, but she’s been ordered to stay away from the neighbor boy, a ten year old who enjoys hoops with his dad.  He has sensitive ears.

From Fox in Tampa Bay :

A judge in Bartow decided to release Ellen Beth Wachs, an outspoken atheist, who has been in jail since Sunday.

She was arrested after an incident involving her neighbor’s 10-year-old son, and charged with simulation of a sexual act in the presence of a child.

Wachs was annoyed at the sound of the kid playing basketball early Sunday morning, and told him to knock it off.

He did stop, but a few minutes later, began shooting hoops with his father.

Detectives say Wachs began making loud noises of a sexual nature.

Before addressing the obvious, this bears noting:

“He is very fearful of even going outside after that happened,” said Otto Lehman in court on Friday. Lehman is the boy’s dad.

Well, that’s certainly credible, Otto.  You can raise the nightmares that will haunt him for decades when you bring the civil suit.  In any event, this case must be tried, if for no other reason than for the following exchange.

Prosecutor:  And what did you hear?

Otto: Sounds of a sexual nature.

Defense: Objection, conclusory.

Court: Sustained. Come on, prosecutor. You know what you’ve got to do.

Prosecutor: But judge…

Court: Sustained. It’s up to you.

Prosecutor: Mr. Lehman, can you tell the jury what sounds you heard?

Otto: Oooh. Aaaah. Oh, ahhhh, ooooh.

Defense: Let the record reflect that the witness is grabbing his left breast with his right hand, as his left hand is extended to a place on his body that cannot be seen below the rail of the jury box.

Court:  Will the witness please open his eyes and stop contorting his face.  Eewww.

Defense: Move to strike this testimony, your honor, as the prosecution has failed to lay a foundation for the witness sexual experience to distinguish “sex sounds” from, say, a decent meal.

Prosecutor:  But your honor…

Court: I’m gonna be sick.

Otto:  When I first played seven minutes in heaven with Hilda when we were twelve,..

Tell me that wouldn’t be worth it?

Wachs is charged with verbally simulating sex in front of a child. She’s not a favorite resident in Bartow, after she challenged the Polk sheriff for taking the basketball hoops intended for the local jail and giving them to the local churches instead.  Darn atheist.

But even if Wachs emitted sounds that would make Meg Ryan blush, is that a crime?  Consider the ramifications for cheaply built apartment buildings and hot bed motels.

Use what you got.  The  twinkie defense may not be much, but when there’s nothing else available to explain an aberrational killing, go for it.  Sure, people will make fun of you, ridicule your strategy, make you the poster boy for legal insanity, but what’s the alternative?

There is  some evidence that the “gay panic” defense was first attempted in 1987, when Joseph Mitchell Parsons, the Rainbow Warrior, claimed that he murdered Richard Lynn Ernest because of the shock caused by the latter’s homosexual advance.  It didn’t go well for Parsons, who was executed in 1999.

Then there was the Jonathan Schmitz, who killed his buddy Scott Amedure after the revelation on the Jenny Jones Show that the latter had the hots for the former.  That didn’t work out too well either.

Yet, the “gay panic” defense rears its fabulous head again, this time raised by former Times Square billboard model Ray Armstrong who strangled his long-time friend, Anthony Williams.  Strangulation is a particularly brutal, personal, way to kill a person.

Defense attorney Joseph Canuso said a defense psychiatrist had determined that at the time of the killing, Armstrong had a panic attack that rendered him “incapable of forming the specific intent to kill” and that the panic attack had been brought on by Williams’ “attempt to have sexual relations” with Armstrong.

Although it has no specific definition, the gay-panic defense typically rests on a defendant’s being so shocked by sexual advances from someone of the same gender that he assaults or kills the person. Canuso did not use the term “gay panic” in his arguments.

Is it possible that Armstrong was gripped by momentary psychosis, caused by a homosexual advance?  Sure. Why not?  When it comes to the strange stuff that goes on in a person’s mind, who is to say that it doesn’t happen.  The possibilities for bad things to happen in people’s heads seems endless.  But that doesn’t address whether a person’s panic at the homosexual advance of another constitutes a defense to putting one’s hands around a neck and squeezing.  Squeezing.  Squeezing.

The “gay panic” defense hasn’t always failed.  Joseph Biedermann was acquitted in Illinois for fatally stabbing Michael Hauser 61 times.  Of course, stabbing a person 61 times is an awful lot of time.  Far more than needed to kill someone (assuming mediocre aim), it reflects something awfully bad happening in the mind of the guy with the knife. 

One would suspect that somewhere during the course of the killing, the stabber would tire, take a breath, reflect on what he was doing, notice that things had gotten just a wee bit out of hand.  The claim was that Biedermann stabbed Hauser to stop his sexual advances.  It’s hard to imagine that Hauser hadn’t stopped of his own accord by, say, the 58th stab.  But Biedermann’s lawyer, Sam Adam, Jr., pulled off an acquittal, notably forcing the jury to decide between first degree murder and a walk. 

What makes the gay panic defense particularly troubling is that it smacks of validation of bias and hatred.  Hate gays? Well, here’s your chance to murder one and walk away.  Whether such hatred stems from latent homosexual feelings, societal prejudice, whatever, the idea that someone else’s sexual preference, even if acted upon (short of a rape), provides justification for killing them is anathema to most of us.  We won’t accept it as justification, and even if true, refuse to acknowledge its legitimacy.

Still, there is no question but that the defendant has a right to present a defense.  We may not like his defense, and may find it socially unacceptable, but the explanation for the conduct comes from the defendant, not our approval of the defendant’s conduct.  Does this right to defend extent to things we don’t want to accept as viable?  Assuming the defendant can prove, conclusively, that his conduct was the product of “gay panic,” then what?

If the court allows the defense to present any defense it can muster, even if that defense is an appeal to hatred and prejudice, it opens the door to more evils than one can imagine.  The religious fanatic can argue that the Bible says homosexuality is evil and most be wiped from the face of the earth.  The race-hater says black intermarriage is destroying our nation and he had to kill the black man with a white woman to save the America.  No matter how crazy or bizarre the claim, it would come down to whether the defendant believed it, and would entitle crazy people to act on their own crazy ideas.  The list of horribles is endless.

On the other hand, this may well be the cause of a killing, despite its intrinsic craziness, and should the decision of whether to convict or acquit fall to a jury rather than a judge who determines that nobody is going to argue in his courtroom that killing someone because of their sexual advance is acceptable?

While it may well be argued, let the defendant present any defense he chooses, and let the jury convict him for murder in five minutes.  Except, it may not happen quite that way.  It may be the jurors harbor similar bias, even if not to the same degree as the defendant.  It may be that the jurors find gay panic completely understandable, and the “choice” of being homosexual a risky, dangerous proposition.  The gay guy got what he deserved, in other words.  Don’t think any rational jury could think this way?  Don’t kid yourself.

Pennsylvania Judge Gwendolyn Bright will decide in advance of Armstrong’s trial whether she will allow him to argue that his killing of Michael Hauser was caused by gay panic, and thus that it constitutes a defense to murder.  Whether he ate a twinkie before the killing is not as yet known.

H/T Bad Lawyer

It’s a blessing and a curse, technology.  The trick is figuring out which is which, but when there is money to be saved, process to be expedited, it tends to blind us to the downside, or at least make the problems sufficiently palatable that we will pretend they aren’t that bad.

Doug Berman at  Sentencing Law & Policy posts about an AP article in the  San Francisco Chronicle addressing the use of video court appearance.

George Villanueva, charged with first-degree murder in the death of an NYPD officer, will not leave jail for months of pretrial hearings.  Instead, he’ll be beamed into the courtroom via video as lawyers discuss his case in front of the judge.

Villanueva’s case is part of a surge in court appearances done by video in New York and around the country, as cash-strapped communities look for ways to boost efficiency and cut costs. The tools are used in courts large and small, and the savings for some are staggering: $30 million in Pennsylvania so far, $600,000 in Georgia, and $50,000 per year in transportation costs in Ohio….

That’s good money.  More to the point, that’s good money that, if it doesn’t have to be spent, can be used elsewhere, or never taken.  If the use of video court appearances makes the physical presence of defendants in court unnecessary, then it’s a tech blessing.  So is it?

Advocates say the virtual hearing is easier on defendants, who don’t have to get up at 4 a.m. to be shuttled with other criminal suspects to court, only to wait hours standing and handcuffed for an appearance.  Judges say their cases are moving faster.  And civil liberties groups say the practice raises no red flags.

It’s certainly true that incarcerated defendants hate that they have to get up in the middle of the night to make court appearances.  The process is a huge burden.  And the rather pathetic reality is that most court appearances in criminal cases are utterly pointless and routine, often to submit a paper, learn that nothing is going to happen and set the matter for its next court date.  This can go on for a year.  Years, even.

So good thing all around?  “Civil liberties groups,” whoever that is, say video court appearances are cool with them.  End of story?  Not entirely.

Two things immediately jump out.  First, while most appearances in court are nothing more than a huge time waster, where nothing happens of any utility and serves to do nothing more than waste half a lawyer’s day and a well-pressed shirt, sometimes a critical moment emerges, unanticipated, whether because of a plea offer, a missing witness, an inadvertent assertion by a prosecutor, who knows.  These are the moments a defendant lawyer lives for, jumps on, exploits when the opportunity presents itself.  Except, it often requires a private whisper of approval by a client to act.  Just a head turned sideways, a hand on an arm exerting unusual pressure, a knowing look in the eyes of a frightened man.

The defendant is one the big screen TV looming over the well?  Kiss that moment between lawyer and client good-bye.  Would the defendant trade sleeping late for seizing the opportunity to win his case?  I suspect he would, but there would be no way to know what day, what appearance, an opportunity will reveal itself.  And so it would be lost.

More common to the situation, however, is that incarcerated defendants want to see their lawyer.  They are isolated in jail awaiting trial.  They hear others talk about their cases, lie through their teeth about how great they’re doing (never recognizing that they are still sitting in jail as they crow about their legal finesse), and grow depressed and fearful that their life isn’t doing nearly as well.  They become angry and paranoid,  They need contact and information.  They need to speak with their lawyer.

Granted, even incarcerated defendants should have a regular and ongoing opportunity to communicate with their lawyer.  Face to face meetings, papers handed back and forth, are deserved by defendants in jumpsuits as well as those in the office.  But it often doesn’t happen, as time is scarce, jail visits suck up an enormous amount of time (the waiting to get in, and then to have the client brought to the visiting room, can take hours) and there is always other work to be done.  And when there is nothing to discuss, as is far more often the case than defendants want to hear, it’s hard to justify a day lost to handholding when there are lives to be saved. Just not that defendant’s life.

Court appearances take up the slack.  Defendants get the chance to see that their lawyer is still breathing, knows their name, cares.  The defendant needs to know that he’s not forgotten. He needs to know he’s not alone. He needs to look into his lawyer’s eyes and see that there’s something burning in there.  Take away these meetings and the defendant is left to wonder in the darkness of his cell whether anyone in the world is watching out for him.

Does this make video court appearances a sufficient problem to raise serious concerns?  That’s hard to say, and likely varies from case to case.  If the defendant has sufficient access to his lawyer, then the need for a face to face in court is lessened.  If the technology allows for private discussion, then perhaps it can compensate somewhat for the inability to get instantaneous feedback when opportunity arises.  It’s not the same, but it’s something.

And if the defendant isn’t going to be physically present in court, I can’t help but wonder why the lawyer needs to sit on a bench for an hour to adjourn a case either.  While this won’t save the state any money, it could do wonders for the lawyer’s time and wallet. 

The point isn’t to reject, knee-jerk, the use of technology for all purposes, but rather to recognize that there are things being lost in the process, and consider the trade-off.  There is much to commend video court appearances, but they are not without issues, no matter what red flags civil liberties groups don’t see.

Through acknowledgement that it might fall short of a panacea, maybe the problems can be addressed and accommodated, and just maybe the use of technology can be tweaked so avoid, or at least diminish, the downside of appearing in court by video.

The call began with an unusual question:  What can you do for me?

This might be a perfectly appropriate question for many calls, say to plumbers or car dealers, sellers of small electronic appliances.  But as an opening gambit in a call to a criminal defense lawyer, it was so terribly wrong as to be jarring.

The change is upon us.  The television commercials, the phonebook advertisements, the marketing blogs, have made their existence felt.  They are changing the nature of the practice of law.  They are turning clients into consumers.  And those who once were clients think they’re becoming savvy consumers.  The  internet tells them how to do so.

I thought for a second how to respond?  A free dessert with their entree?  A buy one, get one free deal?  Maybe new and improved lawyering? 

What the called was really asking was obvious.  What would I guarantee?  Would I put my word on the line by making the promise they wanted to hear?  Maybe offer to trade my fee for results?

The caller already had a lawyer, one who was willing to go meet him at the jail along with a few other lawyers.  There would be no fee for going, and no fee for the losers of the beauty pageant.  They would sit down in the windowless room and make their pitch.  He would ask each the same question, and see who would say the words he wanted to hear.  What can you do for me?

But the lawyer who won the tiara didn’t produce to his satisfaction guaranteed.  He was still in jail, despite having paid the lawyer to get him out. Now he wanted a new lawyer to satisfy his needs.  It’s not that he was unwilling to pay, but that he expected results.  What can you do for me?

His first lawyer was found on the internet, where a friend used Google to identify the top few contenders for the job.  It was a careful search, showing a great deal of web-smarts in making sure that the lawyers selected had the requisite experience in federal court.  She carefully parsed each website to see that it contained the words, “experienced in federal criminal defense.”  She knew enough to ask how many such cases the lawyer had done like the one at issue, and carefully wrote down the number beside each lawyer’s name.

I was asked the question as well.  I said, “beats me.  A thousand?”  I never kept track.  Maybe I should have, but it never dawned on me thirty years ago that somebody would expect me to keep a list of every case I ever handled.  Some people kept a list of their trials, of their wins and losses.  I never did. Each case was sui generis to me, so it never occurred to me that I would be called upon to give my stats.

The idea worked well for Sy Syms, whose motto was “an educated consumer is our best customer.”  Of course, Sy was talking about a person buying clothing, who, at least by his theory, would appreciate the quality of his goods relative to the price.  It makes sense for someone selling clothing.

It makes less sense for lawyers.  It makes no sense for criminal defense lawyers.  Past performance is no guarantee of future results.  More importantly, we don’t sell results.  Or at least we didn’t until somebody got the brilliant idea that if he just started “suggesting” that by paying him money, the desired results were “no problem.”  The worst that could happen is that he got paid and the client was angry about not getting the results he paid for. 

The next lawyer, seeing that he just lost a fee to the guy who “suggested’ that he could produce results, realized that he had to one-up his competition or starve.  And so he did what he had to do.  When asked what he could do that the other lawyer couldn’t, he had his list prepared :

In his advertising materials, Respondent included false and misleading statements regarding:  his experience and his associates’ experience; the firm’s areas of practice and past case results; the assignment of cases among the attorneys in the firm; the firm’s reputation; the firm’s office locations; and the foreign language ability of the firm’s employees.

In terms of his experience, Respondent included a statement on his website and in his firm brochure that he had “worked in the legal environment for over twenty years.”  Although Respondent had worked as a clerk for a law firm while in college and law school, he had only actually practiced law for about seven years when these materials were disseminated.

Respondent also overstated the experience of his associates on his website.  At the time the website was published, the firm’s two associates had been admitted for less than one year, yet the website referred to the firm’s “numerous trained and experienced attorneys.”  The website also included phrases describing the firm’s attorneys as “thoroughly familiar with the local court system”, “highly skilled”, possessing “wide-ranging knowledge”, and having a “deep personal knowledge of the courts, judges, and other courthouse personnel.”

Regarding the firm’s areas of practice and the types of cases handled by the attorneys, Respondent’s website included a statement that “our attorneys handle all types of legal matters in state and federal court in South Carolina” when, in fact, that was not the case.  The website also stated that the firm represents clients “in every level of the South Carolina state court system”, which was not true.

Respondent’s website also stated that “[e]ach attorney with Coastal Law Firm focuses his or her practice exclusively on one area of the law [thus] each attorney is deeply familiar with the law and procedural issues related to their clients’ cases.”  However, Respondent listed at least twenty-seven distinct practice areas on his website even though only three attorneys (including himself) were employed with the firm.

Respondent’s website further stated that the firm had served clients in constitutional law, civil rights, ethics and professional responsibility, and toxic torts.  No lawyer in the firm had actually handled any matters in those areas; however, they were willing to accept such cases.

Additionally, Respondent’s website contained a page entitled “Consumer Protection and Products Liability Lawyer.”  The page claimed that the firm has “a history of winning [products liability] cases” and that it employs “defective products liability lawyers” who “understand how to deal with both corporations and insurance companies and have a history of winning cases for our clients.”  On another page on the website, Respondent stated that “At Coastal Law, our . . . product recall lawyers understand what is required in filing a medical injuries claim for manufacturer negligence in producing a hazardous drug or product leading to a dangerous product recall.  We can aggressively pursue your legal rights against negligent corporations that may have introduced a product that damaged your health.”  Neither Respondent nor any lawyer in his law firm had ever handled a products liability matter.

In terms of the firm’s office locations, some of Respondent’s telephone book advertisements stated that the firm had offices in Georgia and Florida.  At the time, Respondent had a referral arrangement with firms located in those states and had plans to merge his firm with another South Carolina lawyer, who had offices in Georgia and Florida.  Respondent’s firm, however, never actually operated offices in those states.

With respect to the foreign language ability of the firm’s employees, Respondent’s advertising materials included the phrase “We Speak Spanish” written in Spanish.  None of the lawyers in the firm spoke Spanish.  Only part of the time when these advertisements were published did the firm employ a staff member who spoke Spanish.  The inclusion of “We Speak Spanish” in Respondent’s advertising, particularly at times when no one in the office spoke Spanish, was misleading as it implied that the firm employed Spanish- speaking attorneys.

As to the firm’s reputation, Respondent’s website included a number of statements that could not be factually substantiated such as the firm “developed a reputation over the years for outstanding results” and the firm is “recognized as an established, experienced, and reputable local Myrtle Beach law firm.”  Although Respondent admitted at the hearing that the inclusion of this language was a “mistake” as his law firm had not been identified as a leading law firm or received special recognition, he claimed it was never his “intention to deceive.”

And the list went on.

In his advertising materials, Respondent improperly compared his law firm’s services to other law firms in ways that could not be factually substantiated with statements such as “best attorney available”, “most effective legal services”, and “best services possible.” Respondent acknowledged that it was inappropriate to make these comparisons to other lawyers.

And on.

Respondent admitted in his Answer that his firm brochure characterized the quality of his firm’s legal services for criminal defense clients as “tough criminal defense representation.”  He also admitted that his website characterized his firm’s attorneys as:  “highly skilled at obtaining bonds for their clients”; “dedicated attorneys who provide excellent legal advice”; “maintaining a high degree of professionalism” in real estate matters; and “intelligent”, “competent”, and “full service.”

And on.

Respondent’s website referred to the firm’s “expertise” in personal injury matters and the firm’s “expert nursing home litigation advisors.”  The website and firm brochures also stated that the firm “specializes in several areas of law.”  Respondent, however, admitted that no one in his firm was a certified specialist in any area of law.

And there is still more on the list.  There is no place to end, because whatever is on the list will be on the other guy’s list as well, and each tries to outdo the other to show why he, rather than the other guy, should be the lawyer to whom the money should flow.

What can you do for me?

My answer was brief.  I can defend you, nothing more.  I don’t even validate parking.

Is this the question you want to answer the next time the phone rings?  How low will you go to please the savvy consumer of legal services?

To underestimate the pervasiveness of grocery clerks with checklists controlling every facet of life, law included, is a terrible mistake.  Even the 10th Circuit Court of Appeals, masters of their domain when it comes to keeping drug dealers convicted and imprisoned, will jump as high as need be to appease the grocery clerk.

Consider what happened in United States v. Ortiz, a sweet little drug appeal where the court found that the prosecutor engaged in misconduct, your improper questioning to reveal that the defendant’s expert had testified on his behalf in his previous trial. Oops, did that reveal defendant’s propensity toward crime. Sorry, judge; it just slipped out. Let’s pretend it never happened, and we’re sure the jury will ignore it. 

First iteration of the decision, prosecutor committed misconduct, so the court found . . . wait for it . . . prosecutorial misconduct.  It seemed appropriate at the time.

But then came the grocery clerk.  Via the Tenth Circuit Blog :

U.S. v. Ortiz, 2011 WL 1388789 (4/13/11) (N.M.) (unpub’d) – This amending of a prior decision provides an interesting insight into how the US Attorney’s Office works, or doesn’t. In the original decision, the 10th Circuit said an AUSA’s improper questioning constituted prosecutorial misconduct. The government won anyway because it was found not to be prejudicial enough to warrant a new trial.

Nonetheless, the government moved to amend the decision because a court finding of misconduct triggers a whole investigation by Eric Holder’s folks in D.C. But if the court just says the prosecutor did something improper, that does not trigger an investigation. The 10th obligingly changed its wording to say: “the prosecutor asked an improper question that Ortiz alleges rose to the level of prosecutorial misconduct.” Problem solved.

And the sheer quantity of drugs, with an estimated wholesale value of nearly $400,000, “might also, and legitimately, lead a jury to consider it less likely that the drugs would be transported without the driver’s knowledge.” Id. The evidence was more than sufficient to permit a rational jury to find that Ortiz knowingly transported the drugs found in his trailer.

This is not a case in which the prosecutor engaged in a few minor incidents of improper conduct. Rather, the prosecutor engaged in a pervasive pattern of inappropriate questions, comments and argument, throughout the entire trial, each one building on the next, to such a degree as to undermine the fairness of the proceedings. Although we are not convinced that any individual instance of the prosecutorial misconduct of which Higgins complains would, by itself, require reversal, we conclude that the cumulative effect of all of the misconduct does require reversal.

Brian Tannebaum twitted that he was putting the finishing touches on his presentation about online ethics.  This is the twitter version of a firebomb, as he’s neither inclined toward subtlety nor tolerance for deception.  It was only a few days after a  full day program by the Practicing Law Institute in Manhattan, the mood set by Steve Rubel, described by the program’s moderator,  Kevin O’Keefe :

Steve is a true digital media thought leader, having blogged actively since 2004 at  Micropersuasion and now at The Steve Rubel Lifestream. He joined  Edelman, one of the world’s most respected public relations firms, as EVP/Global Strategy and Insights in 2006 to help the firm use blogs more effectively, and works with clients to unify their communications strategies across traditional and new forms of media.

Ethics and Online Marketing – Brian Tannebaum, Lawyer – (1hr CLE)

Social media and online marketing have brought a variety of ethics concerns into question for lawyers. This Ethics of Online Marketing session is designed to help lawyers and legal marketers understand the professional ethics rules and state bar regulations governing online advertising, websites and social media.

Just when you thought the backlash to  watching  children molested by government employees might return a little sanity, moderation at least, to air travel, we are staring at the next great devolution of civil rights instead.  The irony is astounding, as it comes from our great victory against the terrorists, the killing of Osama bin Laden, where information was seized showing a plan to attack a train. 

As if nobody thought that possible, despite it having been part of the original 9/11 Commission recommendations because it was obvious from the outset.  But now that we have confirmation from within the million dollar mansion, it’s the new horizon of security.  Naturally, New York Senator Chuck Schumer wanted to be ahead of the curve.

A senator on Sunday called for a “no-ride list” for Amtrak trains after intelligence gleaned from the raid on Osama bin Laden’s compound pointed to potential attacks on the nation’s train system.

Sen. Charles Schumer said he would push as well for added funding for rail security and commuter and passenger train track inspections and more monitoring of stations nationwide.

“Circumstances demand we make adjustments by increasing funding to enhance rail safety and monitoring on commuter rail transit and screening who gets on Amtrak passenger trains, so that we can provide a greater level of security to the public,” the New York Democrat said at a news conference.

Amtrack has been having a field day advertising that its passengers only take off their shoes if they feel like it.  Advocates of air travel safety have snarkily responded to complaints about the TSA by saying, if you don’t like it, take a train.  What’s next, walk?  It might have been “drive,” but who can afford that luxury?

There was little question that the “relief” felt after the killing of bin Laden didn’t spell the end of the War on Terror and the return of American freedom.  The real question was how would our success in the War be bootstrapped to justify yet further intrusions.  The argument wasn’t hard to figure out: the equation had previously been tempered by our lack of accomplishment in “winning” the war on terror, showing that while we made life more miserable and less free for all Americans, we hadn’t done a thing to the terrorists. 

And now we have.  Proof that our methods work.  Best not to think too hard about it, and just bask in the glow of success.  Now that we have enjoyed a huge accomplishment, particularly since almost ten years have elapsed with exceptional Americans looking rather impotent, we can be proud of ourselves again.

Yesterday, there was a discussion on twitter, to the extent such a thing is possible, brought about by two assertions: First, that no tear should be shed over the killing of Osama bin Laden.  Second, that we should trust the judgment of Seal Team 6 in having killed him.  Neither of these propositions is particularly controversial.  While there are some nagging questions for nit-pickers, they conform with the sensibilities of most Americans.  As people who, at least to Americans, are better off dead, OBL was top of the charts.  And as dedicated, well-trained, trustworthy military operatives go, Seal Team 6 performed spectacularly.  Certainly, no American would trade the life of a member of ST6 for that of bin Laden.

The discussion wasn’t about whether these assertions were right or wrong, but about how we explain the support for them.  The problem, as I saw it, is that the paradigm shift from war over sovereignty to war against shadows rendered all the principles upon which we historically relied too fuzzy to work.  This means that we can believe what suits our sensibilities, but we cannot offer a rational justification that doesn’t similarly apply to the methods being employed by our own government with which we don’t agree.

If OBL’s killing is justified because “we” believe him to be evil, then killing people “we” believe to be evil is justified.  Who the evil person is depends on who the “we” is, and if we are each permitted to choose one person we believe deserves to die, then we are likely to find a lot of dead bodies littering the landscape.

If ST6’s decision as to the need to kill OBL should be trusted (and assuming they weren’t under orders to make sure they didn’t return with a live body) because they are dedicated, well-trained and trustworthy, then what of the actions of police officers and SWAT teams who are similarly placed in life and death situations, forced to make split second decisions, and who shoot an unarmed person through the head?  Sure, ST6 has better training than police, but there are many who believe that police training and trustworthiness is more than sufficient to let them make the call without being second guessed.

The discussion was enlightening only to the extent that it shows how we substitute our personal sensibilities for logic when we reasoning fails.  Whenever the logical extension of an argument ran into a brick wall, it lapsed back into the irrational, “well, I think so.”  We’re a nation of people who can’t distinguish between personal feelings and reason.  We’re a nation of people who don’t want to be forced to think.

And this is how Chuck Schumer’s terrorist train list will meld with the feelings of a grateful nation, seizing the opportunity of minds muddled by feelings so strong that they preclude many, even criminal defense lawyers on twitter, from realizing that they can have valid feelings that defy reason.

For those of us who watched with dread when Congress passed the USA Patriot Act without any thought whatsoever following 9/11, a law filled with every hare-brained wish-list law enforcement initiative previously rejected as outrageous and unacceptable to a freedom loving nation, we see ourselves sliding further down a slope from which we will never recover.

It’s not that there is significant disagreement about either the killing of Osama bin Laden or that Seal Team 6 did a spectacular job on its mission.  But we recognize that not everything with which we agree can be rationally justified.  We realize that the failure to understand that sometimes, only under the most unique of circumstances, can lead us to accepting lists of people who can’t fly, can’t ride on trains, and don’t deserve to live.  And when these bad things happen, and the very same people raise their voice in outrage, those same sensibilities will prevent them from realizing that it’s nothing more than the natural product of their desire to explain their personal sensibilities.

Schumer is wrong.  This no train list takes a horrible idea and makes it worse.  Security does not enhance freedom.  And you need not have a rational explanation for why you will shed no tear for Osama bin Laden, or applaud Seal Team 6.  Sometimes, events transcend explanation, and that’s what saves us from making more terrible mistakes.

Don’t blame me if this seems unfair, as I neither know Florida criminal defense lawyer  David Joffe nor have any reason to believe that he’s not a fine lawyer.  But the  South Florida Lawyers blog made the point, and who am I to ignore it?

Joffe, like many lawyers, sees the future of his business growth coming from social media marketing.  But getting the word out is, well, difficult.  And so, Joffe got help, thus violating  Turk’s First Rule: Outsourcing Marketing = Outsourcing Ethics.  Here’s some of the gems from the  international press release about the greater glory of Joffe:

People running helter-skelter to find the best criminal attorney in Fort Lauderdale do not have to worry now, as David J. Joffe is an expert best criminal lawyer in Fort Lauderdale to give a strong advocacy to your case.

Certainly everybody wants the “expert best” lawyer, as opposed to some expert, middle of the road, lawyer.  But just how much of an “expert best” lawyer is he?

Advocate Joffe also has a listing in the Martindale-Hubbell Bar Register of Preeminent Lawyers making him one of the top five criminal attorneys in the US. For the past 90 years, this register lists the most renowned professionals in the legal community.

As they say at South Florida Lawyers, top five is not too shabby.  But I’m AV Preeminent too, and nobody told me I was in the top five.  Maybe I’m number 6?  You’re probably saying to yourself now, “sure, he’s top five, but why Joffe and what’s he going to do for me?”

Moreover, you will come across many advertisements in Fort Lauderdale for hiring a criminal attorney, but it is crucial not to depend on them because for a fort lauderdale criminal attorney what counts the most is experience.

Advocate David J. Joffe makes strategies for cases keeping in mind the minimization of effects and consequences of criminal cases, so that clients can have more of their concentration in their professional and personal lives.

All these along with the experience of various cases make Advocate Joffes credentials undisputable. You can stay completely satisfied with your case once Advocate Joffe takes your case in hand.

If you have an accusation registered in any criminal litigation, then it is in your best interest to consult Advocate Joffe and Joffe and his staff will devise an effectual defense plan.

What more could you want than an effectual defense plan?

The sad part about this is that David Joffe is likely a fine lawyer, trying to bring in business like many others.  For whatever reason, he bought into the belief that spending money on social media marketing is the wave of the future, and no doubt he expected the money spent to produce results.  What he likely didn’t expect is that the people using his name and putting together words on his behalf had barely a passing familiarity with the English language. 

This is just too funny for words, on the one hand, but no doubt not terribly funny for Joffe, who has become a laughingstock at the hands of his marketer.  Not only are the claims made in his name ridiculous, but this press release makes him appear to be functionally illiterate.  At the very best, Advocate Joffe has been turned into an international fool.  And paid for the privilege.

Whether David Joffe’s performance as a criminal defense lawyer deserves this sort of public approbation, his turning over his name to a marketer most assuredly does.  When you hand over your good name to a marketer to dress you up in hot pants and parade your down the boulevard, you have no cause to complain when you end up looking disreputable.

Never forget Turk’s First Rule: Outsourcing Marketing = Outsourcing Ethics.  No matter how sweet the marketers’ pitch, it’s your good name on the line.  Do you want to be the “expert best” “top five” lawyer who devises “effectual defense plans”?  Do you want to pay to turn yourself into a joke?

Building stuff is hard.  Try finding someone who actually does what he says he’s going to do, does it well and does it for the price agreed upon.  Anyone who has endured construction knows the story, but you would think that the problems faced by mere mortals wouldn’t be shared by the chosen Nine.  You would, however, be wrong.

Via Tony Mauro :

U.S. Supreme Court Justice Antonin Scalia was making a presentation to foreign dignitaries at the court a few years ago when the sound of a hammer drill erupted nearby.

In 2006, Chief Justice John Roberts Jr. was in the midst of a filming session when a noisy construction worker interrupted.

Vignettes like these from the long-running $75 million renovation of the court’s majestic building in Washington are central to a sharp dispute that has broken out between the construction company doing the work and the government agency overseeing the project.

Renovating the Supreme Court brings a somewhat unique problem to the fore.  How, exactly, does a contractor make his case when the witnesses against him are the justices?

And yet, this hasn’t stopped the contractor, Grunley Construction, from pointing the finger at the justices and blaming them for $40 million in overuns and delays.  The reason?

But the court placed one major condition on the project: The justices and court staff would stay in the building. Even the government acknowledged in a brief that the continued occupation of the building was “the critical factor giving rise to this dispute.”

At the outset, Grunley, which has participated in many major government renovation projects, pledged “zero tolerance” for interruption of the court’s activities. The company prides itself on “stealth contracting.” One project document stated, “The Grunley project motto will be, ‘No interruption to the court.’??”

That, apparently, didn’t give mean that they couldn’t do work during oral argument.  The original contract provided that the contractor should anticipate that work would be interrupted for 16 days during the calendar year.  But once Grunley got rolling, the special sense of entitlement that comes with a hard hat kicked in.

In another incident in 2006, Grunley workers were found using a hammer drill and pouring concrete while the court was in session.

“When questioned, Grunley’s superintendent was not even aware that it was a court day,” according to a report from the Architect of the Capitol.

The Court Marshall, Pamela Talkin, started issuing memos about when work could not be done, and anyone familiar with the words “change order” knows that such a memo can only lead to one thing: More Money.

The idea that a contractor could unwittingly shut down the function of a branch of government like they do a public road when their big truck needs it more than the rest of the driving public seems almost comical.  They aren’t doing a kitchen reno on a split level, where Mom can scoot out to McD’s if the stove doesn’t get installed on time. 

On the other hand, the building was in desperate need of repair, and construction work requires that you let the contractor do his job.  It gets loud and ugly before it gets better.  That’s the nature of the work, and it doesn’t change because the locals wear black robes.

For those who wonder whether the isolated, sanitized existence of a Supreme Court Justice interferes with his or her ability to understand and appreciate what us groundlings go through in our mundane lives, at least we can take comfort in one thing.  They know what it’s like to live through construction.

Still, the question remains whether an originalists’ view of the Supreme Court renovations would compel the conclusion that the Grunley crew be paid for the time lost while the court droned on, or flogged in the public square for their inability to grasp that the public welfare comes before trapezoidal windows.

A phenomenon occurs in court where a person appears before a judge who seems to be on top of their case, aware of the issues, interested in the arguments and, maybe, even dubious of the prosecution.  To a defendant, it’s an exhilarating experience,  Hope, dreams of a positive outcome are lit, and the defendant walks out of the courtroom with his head held high and his spirit soaring.

This was experienced by  Joel Rosenberg, my pal Jdog, after his court appearance last March.  Judge Todrick Barnett ordered the parties to brief a critical issue, one that cut decidedly against the prosecution’s theory that because there was a spare courtroom on the third floor on City Hall, which also housed the office of the Chief of Police, an order prohibiting the carrying of guns in courthouses applied to the building as a whole.

With this big issue on the table. Joel’s lawyer, David Gross, prepared a bang-up memorandum.  The prosecution did a yeoman’s job.  The stars were aligned, a judge who grasped the issue and demonstrated not only an interest in getting to the heart of the matter, but the strength of intellect and will to hold the prosecutor to the law.  This judge wasn’t about to let the state wiggle its way around the law to nail Jdog when no crime occurred.

And with hope and trepidation, Joel returned to court on May 2nd.  The story is told by a fellow named Rob, a witness to the proceedings, though not necessarily in agreement with Joel’s methods.

The Judge Barnett I saw yesterday was much more apathetic about David Gross’ defense. To me, it appeared that he had just crammed through the briefs in the moments before the hearing.

The city did not meet the requirement to prove that the court has authority over the entire building, and Judge Barnette didn’t care. The judge did not consider the different signage, and was not able to make any strong statements (like he did at the March hearing).

The Judge Barnett I saw yesterday seemed afraid to make any interpretation of the law, the court order, or the court’s authority. He was all too happy to throw the case to a jury, over making any statements, or judgement that would set a precedence for anything, or be anything notable.

He simply wants to fly under the radar.

With Judge Barnett’s 180, Joel could be in trouble. This is an important case, with serious potential ramifications for permit to carry holders.

What happened?  It could be any number of things, from someone “reaching out” to Judge Barnett to remind him that getting along with the cops and prosecution would make his job easier going forward, to having had a lousy breakfast that morning and being unduly concerned about his fiber intake.  It’s impossible to know.

What is clear, however, is that the phenomenon that happened is hardly new, though one that seems to mysteriously elude judges since the dawn of the legal system.  They knew it when they were lawyers, and had every intention of avoiding it when they took the bench, yet it happens. 

The phenomenon is quite obvious, and one that’s experienced by every lawyer who has ever stepped foot in the well of a courtroom.  The judge who was so knowledgeable and focused, who seemed poised to take the bold step of deciding a hard issue against the might of the state, is nowhere to be found the next time you appear.  In his place is some disinterested, thoughtless and lackadaisical weenie who appears to have no clue why you bothered to put in forty hours of work on the memorandum he directed you to provide.  Indeed, he has no memory of even asking for it, and seems annoyed that you’ve handed him more work to do.  Who is this person in a robe that sits where my judge should be?

It’s heartbreaking to a defendant, to find that the hope you held gently in your chest the last time you appeared is gone.  It’s the same for the lawyer, who thought maybe this time, just maybe, the judge would do the right thing, would show the courage to smack their smirking faces in their ridiculous prosecution. 

Sure, one gets used to adverse rulings even though no reasonable person learned in the law would anticipate it.  The law is wonderful when discussed in theory, but it can be ugly, nasty and stupid in a trial court where all those fine appellate decisions gets watered down to a single word, denied.  They don’t teach this in law school, but it’s the first thing you learn in practice.

There is a very simple reason why a judge would much prefer a jury to rule in a defendant’s favor than to do the dirty work for which he’s paid.  It removes the onus from him and places it one twelve fools.  He can’t be held responsible, so when he goes to parties with other judges and important government officials, no one will look askance at his betrayal of the forces of justice.  The pressure can be powerful, often overwhelming, especially to a young judge who has a great future ahead of him if only he doesn’t blow it by siding with the wrong types. 

Or maybe he just had a lousy night’s sleep, or a fight with his wife, or trouble with his bowel movement.  All of these things can interfere with his performance in court on any given day.  So what if he wears a robe and is expected to remember on one day what he did on another.  Judges are only human.

Then again, defendants are only human too.