The email from Tom was as routine as could be, an unintended consequence of being a blawger.  There are a thousand, maybe ten thousand, Toms out there, each of whom comes to work every morning in the basement of their parents’ home with the hope that somehow, some way, the target of their desire who hasn’t succumbed to the lure of their thousand, maybe ten thousand, predecessors, will be weak today and, maybe, just maybe, bite.

Hi,

My name is Tom and I am a link builder. I sell blog comment links for website owners at low price.
Blog comment links can help you in a number of ways. Here are three major advantages:
 – Increase link and IP popularity
 – Direct traffic to your site
 – Higher rankings in search engines
I can do thousands of blog comment links for your site in a couple of days, and they get indexed very fast. If you would like more details about my offer, or would like to ask me anything you’d like regarding this matter, feel free to reply with a YES to the following email address: tsandersxxx @gmail.com

Best regards,
Tom

So what if its not personalized.  Sometimes the program screws up.  I’m sure Tom would love me if I reply YES.  Oh, and paid.  I could keep him in Cheetos for a week, and that would be awesome.

But Tom is no fly by night SEO bandit.  He’s got a confidentiality warning at the bottom of his email, showing how serious he is, and likely to overcome any aversion I might have to his using a gmail address as a sign of his tech savvy.

———————–DISCLOSURE———————————–
Confidentiality, Privacy, and Security Notice:
The content, materials, and accompanying attachment(s) contained within any eMail (electronic mail transmission) is intended solely for the individual or entity to which it is addressed [authorized recipient(s)] which may be confidential, exempt from disclosure under the Electronic Communications Privacy Act, and/or legally privileged. The message facilitates a previous agreement of the transaction/service of a transactional relationship for which the intended recipient explicitly has double confirmed agreement to be contacted and informed in an ongoing capacity. If you are not the intended recipient(s), responsible for delivering partially or in full any transmission to the intended recipient(s), and/or have received the transmission in error, you are hereby notified you are strictly prohibited from reading, copying, printing, distributing and/or disclosing any of the content, materials, and accompanying attachment(s) contained within. If you have received any portion of the transmission in error, please notify the original sender by forwarding all transmissions to replytotomsanders @seo-links.com and delete the original along with all copies of the transmission to include any accompanying attachment(s). Any views, commentary, and/or opinions presented within are solely those of the author(s) and do not necessarily represent those of any other company(s) or parent entity(s).
At anytime you may stop further transactional communications by letting us know by emailing us at unsubscribeyouremailfromtoms   @gmail.com and you will no longer receive communications from us.
Tom Sanders | 1211 S. Main St, Chico, CA 90119
This advertisement is in complete Compliance with the FEDERAL CAN SPAM ACT of 2003. You may unsubscribe at anytime by simply clicking the http://clients.automateyourlist.com/z/r/?LOxMnExstCzsHIxMHJyctEb0nMwubCzMTA== here within the email.
To Report SPAM ABUSE Please Email The Hosting Company at: [email protected]
———————–END of DISCLOSURE————————

It’s fortunate that Tom put “end of disclosure” so that I didn’t feel constrained to keep his secret, even though his belief that I  “explicitly . .  double confirmed agreement to be contacted and informed,” which I guess would mean that I replied “YES, YES” to his email, though that wouldn’t be possible since his email was the first I’ve learned of Tom and his SEO magic.  And then, there’s no such address in Chico, California, but that doesn’t matter since on the internet, nobody has to actually be anywhere to be real.

Most meaningful to me is that Tom can “do thousands of blog comment links for your site in a couple of days.”  You see, last week, SJ was spammed overnight with 748 comments from a single person.  This week, one fellow has been working feverishly to get a spam comment through over the past couple of days, providing me with about 500 comments as of this writing saying very nice things about me and my posts.  I apparently inspire him.  And, I might add, I respect his tenacity, though it isn’t going to help him get a comment to see the light of day.

But there would no need for Tom, or last week’s spammer, or this week’s spammer, or the ordinary spammers who leave me ten, or fifty, or even a hundred, spam comments if there wasn’t some fool on the internet who thought this was his path to wealth and success.  Many, sadly, are lawyers, and there is no shortage of lawyer spam being left for me from such exotic locales as Russia.  Of course, the lawyers involved know nothing about what their flavor of Tom is up to.  They only know that they wants thousands of comments left in a couple of days so they can be instant internet successes.

What occurs to me as well, however, is how many bloggers enable this “industry” by allowing, even loving, spam comments.  I understand, you get no comments otherwise and you feel very lonely, very unloved.  I realize that spam comments often say very nice things about you, and who doesn’t appreciate a complement, even if it’s written in Cyrillic.  I get it.

And you aren’t alone, as I pointed out to none other than  Legal Blog Watch’s Soaring Lone Eagle Bruce Carton the other day.  And then there are the lawprofs, who prefer to intellectualize the possibility that they really do have fans in far away places who deeply respect their scholarly writings, and just happen to sell used cars and Dubai real estate on the side.

It’s understandable that some bloggers can’t manage to find the time to clean up the spam in their comments.  Lord knows they didn’t put in much time copying a post from a newspaper article and adding their plea to the end to “buy me.”  And then there is the ego issue, how wonderful it is that people all over the world think you’re truly special and adore your posts, who use commenter names like Akron Auto Supply and Cleveland Surplus Underwear.  What blogger doesn’t want a long thread of adoring fans?

Yet, imagine a blawgosphere that wasn’t replete with spam.  Imagine a morning when there wasn’t a hundred, a thousand, spam comments to delete.  If you don’t let your adoring fans use your blog as their personal dumping ground, then they might have to get real jobs.  I hear McDonald’s is hiring.

No, I don’t think today is going to be Tom’s day.  At least not here.  In fact, I don’t even think there is a Tom, any more than there is a business operating in the park where his address should be.  It’s the internet, and it’s only as much of an opportunity as we make it.  Not for us, mind you, as legitimate folks are the ones paying money to the scammers and spammers because they know something we don’t.  This is all part of a plan to empty the pockets of desperate foolish people.  That they make our lives miserable in the process is just a side benefit.

Bite the bullet and deal with it on your blog as well.  Don’t make Tom’s day.  And don’t feel bad for Tom.  He doesn’t exist.

Not the usual sort of book I review, but the memoirs of former FBI Special Agent  Jack Owens, Don’t Shoot, We’re Republicans, struck me as the sort of book that might hold some special insight for criminal defense lawyers.  Indeed it does.

Like almost every law enforcement officer, state or federal, I’ve ever known, Jack Owens seems like a guy with whom you want to hang out and have a beer.  He started with the Bureau back when J. Edgar Hoover ruled with his iron fist inside the white lace glove, though he never saw him in high heel shoes and refuses to accept that Hoover and Clyde Tolson were more than good friends.

Owens tells the stories of the tensions of law enforcement from the perspective within the Bureau, bucking the petty rules and being “mavericky” in a place where wearing a blue shirt rather than white was deemed pretty radical.  The book is a series of anecdotes of Owens’ life in the FBI, and what is clear is that the FBI was his life, quickly supplanting his first marriage and two children with barely an explanation.  His dedication toward his fellow agents, his pals, never goes unmentioned, while his children are barely given a thought.

The vignettes are humorous, not in a laugh-out-loud sort of way but in more subtle, more SNAFU approach.  For those raised on the myth of the FBI from Efrem Zimbalist, Jr., this will put an end to any belief that they were the supermen of law enforcement, above and beyond mistake or miscalculation.  Much of the time was spent circumventing their own rules and procedures, and tripping over the criminals they were sent out to capture.  It seems that the Bureau’s success was more a matter of dumb luck than skill.  Yet Owens never doubts that he was on the right team, and that anyone he collared was both guilty and deserving.

While it’s never expressed in the stories, what clearly emerges from Owens’ anecdotes is the belief that the rules, whether imposed by armchair bureaucrats within the FBI or the law, were anything more than a minor stumbling block to circumvent whenever they stood in the way.  There’s never any sign of malice or venal intent at all; If anything, you’re rooting for Jack all along and find yourself enjoying his charming efforts at doing the right thing.

In one story, where Owens is out to capture notorious Vietnam war era Army deserter, Jerry Dale Watkins, he tells of his ride in the wee hours of the morning to a rural house where Watkins is believed to be hiding.  Driving his personal 1964 Volkswagon Beetle with one headlight out, all alone, he’s already skirted enough rules to get him in a serious jam, but he manages to do what no one else could, get to the house undetected.

I drive into Jerry Dale’s yard and kill the engine.  It’s eerily quiet.  The Watkins clan is not stirring. I ease out of the Bug and walk up to the house. There’s a screen door to receive what little breeze the hollows offer in summer. I look inside the house through the screen.  Three bare-armed adults lie asleep on a mattress just inside the front door, a man between two women, a sheet loosely covering them, comfortable as hell.  Clothes and shoes are strewn about the wooden floor.  I try the screen door.  It opens and I quietly step into the house.  There’s a wonderful smell of collard greens.  Standing over the mattress, I get a good look at the guy. It’s Jerry Dale Watkins.

In the Age of Acquiescence, a corporation willing to do anything other than bend over when the government comes a’knocking is a shocking welcome.  After all, if one can buy a bit of good will with the powerful, whether from cash on hand or mere back scratching, odds are that your former federal prosecutor Biglaw specialist advisors will tell you there’s no other route to go.

But Firefox’s mother, Mozilla Foundation, took a different path.  Via Patrick at Popehat :

Harvey Anderson, Mozilla’s lawyer, in response to a demand from the Department of Homeland Security to remove a browser add-on which re-directs traffic from domains seized by the government to the original owners’ new domains:

• Have any courts determined that the Mafiaafire add-on is unlawful or illegal in any way? If so, on what basis? (Please provide any relevant rulings)


• Is Mozilla legally obligated to disable the add-on or is this request based on other reasons? If other reasons, can you please specify.


• Can you please provide a copy of the relevant seizure order upon which your request to Mozilla to take down the Mafiaafire  add-on is based?

Imagine, asking why?  How bold!  Maybe not for you or I, but for a corporation in the Age of Acquiescence?  This is the very definition of bold.  What would it have meant to Mozilla to just go along to get along, to rid itself of an add-on that made the government’s job more difficult?  It’s not like it cost Mozilla anything.  And yet, Mozilla asked “why?”

It’s not that the incentive to be agreeable with anything the government requests only applies to corporations.  How often does a driver open the trunk when a cop asks, “you don’t have anything to hide, do you?”  We know that we really ought to tell the cop to take a hike, yet open the trunk anyway.  It’s just so much easier.

And so it goes for corporations as well, who are only too happy to take what they’re told by their Biglaw specialists is the most cost-effective route, complete subjugation to the will of the government.  What could they possibly gain from fighting or being disagreeable?  So what if they have no duty to comply; do you want an investigation or to make an enemy?  Nooooo, you want to make friends with power.

They don’t want to sell out their integrity and customers, but what can they do?  Here’s a thought: Grow a pair.  Until the day when corporations stop being the patsy of the government under the guise of being good corporate citizens, they government won’t stop asking for your to do its bidding. 

And so, like Patrick, my hat is off to Mozilla Foundation for taking a stand by asking the very simple question, why?  If only more corporate executives and their counsel had the guts to do so.

Via Antonin Pribetic, who stays on the  cutting edge of hip-dom and lets curmudgeons like me know what we’re missing, comes the latest cool place for lawyers to hang, the Legal Playground.  Here’s the new cool:

Who says lawyers aren’t hip? Attorneys have historically been known as stiff and old-fashioned, but today’s generation is an entirely new breed.  They are innovative, open-minded and in sync with the latest technology.  Instead of running to a law library to search for a court case decision, today’s lawyer just picks up their iPad or iPhone and has an array of case law at the touch of their fingertips…literally.  Although some may try to resist change, the truth is that textbooks and journals are soon going to be obsolete.  Nobody is going to thumb through a book to find a lawyer.  Instead they will utilize a browser on their phone.  LegalPlayground.com is the next wave of technology for lawyers.  I may be biased but the facts are the facts.  Members can create a personal profile that displays their professional information for clients and the public.  Similarly, anyone can simply search the website to locate a lawyer by state or practice area.  Whereas a Bar Journal prints a lawyer’s name, address and contact information, LegalPlayground.com provides lawyer with the opportunity to post photos, publications, videos, webouts and blog.  The site also gives each member their own USL that can be included on business cards and websites.  For many solo practitioners and young lawyers working for outdated firms, this is a sigh of relief.  And what’s more…you can download the app on your iPhone to follow your favorite (or most dreaded) lawyer by setting your app to follow that attorney’s blogs.  The stereotype of lawyers as old, stuffy men is about to change.  Meet the lawyers of the 21st Century.  See the lawyers of the next generation.  Catch them all…in the Playground.

Alana Cappello was confirmed as an attorney in good standing with the bar in the following state(s): Florida on April 23, 2011, New York on April 23, 2011

Few stories truly capture the insanity of sex offender registry laws than that of Charles Mader of Albuquerque, who became the subject of a manhunt by Bernalillo County Sheriff’s deputies when he moved from his current residence without satisfying his registration obligation. 

From KOB :

Charles Mader listed his address as a dumpster at 8th and Central in Albuquerque. As a convicted sex offender he must give the Bernalillo County Sheriff’s Department a physical address where he stays, so detectives can keep track of him.

Mader lists the dumpster because he is homeless, but BCSO detectives say Mader moved from the dumpster and didn’t report the move within ten days. That violates his sex offender registration requirements.

Mader didn’t end up on the sex offender registry for some innocuous conduct; he was convicted of trying to rape a six year old boy.  But this isn’t a matter of being sympathetic toward him.  Rather, it’s a product of creating laws that circumvent criminal law process by facile language (it’s civil, not criminal, so it doesn’t count) that are destined to produce outcomes that make it essentially impossible to comply.

It’s unclear why Mader moved from the dumpster.  Maybe he didn’t like what was happening to the neighborhood.  Maybe the business that owned the dumpster decided it no longer wanted a tenant.  But the idea that someone could live in a dumpster, A Dumpster, and use that as a registered address is absurd. 

How, exactly, he satisfied his registration requirement by listing the address of a dumpster is unclear.  Did his mail go to “Dumpster behind 1245 Main Street?”  Was this what legislatures intended in their zeal to protect the public?  Does the registration of a man living in dumpster protect anyone?

What can’t be forgotten is that no matter what Mader did to put himself in this position, he was arrested, convicted and sentenced for his crime.  He received the punishment that society has determined is appropriate to impose.  And then, when it’s all over and his “debt” is paid to society, he gets the right to live out his life in a dumpster, provided he registers with the local police.

On Monday, five deputies hunted for Mader and found him at a homeless facility north of downtown. Detectives on the scene were frustrated with Mader saying they have told him over and over again to register.

Mader told us on scene he wasn’t familiar with some of his registration rules.

Detective Pat Burke, who helped arrest Mader, says he has explained the rules to Mader at least a dozen times.

There’s a good chance that there’s something very wrong with Mader on all levels.  Is he intellectually challenged?  Is he psychologically impaired?  Is he just one really sick guy?  He could well be, and it would hardly come as a surprise to anyone in the system.  So many defendants are truly, sadly, very sick guys.  Even convicted sex offenders don’t ordinarily end up living in dumpsters unless there are other problems as well.  Under bridges, yes, but not dumpster.

Sheriff’s officials say Mader now could face up to 3 years in jail because this is his third offense for failing to register.

In a bad way, this may well be the best Mader has available, three squares and a bed for an extended period of time.  Of course, it’s an expensive proposition, since prison isn’t cheap, and it may not be the way he would choose to live.  And the chances of any problems he might have, psychologically and intellectually, being addressed are nil.  This is warehousing.  He was already warehoused, and that didn’t do much to turn him out on the street better than he went in.

The stories of people who have no business being on a sex offender registry, such as the 18 year old convicted for sex with his 16 year old girlfriend, or the guy urinating outside the bar, present on level of absurdity.  This guy, Mader, presents an entirely different level.  If the issue is that he should be sentenced to life imprisonment because the underlying offense involved molestation of a six year old, an outcome I find wrong but your mileage may differ, then it should be addressed at sentence.

Here, we have just another examples of the permanent underclass created by ill-conceived laws that are embraced without the slightest thought of unintended consequences and the new problems they cause.  Even assuming the worst, did Mader’s being duly registered in his dumpster home make any child safer?

Will anyone be better off three years from now when Mader goes in search of a new dumpster to call home?

H/T Doug Berman

While Balko is off investigating his roots, Peter Moskos is filling in at The Agitator.  He offers a curious self-description:

I’m Peter Moskos, a professor of Law and Police Science at John Jay College of Criminal Justice in New York City. In some ways–as an ivy-league educated egghead, a tax-and-spend liberal, and a former police officer–I couldn’t be more of a miss-match for The Agitator.

While he only worked for two years on the streets of Baltimore as a cop, making it sound more like a research project than a career move, it was enough to become indoctrinated to the culture and mores of the secret blue society.

Self-descriptions notwithstanding, Moskos provides insight into mindset of how he as a cop, and now a guy teaching cops, sees the world.

It what might be end of a long (and glorious?) Baltimore police tradition, two officers were convicted of misdemeanor for picking up two 15-year-old boys and dropping them off far from home, one of them barefoot. The officers were acquitted of far more serious kidnapping charges.

Such shenanigans certain fall under then category of “informal justice,” but it was never clear if it was illegal discipline. Is a long lost walk good punishment all of the time? Certainly not. But might it not be the right punishment some of the time?

He then offers a personal anecdote:

One time I guy in my squad caught two kids throwing and breaking bottle early in the morning. We were a few months out of the academy and the kids were “gigged” with push-ups (ironically that is what we learned in the academy). Was this punishment technically legal? Probably not, but I thought it was one of the smartest thing I ever saw this officer do. A little discretion can go a long way.

The question isn’t whether we agree that the punishment inflicted by the cops, under these situations, was “appropriate,”  Some will. Some won’t. The question is whether you (or I), had we decided to take matters into our own hands with somebody else’s kid, and give them a little bitter medicine for their “shenanigans” would have been applauded by the very same cops who did it themselves.  Or arrested, prosecuted and convicted, including for the charge of kidnapping?

What is it in the cop mentality that makes them believe that their ultra vires choices are more wise, more acceptable, more appropriate, than anyone else’s? 

Consider what might have happened if the two 15-year-old boys had wandered through a tough neighborhood on their way home, been beaten and robbed, or maybe worse.  What if they were struck by a car?  Many 15-year-olds have no identification, and no one would have known who they were.  Their parents would have been clueless as to their whereabouts.  It could have been a tragic disaster.

What about the “gigged” kids?  How bad could push-ups be, right?  Unless one, unbeknownst to the cop, had a heart irregularity and died.  Oops. How long before a story emerged of how the kid had a history of abusing drugs to cover it up?

Given Moskos’ Harvard Ph.D., one would think that his obvious myopia had been worked out of him, that he could see the error of cop-think, the fallacy of its magical belief that police officers possess some greater ability to hand out their personal version of rough justice.  Clearly, this hasn’t happened.

Was this punishment technically legal? Probably not, but I thought it was one of the smartest thing I ever saw this officer do.

It’s quite surprising that Moskos’ point, that every kid who screws up doesn’t need to be put through the official juvenile justice system to teach them a lesson and get them on the straight and narrow, is conflated with the belief that this is best handled by the nearest beat cop.  How about parents?  How about teachers?  How about some recognition that wearing a shield doesn’t make you the arbiter of child-rearing and sound judgment?  They may teach you how to tase at cuffed prisoners who sass you in cop-school, but are you taught that your discretion is now superior to everyone else’s?

We tend to believe that cops are disingenuous in their approach to actions beyond the law, beyond the scope of their authority.  We think they know they’re doing wrong, but they just don’t care because they think their omnipotent.  From Moskos’ post, however, it’s evident that there is a belief that they are really doing a mitzvah, the right thing in setting kids straight without injecting them into a system that no one believes does them any good.

So with shield and gun in hand, the police try to do what they perceive to be the right thing on behalf of our children.  And it would be the same if they happened upon us doing the same, because only cops are imbued with the insight and moral authority to inflict their own brand of “justice”.  They do so with the best of intentions, but still thinking like cops.

By all appearances, the Toronto firm of solicitors is a fine boutique, experienced in a wide-range of international transactional work,  Best of all is their commitment to the client:

At Wagner Elliot LLP w e are committed to providing commercial legal advice of the highest quality at a sensible cost. Our service is: • personal • proactive and • practical Our charging policy is: • flexible • realistic and • totally transparent

If you are too trusting of the invisible, then you buy that $89 ebook that comes with the promise of instant riches, or you sign up for ear candling, or invest time and money with a charlatan. If you haven’t figured out how to discern the invisible stuff that’s true from the invisible stuff that’s a trick, you’re helpless in a world where just about every decision we make has to do with things that are invisible.

Thus, two kinds of serious errors: believing in invisible things that aren’t true, or insisting that the truth might not be. They’re caused by fear, by deliberate misinformation and by being uninformed.

How to discern between the two is our problem, not Seth’s.  That’s how marketing gurus roll.

The slope is becoming ever more slippery.  Only last week,  Brian Tannebaum wrote a provocative post about young lawyers learning to “fake it ’til they make it,” which brought out a surprising number of scoundrels asserting their droits moraux to hold themselves out in best possible light, even if that light is false and deceptive, providing that they believe that they haven’t stretch reality too far.  But at least these scoundrels were actually lawyers.  At least I think they were lawyers.

When all it takes is a website with some generic photos of buildings and the standard verbiage commitment to clients, it no longer requires lawyers to play lawyers on the internet.  The potential is huge, and it can save young lawyers a fortune in law school debt. 

There have been individuals who pretended to be lawyers before.   Dan Penofsky immediately comes to mind, a New York City Assistant District Attorney (and a pretty darn good one) who, as it happens, wasn’t a lawyer, but who managed to get away with playing prosecutor for decades. He tried a good case and was a formidable adversary.  And he didn’t even have a website.

The interwebz is the land of opportunity for the invisible, and as every social media guru and legal marketer points out, all it takes to gain fabulous wealth in the law is to know how to play the internet marketing game better than the lawyer next door.  So if you’re not as adept as your neighbor, or perhaps too shy and reticent to puff your way to fame and fortune, perhaps your best route to success is to get a job with a law firm that has mastered social media and self-promotion.

I hear Wagner Elliot, LLP, would be happy to take you on.  Just send in your equity stake and wait for instructions.

Walter Olson has a post at  Overlawyered about a proposed law before the New York Legislature to  ban the wearing of neckties by physicians in hospitals.

“Some lawmakers in Albany want a state law to prohibit doctors from wearing neckties in hospitals.” They cite a study showing that infectious bacteria might be “carried on ties and other loose-fitting clothing.”

Haters gonna hate.  But in Boulder County, Colorado, haters who say something are going to get convicted of a hate crime based on their words alone.

Adam Liptak writes about the 1996 murder case of Richard Rosario in the Bronx.  On its face, it’s another eyewitness ID case that was pretty common in the Bronx back then, where drugs and murder were similarly common.  And the state courts treated it that way, affirming the conviction and denying leave to appeal.  As routine as it gets.

Richard Rosario was convicted of a murder that took place on Turnbull Avenue in the Bronx on June 19, 1996, based on the testimony of two witnesses who had picked his picture out of a book of police photos.

Rosario was in Florida, and voluntarily returned when he found out the cops were looking for him in the Bronx.  He told them he was in Florida at the time the  murder occurred, and gave the cops the names of 13 witnesses to his alibi.  There was no evidence against Rosario other than the eyewitnesses from Turnbull Avenue. Rosario was represented by serial 18B counsel.

Mr. Rosario’s court-appointed lawyer did ask a judge for money to send an investigator to Florida to interview alibi witnesses. The request was granted, but the lawyer never pursued the matter, and her replacement mistakenly thought the request had been denied.

Rosario had two alibi witnesses, one of whom was his baby mama. The reason she knew he was in Florida was that she gave birth to his son the day after the murder.  It’s the sort of thing one remembers, but then, who can believe a baby mama?

He was convicted.  He appealed and the conviction was affirmed. He moved for leave to appeal to the court of appeals and it was denied. A routine murder conviction.

He brought a state court habeas, with seven additional alibi witnesses.  As reflected in the subsequent 2d Circuit decision,

The court . . . concluded that the government’s case was “strong”; that the prospective alibi witnesses “were, for the most part, questionable and certainly not as persuasive as the two witnesses who did testify”; and that the verdict was “unimpeached, and ‘amply supported by the evidence.’ ”

Though not perfect, defense counsel “represented Rosario skillfully and with integrity.” Routine.  Rosario then brought a federal habeas, and suddenly everything changed. And didn’t change.

A federal magistrate judge ruled that Mr. Rosario’s trial lawyers were “objectively deficient for failing to adequately investigate petitioner’s alibi and present additional witnesses at trial.” There was, Judge Henry Pitman went on, “a reasonable probability that the jury could have found petitioner not guilty of murder” had it heard the missing testimony.

But Judge Pitman said that did not matter, because New York courts were entitled to use an idiosyncratic standard in judging the effectiveness of counsel, one that considers lawyers’ performances over all rather than their isolated errors.

The idiosyncracy is that New York hasn’t adopted the federal test of Strickland v. Washington as its standard for ineffective assistance of counsel.  Instead, it holds tight to People v. Baldi, a 1981 decision that differs from the federal standard because it doesn’t require that, but for the lawyer’s screw-up, there would be a reasonable probability that the jury would have acquitted.  Instead, it’s second prong requires that the lawyer’s mistake merely undermine “meaningful representation.”

What does that mean?  Not much if you’re sitting in the 2d Circuit and the state courts have already held that the lawyer’s representation, on the whole, was pretty good (aside from that one little screw up of not presenting the additional alibi witnesses).  The Circuit saw the problem as one of New York’s disingenuous creation.

New York has, to some degree, combined the two prongs of Strickland. Prejudice to the defendant, meaning a reasonable possibility of a different outcome, is but one factor of determining if the defendant had meaningful representation. New York courts look at the effect of the attorney’s shortcomings as part of the equation in deciding if the defendant received the benefit of competent counsel.

This approach, and the language of Benevento, creates a danger that some courts might misunderstand the New York standard and look past a prejudicial error as long as counsel conducted himself in a way that bespoke of general competency throughout the trial. That would produce an absurd result inconsistent with New York constitutional jurisprudence and the mandates of Strickland. Properly applied, however, this standard is not contrary to Strickland and, in the case before us, the court properly applied the standard.

Even though New York prided itself on a “more generous” standard, the Circuit rubbed New York’s nose in its own convoluted caselaw and the extraneous wiggly language that courts always slip into decisions to leave themselves an out for the next case where they should reverse but don’t want to.

What’s extraordinary about this decision is how utterly routine its handling within the court of New York.  From the banal and inexplicable neglect by appointed counsel to the rubber stamping of another Bronx murder down the line.  The language of the habeas denial, about how the case was “strong” and “amply supported by the evidence” is the mechanism by which courts blow off argument, recreate their own other-worldly reality and make the problem go away.

Got an iffy, troubling conviction?  Just write the words on paper that the evidence was overwhelming and suddenly it’s not iffy anymore.  It’s never quite clear what catches an appellate judge’s interest, distinguishing the knee-jerk, routine affirmance with the case that gets serious scrutiny and consideration.  It certainly doesn’t help when it’s another indigent appeal, like so many that flow in and out of court with interchangeable “affirmed, no decision” orders that put a conclusive end to hope.

But Rosario’s claim caught Judge Pitman’s attention, only to get caught in a battle over federal antipathy toward New York’s reliance on Baldi.  You want your own “more generous” rule?  Great, now choke on it.

It’s likely that state judges thinking about Liptak’s column are muttering to themselves, “you don’t understand, we get thousands of these cases, and they all begin to look alike, to blur, claiming innocence when they’re guilty as sin.  How are we supposed to know that this is the needle in the haystack, the one where the guy really was innocent? All these defendants look the same.”

Yes, it’s a very difficult job, being a judge (or, more to the point, being one of the tired lawyers working for the appeals court whose job it is to read through and write up the arguments in these many appeals).  But all the rhetoric in all the decisions about how wondrous the law is, or how ample the evidence is, or how meaningful the representation is, doesn’t mean much to Richard Rosario, who sits in prison for a murder that happened 1000 miles away, as he awaited the birth of his child.

And now that the 2d Circuit has made sure that the New York Courts know that they screwed up, they still leave Rosario sitting in prison.  Because they are all too happy to squabble over words, but don’t really care too much about some guy named Rosario sitting in prison for a murder in the Bronx.  Routine.