A move is afoot by the ABA Section on Legal Education and Admission to the Bar to disconnect the obligation to provide tenure from the accreditation process. At Balkinization,  Brian Tamahana explains:

The purpose of the proposed changes is to allow law schools greater flexibility in finding cost efficient ways to train lawyers. According to the AALS, that’s an erroneous view of what law schools are about. “Lawyers are not ‘produced’ or even ‘trained’ by law schools,” declared former AALS President Reese Hansen in opposition to the changes (critics who excoriate law schools for doing a poor job of training lawyers would heartily agree, though Hansen undoubtedly did not mean to imply that). “What lawyers must ultimately deliver is judgment….That kind of mature judgment is primarily created by personal interaction between individual faculty and individual students in countless educational settings.” The argument of the AALS appears to boil down to the assertion that law students can obtain sound lawyerly judgment only if law schools are staffed by full time law professors with tenure.

Paul Caron at  Tax Prof Blog provides some salient outtakes from the  AALS letter in opposition to the changes:

Those who seek to alter the fundamental assumptions underlying accreditation and its role in the system of legal education should bear the burden of justifying that need to the legal education community and all those who rely on the high quality of American legal education.

We therefore ask the Council and the Standards Review Committee to take the following actions:

1. Reject the radical proposed changes to the role of faculty, and other changes to the standards that would weaken, rather than strengthen, legal education.


2. Initiate a process for the specific purpose of allowing all important constituencies to understand and debate the vision animating the current proposals and their combined effect on legal education.


3. Undertake or commission an independent, fact-based study of the actual cost drivers in legal education, and their relationship with the accreditation process.

And over at Concurring Opinions, Dave Hoffman provides some additional lawprof color, as he’s taken the decidedly minority view within the Academy that disconnecting tenure from accreditation won’t be the end of civilization as we know it.

The majority may have been motivated, by contrast, by a fear of a “race to the bottom.” Once a single law school offers cheap legal education without tenure (and without incumbent-protecting rules such as those that prohibit law students’ outside employment), we’ll all circle the drain and become diploma mills.  

Tamahana is hardly as kind in his commentary.

Frankly, these claims about what we do as law professors are embarrassing. I’m not selfless. Exceedingly few of the many law professors I know strike me as selfless. This is a fantastic job, for which we are generously compensated. Law school deans–many of whom earn between $200,000 and $400,000–are definitely not selfless. We don’t model selflessness for our students. And the truth, contrary to Hansen’s above assertion, is that many law professors engage in scant interaction with law students, so we do very little modeling of any kind outside of the classroom. (I should add that lawyers today are anything but selfless, which further belies the assertion that we influence our students in this fashion.)

I also don’t see how “public service underlie[s] teaching.” Teaching in a law school is not a public service. A few law professors on every faculty work on bar committees and such, but not the majority of us. Legal aid lawyers and public defenders are doing public service, perhaps also prosecutors and judges, but not law professors. We teach, we write, we serve on law school committees, and we engage in consulting of various sorts. This standard package of law professor activities does not constitute “public service.”

Cut to the quick, the question is whether a change in ABA accreditation such that law schools will no longer be required to offer tenure will result in a cottage industry of cheap diploma mills taught by fly-by-night legal charlatans or spell the death of cushy lawprof jobs with huge paychecks while feigning selflessness and penning articles that no one will ever read.

There can be no doubt, as both Tamahana and Hoffman assert, that the primary motivation for the AALS and its constituent faculties is to preserve the fabulous lifestyle of the rich and famous lawprofs.  Of course, that doesn’t mean the dire predictions of gutter law schools lacks merit. 

For quite some time, the disconnect between the academics’ vision of law school and the practitioners’ vision has been manifest.  What we see as a monstrous and unacceptable gap in practical education they see as turning it into a “trade school.”  Resort to derogatory descriptions aside, the words of Marquette Law School Professor David Papke ring in my ears,  where he informed the heathen lawyers that scholars were above teaching students to be lawyers.

We don’t want law school to be lawyer-training school. When we cave in to demands of that sort from the ABA and assorted study commissions, we actually invite alienation among law students and lawyers. Legal education should appreciate the depth of the legal discourse and explore its rich complexities. It should operate on a graduate-school level and graduate people truly learned in the law.

The “we” Papke refers to are the law professors, the entitled academics who feel no shame that law students pay for their indulgence to “appreciate the depth of the legal discourse and explore its rich complexities.”  Right, and they graduate without the slightest clue how to draft a motion.

I take no issue with the proposition that there be a Ph.D. program in the “rich complexities of the law,” for those who want to dwell on legal discourse.  Whether anybody would enroll is such a scholarly endeavor is another matter, but you can have all the tenured faculty you want, or can afford.  But this has nothing to do with why people go to law school.  Students attend law school to become lawyers, not pay the salary of self-indulgent legal scholars.

I give Hoffman and Tamahana a lot of credit for bucking the tide as well as their wallet in taking a contrary position to the AALS.  And the most ironic aspect to the scholars whining about the possibility that this will turn law school into a trade school is how their faculty positions sound remarkably like trade unions.

So no one will bother to write law review articles is they don’t have to gain tenure?  We’ll survive.  And if keeping your job depends on lawprofs being better teachers, we might even thrive. 

Don’t blame potential clients scanning the internet for the right lawyer.  It’s not their fault that you’re facing a conundrum, whether because you’re a new lawyer who lacks the experience they seek but is willing to take a case for significantly less money than a more experienced lawyer.  Or a lawyer with the experience but unwilling to offer a “two murders for the price of one” deal on Wednesdays.

A company called WebVisible did a survey providing some basic notions of what people are looking for when searching for a lawyer online.  When I received the press release, I deleted it, but the  ABA Journal posted it and, to be honest, it’s more enlightening than I realized.  Enlightening, however, doesn’t mean helpful.

And the survey shows:

Details about credentials and experience                                                                 68 percent Personal referrals or recommendations from network                                           58
Information about legal procedures and answers to common questions          52
Expect him/her to show up in variety of directory listings                                        30
A special offer – a discount, or added service for free                                             20
A video profile of the attorney or legal practice                                                          16
A video testimonial from an actual client                                                                      9
A non-video testimonial from a client                                                                            9

Some additional findings:

• Almost a quarter (24 percent) of all retired people take into consideration a video profile when choosing an attorney or legal service.

• Nearly one in three – 30 percent – of both men and women want the attorney/legal service to show up in a variety of directory listings.

• More than half (55 percent) of women value information on legal procedures and answers to common questions when choosing an attorney/legal service.

• Younger respondents are particularly keen on discounts, with those in the 18‐24, 25‐34 and 35‐44 groups choosing discounts at higher rates than the overall average.

The problem facing lawyers who either look to, or claim that, the internet as the “future of the law” is that the expectations and demands of potential clients put the lawyer in an awkward situation.  The only honest answer to most common questions is “it depends,” and nobody likes that answer.  Testimonials are used by some lawyers, but are rife for deception.  And “younger respondents” want a discount, while younger lawyers don’t want anyone to know just how inexperienced they really are, by neglecting to mention their year of admission when puffing their vast experience in 49 highly specific practice niches.

Missing from this (as well as the ABA’s own survey) are two considerations for lawyers to ponder when deciding how to play the internet marketing game.  First, do you really want these potential clients, the ones who will trade off experience for a BOGO offer.  Assuming that fees charged are appropriate to cover expenses and provide a reasonable profit, why would you want clients who pay less?

Second, do those voices cheering you on in the race to the bottom really reflect the “future” of the practice of law?  Sure, lawyers can fairly easily manufacture credentials they don’t really possess, exaggerate their experience and competence and, unless they have a face made for radio, create a video to entice the unwary.   Joseph Rakofsky had a particularly compelling video of himself on his website before he went dark.

It’s not that potential clients are to blame for what they want of lawyers.  Heck, I would want some of the same things as well if I could get it.  The internet has done some serious damage in creating foolish expectations, such as the wealth of websites offering “free answers to legal questions,” which range from generically stupid to shockingly wrong, but give rise to the belief that anybody can get legal advice for free for the asking.

The argument is that by providing answers for free, lawyers can establish themselves as trustworthy and competent in the eyes of the public.  Aside from the irony of these free answer opportunities being the bastion of the schemers and deceivers, the ones who spend their empty hours trying to be a Level 64 Contributor on Avvo Answers and praying that nobody calls them out on their claim of practicing in a different area of law or in a jurisdiction thousands of miles away, these are questions from people for the express purpose of avoiding hiring a lawyer. 

Here’s the shocker, anyone who starts his question, “I’ve just been arrested . . . ” and wonders what to do is telling you that he doesn’t want to pay a lawyer.  Otherwise, an arrest would be a pretty good motivator to hire counsel, if that was within the realm of possibility and interest.  Nobody, but nobody, needs to ask what to do after they’ve been arrested.  They are looking for a way around the obvious.  Or they are looking for cheap. Extreme cheap.  Is that what you’re selling?

These survey are quite informative, though not necessarily in the way they’re intended.  They are telling us that people want something different than what we have to offer.  They are telling us that they may have no idea what to look for in a lawyer, but want it cheap.  They are telling us that we’ve forsaken our own dignity in the effort to make a quick buck, and have led the public to believe that we should put shiny videos and fake testimonials online to entice them.

But they aren’t going to be happy with us in the end if we can’t produce competent representation.  Even though it can’t be found in the survey, what clients want from lawyers is excellent representation.  Offer two murders for the price of one every Wednesday, but losing two for the price of one isn’t going to make you loved.

And my guess is that most of the people who read this post will race to the bottom anyway.  What are we doing to ourselves?

The only thing worse than being deluged with questions at oral argument is being deafened by silence. Thankfully, it’s never been my experience to stand before a mute appeals court, so disinterested in the case before them that not one can be bothered to show some interest.  On the other hand, it’s usually a polite repartee.

But then, I’ve never argued before the Supreme Court of the United States.  From the way Adam Liptak describes it, they’re animals.

If you didn’t know it was a Supreme Court argument, you might think you were seeing a catastrophically overbooked cable television show. The justices of late have been jostling for judicial airtime in a sort of verbal roller derby.

The overbooked cable TV show is a vivid analogy. where mouths do everything possible to talk over, under and around one another so that their sound emits from your speaker to the exclusion of other mouths.  No one gets to complete a sentence, a thought, before another voice slices and dices ideas into worthless slivers.

About 15 minutes in, Justice Stephen G. Breyer tried to ask a question. The effort failed, and Justice Ruth Bader Ginsburg jumped in. A half-hour passed before Justice Breyer had another chance, and now his attempt was interrupted by Justice Antonin Scalia, who said Justice Breyer was asking irrelevant questions.

Then Justice Scalia pressed a point that did not interest Justice Breyer. As the lawyer tried to answer Justice Scalia, Justice Breyer stopped him. “Skip that one,” Justice Breyer said of Justice Scalia’s question.

From the sidelines, it’s amusing to watch justices jostle with each other for position, elbows a-jabbing and arms and legs akimbo as they get hipchecked off the track.  As an advocate, however, this is a nightmare.  Who do you answer?  Who do you ignore as a justice from the middle of the bench tells you not to bother with one on the end?

It’s one thing for justices to be overtly rude with each other.  They have life tenure. You have an hour, tops.

Seth P. Waxman, a former United States solicitor general, was caught in the cross-fire. He was answering a question from Justice Sonia Sotomayor when Chief Justice John G. Roberts tried to interrupt.

“Counsel,” the chief justice said.

Mr. Waxman kept talking, which seemed to irritate the chief justice.

“Counsel!” the chief justice repeated, now in a raised voice. (The exclamation point is in the official transcript.)

Mr. Waxman was contrite. “Mr. Chief Justice, I’m sorry,” he said.

Liptak’s point is that the in-fighting has little to do with the advocate or his position, but the use of the advocate as a prop by justices in their own fight for control.  While he doesn’t say, it seems that the advocate who doesn’t cede control to the justices and allow himself to be played can do his cause some serious damage by his breach of etiquette.  Then again, what sort of etiquette exists when two, up to nine, justices are giving conflicting directions at once, interrupting you and each other and ridiculing, sometimes explicitly, each other’s questions/statements?

And then there are the efforts to screw with an advocate just for fun.

Now that he wears robes, Chief Justice Roberts sometimes shows a mischievous side that he had kept in check as a lawyer. He delights in pointing out internal contradictions in advocates’ positions and in asking them questions with no good answers.

“You try to throw them off balance a little bit,” he told C-Span in 2009.

He certainly did that last month in a case about police questioning of a student, Camreta v. Greene.

The student’s lawyer was about a dozen words into her argument, trying to explain why the case was moot. Chief Justice Roberts interrupted her.

“Then why are you here?” he asked, to laughter. “Why don’t you just go away?”

The amount of time, effort, expense and angst that goes into an appearance before the big bench is extraordinary.  Though I’ve never been there, others I know have, and they spent months in preparation for that one hour of (please, oh please) glory.  Don’t even ask about the psychological and emotional investment of clients in this potentially earth shattering moment.  And then, standing in a brand new white shirt with perfectly pressed dark suit, the CJ makes you look like a monkey for sport.

And there’s nothing you can do about it.

Even if you have a sassy comeback, your mind whirls and you realize that the last thing you really want to do at that instant is out-wise-ass the Chief Justice of the Supreme Court of the United States. 

While Liptak’s Sidebar column does a great job in describing the problem, it offers nothing, neither advice nor commentary, in handling it.  He describes the dynamic as more of a ping-pong match than dialogue or conversation, but nobody standing before the court for oral argument wants to be smashed.

While the political/philosophical lines on the court have become the fodder of constant discussion, the court’s inability to demonstrate a modicum of courtesy within its own ranks, and toward the lawyers before it, seems shockingly wrong.  If anything, the duty should fall on Chief Justice Roberts to control warring factions as well as demonstrate through his own example the courtesy that courts expect of advocates.  He’s not supposed to set himself up as Lord of the Flies, and yet the arguments described by Liptak seem more typical of a school yard fight.

Given what’s at stake in these cases, and the nature of the divisions on the court itself, the justices elbowing each other out of the action hardly seems as amusing as Liptak makes it.  Frankly, the lack of etiquette and courtesy ought to embarrass the justices, and certainly should infuriate those advocates who have put in the months of work for the purpose of doing their best to advocate on behalf of their clients. 

The Supreme Court may be the highest in the land, but this sort of behavior reflects the lowest of courtesy and propriety.  It’s unbecoming and unseemly that they treat each other so poorly and treat advocates as if they are mere collateral damage in their internal power struggle.  They may tell advocates, in effect, to shut up, but someone needs to tell them to grow up.

“When I use a word,” Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean – neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master – that’s all.”

—Through the Looking Glass, Lewis Carrol (Charles Lutwidge Dodgson)

At Volokh Conspiracy, David Post channels Humpty in his attack on a  New York Times Op-Ed by Caroline Alexander.

Alexander sharply criticizes the choice of a line from Virgil’s Aeneid as the memorial inscription at the planned 9/11 memorial in New York. “No day shall erase you from the memory of time,” an “eloquent translation,” she admits, of Virgil’s “Nulla dies umquam memori vos eximet sevo.” She describes the context of the quotation — the death of two Trojan warriors, Nisus and Euralthus. In context, she says, the verse expresses the “central sentiment that the young men were fortunate to die together” — a sentiment that is “grotesque” and “disastrous” when applied to “civilians killed indiscriminately in an act of terrorism.”

His issue is less her provision of context to the quote, but what he sees as her dismissive and condescending approach toward the fools who seized upon the quote without consideration of its context.

Oh, please! My objection is not to her illuminating the context from which the quote is drawn. That’s an interesting little point; I adore Virgil, and the Aeneid — Robert Fagles’ magnificent recent translation of the latter is one of the four or five best books I’ve read in the last decade or two — and I’m always interested in learning more about the work.

But the arrogance of it: “You Philistines who haven’t read the Aeneid (in the original Latin, of course) couldn’t possibly understand the true meaning of these words you’re inscribing at the memorial. That, I’m afraid, is reserved to those of who can “winnow out what may be right from what is clearly wrong.”

And so David concludes:

Sorry, but Caroline Alexander does not get to decide for the rest of us what those words on the inscription “mean.” Neither, actually, does Virgil (though he’s got a helluva better claim on it than she does). The words mean what we decide they mean. This notion that they’re somehow frozen forever in time, attached to Virgil’s tale, is ridiculous and the worst form of elitism. (Emphasis added.)

There is certainly an element of cultural elitism attached to Alexander’s critique, though it’s unclear when the possession of knowledge or the attaintment of education became grounds for such a pejorative attack.  I hesitate to guess at the number of New Yorkers who have read Virgil’s Aeneid, either in the original Latin or Robert Fagles’ translation, but I’ll engage in wild speculation and say that most won’t be familiar with the context of the quote.  It doesn’t make them bad people, but it doesn’t make those familiar with the work bad people either.

The question raised by David’s point is whether Virgil’s words, now in society’s possession, belong to him or us.  Are we entitled to take this string of letters and spaces, make them mean what we decide they mean, use them as our own for whatever purpose or meaning we decide to attribute to them, as if Virgil never wrote them?

Putting words on paper is an act of communication, seeking to express a purposeful thought to others.  When speaking to one person, the words are best communicated in a way that will be received and understood by their recipient.  When speaking to larger, more amorphous groups, there will invariably be some who misunderstand or misread the meaning of the words.

They will take their own meaning from the words, based upon their own understanding, experience, education, depth of thought, and all the things that go into making them reasonably sentient beings.  That will be their reality, and they will attribute their meaning to the writer of the words.  Rarely does the reader say, this is what I understood you to say, though it may not have been you intended when you wrote the words.

Is there a right side to this argument?  Absolutely.  If the idea or feeling conveyed is attributed to Virgil, then it is Virgil’s meaning, and Virgil’s alone, that defines the sentence within its context.  We have no right, neither moral nor intellectual authority, to lay claim to Virgil’s words but superimpose our contextual-less meaning atop them.  It’s not ours to do.  Forget such legal trivialities as copyright, and instead honor the source of the words and the gravitas of their author.

Had I written the same words, even if I had the competence to write them in Latin, I can assure you that no one would be suggesting they be used as the inscription for the 9/11 memorial.  The words might be no different, but I’m not Virgil.  My words wouldn’t have been given a second thought.

On the other hand, the content of my posts, my blawg, are mine, and mine alone, to define.  With surprising frequency, commenters inform me what I mean.  They correct my explanation by asserting their own, despite the fact that the words come from my head through my fingers to my post.  They tell me I’m wrong, that my words mean what they decide they mean.

In contrast to David’s arrogance of elitism, there is the arrogance of ignorance.  As a blank slate, ignorance offers much to commend it to those who want to impose their own views upon the thoughts created by others.  Someone does the heavy lifting of putting words together, organize and express ideas, and then others, like parasites, take it and use it, twist it, consume it, for their own.  As long as they’re ignorant, there is no constraint by context or understanding, and they’re free to do to the words and ideas anything they want, satisfied that their meaning is every bit as valid as the person who created the words and ideas.

Anyone can own a string of letters and spaces.  Anyone can impose their chosen meaning on them.  You just can’t attribute them to someone else without accepting the meaning of the originator as conclusive.  Call me an intellectual elitist, but the writer owns his words.

It was a reasonable question:

Maybe it’s just me because I am working on my first federal criminal appeal for a defendant, but is anyone else alarmed at the ease by which the government can get into evidence incriminating material relating to uncharged crimes and bad acts under F. R. Crim. Pro 404(b)? I mean, everything and the kitchen sink can come in to prove “intent” as long as it doesn’t touch character? I’m not an expert like some of you here, but my research so far reveals that admission of 404(b) material as evidence is never reversed (if you have a case, let me know . . . ) and there is no question in my mind that the jury will have no trouble hearing that bell ringing in every case.

It seems that the Federal Rules present an uphill battle, barefoot, in the snow, for a defendant on appeal and that the constitutional guarantee of a fair trial may be undermined by the Rules.

The sort of question with accompanying observation one sees with some regularity on criminal defense listserv, reflecting the dismay of the rookie that years of studying the law has failed miserably to prepare her for the harsh reality.  So many fine platitudes turn out to be empty, meaningless words.

The problem isn’t that there is anything terribly unusual about the either the question or the epiphany, but that it comes from Deborah Borman, an assistant professor of law at Northwestern Law School, and was posted at PrawfsBlawg.  Don’t be fooled by her attractive, youthful appearance.  She didn’t pop out of law school yesterday.

Prior to her appointment at Northwestern, Professor Borman served as a career clerk for a Justice of the Illinois Appellate Court from 1991-2008, drafting more than 300 opinions in all areas of civil and criminal law, and as an Illinois Assistant Attorney General in the Consumer Fraud Bureau. Ms. Borman is a Panel Contributing Editor to the 9th Edition of Black’s Law Dictionary as well as an Assistant Editor of the Journal of the Legal Writing Institute.

Borman spent 17 years of her career as a clerk for a Justice of the Illinois Appellate Court.  According to her CV, she “researched and drafted over 300 published opinions and unpublished orders addressing civil and criminal issues.” She is now charged with training the next generation of lawyers at Northwestern, having previously been an adjunct at John Marshall and DePaul law schools.

After all that, she vents the common frustration,

It seems that the Federal Rules present an uphill battle, barefoot, in the snow, for a defendant on appeal and that the constitutional guarantee of a fair trial may be undermined by the Rules.

Putting aside the unanswerable question of why, now, she’s doing her first federal criminal appeal and what qualifications she possesses to take a person’s life in her hands, it is unfathomable that she spent 17 years writing decisions that brought tears of joy and sorrow to others, that made or ruined lives, without ever having realized that the playing field was a little out of level.

It’s wonderful that Borman has come to the realization that Rule 404(b) can be unbearably unfair, though it appears that she may still believe that the rest of the criminal law is working swimmingly well.  Until she has to do her second, then third, appeal, where she will learn that it’s not just 404(b).  Given enough time and appeals, she may eventually come to the grander epiphany that the defendant is always fighting an uphill battle, barefoot and in the snow.  Hopefully she will get there eventually.

Hidden within her growth spurt, however, is a lesson for those of us who write briefs and argue causes before appellate courts, where we want to believe that whoever is in the backroom researching and drafting has at least a little idea of the reality in the trenches.  We presume they aren’t so totally isolated, disconnected from reality, that they actually believe the black letter law dressed up in grand platitudes, and take comfort in their decisions knowing that the law is a wondrous thing, the best it can be.

Having bent an elbow or two with people whose careers were spent making decisions, or helping others to make decisions, I’ve been told that they get it, they know what really happens in the trenches.  Some do, as they were in the trenches themselves.  Others have to be taken on faith, since the only basis to believe them is their own word.  We hope they aren’t lying to themselves and us.

After 22 years of transition from law student to lawyer, Deborah Borman has come to the realization that at least one rule of criminal procedure isn’t nearly as fair in practice as it would appear from the caselaw.  That’s good.  It would have been a whole lot better, though, had she reached this plateau about 300 decisions earlier.   Still, better to learn this life lesson later than not at all.

When the  Supreme Court held that “honest services fraud” wasn’t some amorphous sinkhole where prosecutors with no business acumen could pound “common sense” arguments to jurors with no business acumen about how honest corporate executives should make complex decisions with wildly competing influences and interests at stake, but instead just plain vanilla bribes and kickbacks, it was a great day for rationality.

As it turned out, it wasn’t nearly as good a day for Enron’s Jeffrey Skilling.  

Doug Berman calls it a “Pyrrhic victory,”  Ellen Podger questions whether appellate courts should engage in post hoc verdict rationalization.   Tom Kirkendall says it’s not over yet.   Bill Otis says the fat lady sang, and her pitch was perfect.

On remand, the Fifth Circuit did the unthinkable just about what one would expect: they  affirmed Skilling’s conspiracy conviction despite the Supreme Court’s ruling under harmless error.  Of the many curious asides, this renders the ruling by the Supreme Court rather immodest, deciding an issue that was of no consequence to the case before it.  They don’t like to do that, limiting their efforts to question that demand answers, whether they actually answer them or not.

The Circuit’s ruling came down to a rather nifty switcheroo between standards of review and the parsing of the facts of the case, as only one can do by selectively cherry-picking that which supports a position and then squinting really hard so that the big mess looks wonderfully neat, clean and obvious.  To their credit, this is what appellate courts do best, turning confusion into clarity by ignoring everything that doesn’t conform.

With the caveat that the decision applies only to the conspiracy count, and that Skilling remains convicted of a bunch of substantive counts that are more than sufficient to remind us that he’s not quite an innocent fellow, the government argued at trial that guilt of the conspiracy was predicated upon a mashup of nefarious intent and conduct, part of which was that very honest services fraud that the Supremes rejected. 

The Circuit now concludes that it played a trivial role in the government’s argument, despite its  prior decision that suggested it was a critical component of the conspiracy conviction, and in its absence, the conviction must fall.  But that was then.

The trick was the 5th Circuit’s reliance on a case called Hedgpeth v. Pulido, which provided that a general verdict, one that convicted for a crime based on a mix of theories because the judge charged the jury that they could convict on a constitutionally infirm basis, was not a “structural error” but a trial error, and therefore subject to harmless error analysis.  This is where it gets interesting.  From footnote 1:

Before Pulido, we often applied an “impossible to tell” harmless-error standard to alternative-theory errors. See United States v. Howard, 517 F.3d 731, 736 (5th Cir. 2009) (cataloguing cases). This standard had its origins in Yates v. United States, 354 U.S. 298 (1957), which states that a general verdict should be set aside when it “is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected.” Id. at 312 (emphasis added). The impossible-to-tell standard is more stringent than the Neder standard; it is closer to the “absolute certainty” standard that the Supreme Court invalidated in Pulido. See Pulido, 129 S. Ct. at 533 (holding that the absolute-certainty standard is similar to “a finding that no violation had occurred at all, rather than that any error was harmless”). Because the impossible-to-tell standard is inconsistent with harmless-error review, we hereby abandon it.

It went from a reasonably close facsimile of reality, that the court couldn’t possibly know what evidence, what proof, what wrong, formed the basis for the jury’s conviction on a general verdict crime based on multiple theories, to the beloved legal fiction, harmless error.  The former acknowledged that appellate judges lack the powers of Karmac to read the minds of jurors, while the latter acknowledged that the basis upon which a jury reached its verdict doesn’t actually mean squat.  The appellate court will simply superimpose its view of how guilty the defendant is, then pretend that it’s the same thing as the jury’s.

The rest of the decision is merely the 5th Circuit’s characterization of the evidence and argument at trial in such a way as to conclude, as of course they did, that the evidence of Skilling’s guilt was overwhelming and untainted by the constitutionally infirm honest services fraud, a question of such magnitude that it required the attention of the Supremes.  It has to be correct because the court said so.

There is perhaps no theme more fundamental to the viability of the legal system than respect.  As my pal  Mike Cernovich notes on a completely different subject:

When Chief Justice John Marshall of the United States Supreme Court issued an opinion Supreme Alpha Male Andrew Jackson didn’t like, Jackson replied, “John Marshall has made his decision, now let him enforce it!” Jackson controlled the armies and federal police. What would the Supreme Court do – issue him a contempt citation?

Courts have no armies to enforce their will.  Its authority derives from society’s acceptance of the legitimacy of its decisions, the validity of its reasoning.  This decision has not been well received, despite the nearly universal agreement that Jeffrey Skilling isn’t a nice guy, and did vast harm to many.  Tossing reason into the vast sinkhole of harmless error, particularly after the Supreme Court determined the issue of sufficient magnitude to do some big time revisions to Congress’ make-crime handiwork does not instill confidence.  The decision is a pig, and no amount of lipstick makes the 5th Circuit’s effort look beautiful.

As for Skilling, my money is on Bill Otis, that he gets resentenced to pretty much the same sentence as already imposed (24 years) and the various applications for rehearing and cert will quietly fade into oblivion.  After all, it was just harmless error.

The Supreme Court has granted cert in a case that presents both an issue that demands resolution, and that has to anger anyone who isn’t a badgelicking apologist.  A very odd combination.  It’s the case of Albert Florence, whose crime was payment of the fine for a traffic ticket.

From the Philly Inquirer :

On Monday, the court agreed to hear the case filed on behalf of Albert Florence, who spent six nights in the Burlington County Jail and a night in the Essex County Jail in 2005. He was strip-searched at both facilities before a judge confirmed that he had been arrested in error and let him go.

Florence was a passenger in a BMW being driven by his pregnant wife, and the registered owner of the car.  When it was stopped for speeding, a warrant for Florence popped up for nonpayment of an old ticket.  The problem is that not only had Florence paid the ticket, but he had certified proof of payment in hand.  So what?  The cop hauled him in to protect the children. 

It took seven days to figure out the warrant was issued in error.  You can’t rush these things, you know.  After all, if they let him out and later determined that he should have been arrested, think of the children put at risk of fine-nonpayment in the interim.  Get your priorities straight.

But the issue before the Supremes isn’t the arrest, the error in issuing a warrant for a paid fine, the seven days to figure out the obvious. No, those are the regrettable side-effects of the new professionalism.  The issue is the propriety of conducting a full strip search, with extreme prejudice, of Albert Florence and others like him, arrested for a minor infraction and for whom there is absolutely no reason to suspect the possession of weapons or contraband as he enters the correctional system.

While most appellate courts have held that such searches are unconstitutional, citing the 1979 Supreme Court decision Bell v. Wolfish, four recent decisions have upheld the practice as a way of maintaining prison security, concluding that other decisions improperly interpreted Bell.

“The Third Circuit is now the law of the land” throughout that circuit, said attorney J. Brook DiDonato, who represents Burlington County. DiDonato said that the finding and confiscation of weapons during strip searches protects people like Florence. Most violence is directed at other inmates, he said.

Security of correctional facilities is a curious problem.  It’s true that it protects those inside from the introduction of weapons into the facility that are more likely used against other prisoners.  Don’t prisoners deserve to be protected?  Wouldn’t there be justified outrage if Florence had been murdered inside the jail (allowing for the detail that he never should have been there in the first place) because of the failure to search and locate a weapon being brought in by another person?

You bet there would be outrage.  And yet there is also outrage at the idea that everyone, no matter how trivial their offense or utterly lacking in reason to suspect they possess a weapon, is subject to a terribly demeaning, intrusive search.

At the New York Times, Adam Liptak wrote about the petition for cert, detailing some of the less than obvious arguments in favor of searching everyone, no matter what the reason for their custody (like violating a leash law or non-payment of child support).

Although the judges in the majority in Mr. Florence’s case, the one heard in Philadelphia, said they had been presented with no evidence that the searches were needed, they nonetheless ruled that they would not second-guess corrections officials who said they feared that people like Mr. Florence would smuggle contraband into their jails.

It was suggested that people might commit trivial offenses to get themselves put into a facility without a search in order to smuggle contraband to people already inside.  No, really.

“It is plausible,” Judge Thomas M. Hardiman wrote, “that incarcerated persons will induce or recruit others to subject themselves to arrest on nonindictable offenses to smuggle weapons or other contraband into the facility.”

But the most disingenuous argument was that others, similarly situated to Florence, would want to endure a cavity search.

But jails are dangerous places, the brief said. “It might even be argued that those arrested on nonindictable or other ‘minor’ offenses would be particularly anxious,” the brief reasoned, to make sure that everyone around them was thoroughly searched.

To my knowledge, no one has ever demanded a cavity search when the screws decided to take a pass.  Just in case.

The fact that people can, and do, hide some rather remarkable things within their body cavities is undeniable.  Short of a ’57 Bel Air, it’s perpetually amazing what some people are willing to insert in their bodies.  The problem isn’t theoretical and presents very real concerns about the introduction of contraband into the system. It’s not like that doesn’t mean searches work, as contraband gets into jails constantly anyway, but it similarly not like they don’t manage to intercept a significant amount of contraband in the process.

The problem is risk/reward, whether there is a point at which concerns about the nature of things done to an undeserving person on the off-chance that it may offer some marginal potential for safety.  Despite the absence of meaningful statistics, should 10,000 litterers be strip searched in order to find one person with a dime back of marijuana in his rectum?  Or a shiv?  Or 100,000 litterers?

The Third Circuit’s decision in Albert Florence’s case, refusing to impede corrections officials decisions to search ’em all, reflects an abdication of its duty to safeguard the public from the government.  It’s not that they can’t make the choice of holding that cavity searches are constitutional, but that they’ve merely deferred to the judgment of others. 

The problem is that the court acquiesced in the decision to use extreme intrusive measures for an extremely low probability problem.  The notion that people walk around littering in the hope of smuggling weapons concealed in their rectum into the jail may be “plausible,” but is hardly reasonable. 

On the other hand, the court utterly failed to recognize the extent of harm caused by cavity searches, treating it as some mere trivial rite of passage into the jail.  It’s demeaning and humiliating, an experience not to be treated so cavalierly.

Of course, it’s plausible that a federal judge might be nuts, say bipolar, and have a hankering for guns and hatred for blacks, causing him to robe up and take the bench with a weapon concealed on his person.  It could happen.  Perhaps, in the interest of safety, if judges were subjected to the occasional body cavity search, they would have a greater respect for a person’s right to bodily integrity in the absence of a reasonable suspicion to believe otherwise.

Safety is a wonderful thing.  But if a strip search is not a big enough deal to require a reason for it, then let the judges who happily defer to the judgment of those doing the searches rather than being searched get a taste of what they impose on others.  If they are less than thrilled at the prospect of being searched for the combination of a  traffic infraction and a warrant issued in error for themselves, then the rationale is no stronger when it’s our butts on the line.

Brian Tannebaum posts about a  remarkable decision from the District of Massachusetts by Judge Michael Ponsor, dealing with the always perplexing problem of what to do with defendants caught in the hiatus between a change in law and its effective date.

Antoine Watts is charged with possessing with intent to distribute five grams or more of crack cocaine. The judge in his memo questions whether the court will be compelled to impose a minimum mandatory sentence of at least five years on him, or will have the discretion to impose a lower sentence as permitted by the recently enacted Fair Sentencing Act of 2010.

A few more introductory words. The government’s contention that the General Saving Statute (“Saving Statute”), 1 U.S.C. § 109, demands this result — that is, that the Saving Statute makes perpetuation of obvious injustice a regrettable but necessary expression of respect for the law, however harsh its consequences — cannot survive a close examination of the Saving Statute itself or its legal context. The Saving Statute is simply not the straitjacket the government has tried to tailor.

Before any non-lawyer reader’s head explodes, a bit of explanation.  The Saving Statute addresses the inevitable problem of retroactivity caused by the fact that there are people in the pipeline at the time of passage of a law, but who were arrested, prosecuted and even convicted under the older version.  A new law addressing the same matter as an old law will invariably include a repeal of the old since there can’t be two conflicting laws applying to the same conduct at the same time, but that means the law for which the person in the system was convicted has since been repealed.  Then what? 

There’s where  1 U.S.C. § 109 comes in.

The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability. . . .

This constitutes the “default” position, subject to change by Congress when the “repealing Act shall so expressly provide.”  In enacting The Fair Sentencing Act of 2010, Congress did not “expressly provide.”  While the new law eliminated the mandatory minimum, Antoine Watts was convicted under the old law that still had a 5 year mandatory minimum.  Bummer.

That provides the generic, lawyerly context to the situation, but fails to address the particulars of the government’s argument.

. . . the Saving Statute makes perpetuation of obvious injustice a regrettable but necessary expression of respect for the law, however harsh its consequences . . .

This phrase may reflect the single most offensive argument ever proffered by a government.  There is no suggestion that the outcome the government proposes is not unjust.  Indeed, all concede, Congress included, that it is absolutely unjust, wrong, unfair, discriminatory.  There is universal agreement that an injustice will be done.  And that’s what our government argues for.

The rationale is that injustice is a “necessary expression of respect for the law.”  Respect, in this sentence, means adherence.  If you’re a stickler for stuff like law, the government’s argument is legally sound.  Congress could have expressly provided for its application to those in the pipeline (and we’re not going to touch further retroactivity, like the guy who was sentenced to the mandatory minimum the day before the law was enacted), but it didn’t.  Congress knows (or should know) about  1 U.S.C. § 109, could have accommodated the problem by providing for it, and didn’t.  Boo Congress. Boo President Obama. 

Then again, the prosecution didn’t have to raise the issue.  There’s a quiet detail that sometimes, the prosecution has a sound but disingenuous argument, and somebody decides not to mention it, while everybody else lets out a deep breath, winks all around, and life goes on.

And we thus return to the perpetuation of an obvious injustice.  Our government calls it regrettable.  Judge Ponsor refuses to allow himself to be compelled by the rigid rules of statutory construction to impose what everyone conceded to be an injustice.

There is a concept that doesn’t quite apply but could, called the Rule of Lenity.  Only where the law is ambiguous are the courts, according to the law, required to apply the least onerous law to the situation.  The Rule of Lenity isn’t used with great frequency, but it should be. 

Of course, there really was no ambiguity here.  Congress had the chance to address the situation differently, and decided to leave Antoine Watts blowing in the wind, perhaps the last man to be sentence to a mandatory minimum under a law repealed because it was fundamentally wrong and discriminatory.  That would have been our government’s choice.

But Judge Michael Ponsor decided that he would not be the judge to sentence that last man to an obviously unjust sentence.  Injustice is never regrettable but necessary.

My guess is that  Jay Shepherd never met Joseph Rakofsky.  If so, then he bears no responsibility for what happened.  But the irony that Shepherd, who writes a “column” about Small Law at Above the Law, posted Six Steps to Becoming an Expert at the same time the Rakofsky fiasco went viral can’t be ignored.

It’s not that Shepherd deliberately seeks to push young lawyers into a life of deceit and misery, but that he, like so many who have nothing to offer but still feign expertise, can’t stop himself from spouting crap.  The message, delivered in the obligatory list format favored by marketers trying to sell simpletons, is worse than Menckian.  It’s dangerous.

1. Win a case.
I’m not going to tell you how to do that; you’ll have to figure it out on your own. But eventually, the odds are that you’ll end up on the winning side of a case. Ideally, there will be something inherently interesting about the case. If there isn’t, find a way to make it sound interesting.

2. Get some ink.
After you’ve won a case (or handled a transaction) about which something notable can be said, you then need to get in touch with a reporter. . . Then pitch the story.

Reporters just love being pitched the mundane and self-promotional.  Heck, I get a dozen press releases a week about how lawyer Sammy Schmuck just won a $10,000 verdict in a wrongful death case, and he’s available for an interview.  Just don’t mention the dead bodies you left along the road to your eventual win when the odds swung in your favor.

3. Do a CLE.
Bar associations and local continuing-legal-education organizations are always looking for new programs, and new speakers to put them on.

There is nothing a room full of lawyers, compelled to be there because of well-intended but worthless CLE requirements, want to hear than some undistinguished n00b talk about a subject where everyone in the room knows more about the subject than the speaker.  And trust me, they can tell.

4. Write an article.
Write an interesting, plain-English article on your chosen topic. Reference your case (or transaction) if it makes sense to do so, but don’t do it in a way that makes you out to be the hero of the story. Otherwise it will come across as overtly self-promoting.

This step has gotten much easier than it was ten years ago. Back then, you were pretty much limited to writing pieces for bar-association journals and legal newspapers. Now, blogging and social media make it much easier to quickly write an article and get it out there for the world to read.

Some lawyers get hung up on irrelevant stuff, like credibility or substance.  Don’t sweat it.  Write a blog post and lawyers around the country will immediately swoon at your feet.  Can’t manage to amass that many words at one time, just craft a really good twit and you’re in like Flint.

5. Help your colleagues.
When you learn that another lawyer is handling a case similar to yours, offer to share your research or even the brief that you wrote.

Everybody appreciates unsolicited offers of help from people they don’t know.

6. Repeat.
Keep doing the previous five steps, and people will come to see you as an expert.

If it works for shampoo, why not lawyers?  And really, isn’t it all about people seeing you as an expert?

These six steps will help establish you as an expert in your particular area, which will lead to more cases in that area, which will allow you to repeat the process. Pretty soon, you’ll be a bona fide guru. That’s exactly how I became known as a noncompete expert. After several years of following these steps, beginning with a single, obscure case, I was getting noncompete referrals from lawyers around the country. In time, I actually did become an expert in the area.

The last sentence is the killer.  Everything up to that point, assuming Shepherd’s self-assessment that he eventually became an expert, is relatively accurate, was a lie.  One big old scam to garner attention.  This is the modern path to success in the law, just lie your butt off to everybody who will listen, feign expertise you don’t have and see how many fools will let you slide in along the way.  Cover up the dead bodies of your incompetence and when you get lucky, promote the hell out of yourself as if you’re the real thing.

And this is what is being promoted as the route to success in the law?

In the aftermath of the Rakofsky fiasco,  lawyers unfamiliar with social media were shocked that this could happen.

The conduct of this person, I cannot bring myself to call him a lawyer, is without doubt reprehensible. But I am forced to a much larger question. How did he get to this point? Measuring my professional life now in decades, I cannot comprehend his apparent lack of comprehension of his situation. To be told by a judge that you are not competent to the extent you are being dismissed from a case would be mortifying (an old dinosaur term) to me.

Is there some fundamental flaw which is afflicting our profession by which young lawyers are unable to see such clear problems, whether it is a Murder I as your first trial or representing two defendants with conflicting needs?

You bet there’s a fundamental flaw at work here.  The game they are learning has only six steps, none of which include become competent.  As  Keith Lee explained, young lawyers aren’t playing the game, but being played by it. 

Great lesson, Jay.  Thanks for sharing your expertise with your colleagues.

The judge looked up at me, smiled and said “Is Mr. Defendant now your co-counsel?” I smiled back, “no, judge. He is not.”

On the other hand, more often than not, the client begins to think he is also a lawyer. This causes a lot of problems. It forces me to spend huge amounts of time explaining why they are wrong about issues pertaining to their case. I sometimes get letters from clients laying out some legal theory that has no basis in the law. And then I have to spend an hour writing a reply letter correcting them. I suppose it’s part of the job.

I have had a couple of clients that found case law that helped me prior to a motion hearing. I am not afraid to admit I don’t know everything or have read every case on any given topic. Thus, in a few instances, the extra help was appreciated.

Because a non-lawyer thought he knew the law better than his lawyer. From here on out, I am going to cringe when a client informs me he’s been to the law library. Rarely does anything good come from it. Please let the lawyers be the lawyers.

When we need co-counsel, we’ll ask.