On the one hand, it’s a trivial matter no matter how you look at it.  On the other hand, it’s representative of the problems we face in raising precocious children into productive adults.  In the middle is mass media Professor Frank J. Rybicki at Valdosta State University, charged with the battery of his student.

From the VSU Spectator :

The altercation occurred when Dr. Rybicki allegedly closed a laptop computer on the hands of a student, said Dorsena Drakeford, a student in the class and Spectator sports editor.

 Dr. Rybicki closed the laptop because he thought the student was on non-class related websites. The student began to argue with Dr. Rybicki about closing the laptop and about the websites she visited while in class. Class was dismissed early because Dr. Rybicki seemed upset by the incident, Drakeford said. 

A few additional facts come from the student comments to the story, that the student involved was indeed busy using Facebook, Twitter and Youtube during class, despite her denials, and that her classtime enjoyment of social media was her norm.  The professor appears to be very well regarded by students as being one of the best they have.  The student isn’t as well regarded, her Facebook page revealing her self-assessment, “yep, I’m basically perfect,” an attitude which other students found off-putting.

There’s an argument to be made that Rybicki’s shutting her laptop computer was just beyond the line.  There’s an argument to be made that Rybicki’s telling her to stop using social media in class and to close her computer on her own should have been sufficient, thus avoiding any need to push harder.

After class, the student ran to the campus police and complained of the professor’s crime against her person.  The school, of course, has suspended Rybicki and removed him from the classroom, thereby denying the students their teacher and disrupting their course of education.  But charges have been levied, and the school has issued a generic statement in explanation:

All employees are expected to perform their obligations and responsibilities in a professional manner,

Like the Slackoisie Litmus Test, a division of thought exists as to what went wrong here.  From Gawker,

Yes, he closed the laptop of a student who was slacking off in class, and that student pressed assault charges against him, and he was literally arrested, and now he’s suspended, and the police have ordered students in the class “not to talk to anybody about the incident,” and the university is taking it all very seriously. Meanwhile all of the student feedback on the school paper’s website is in support of the teacher.

Your blueprint for success has been laid out, rude student jerks.

On the other hand,  Josh Blackman blames Rybicki’s handling of the matter.

Really, this is why Profs shouldn’t snoop and get involved with what a student is doing on his or her computer. Well, I think this result is absurd, but interesting nonetheless.

Wouldn’t it have been better if the Prof engaged the student on his computer, as I suggest, rather than slamming it shut?

Regardless of where fault is seen, reactions are fairly universal that pursuing criminal charges against Rybicki is wrong, whether because it’s seen as overkill or because viewed as generically absurd.  De minimis non curat lex, a maxim uttered too rarely these days.

The larger issue is the ongoing competition between entitlement and authority, one which presents a far more serious concern.  We’ve seen  instances of students asserting their right to challenge the authority of their professors to control the course of education and behavior in the classroom. 

At some point, they have decided that they “deserve” to be treated as equals, that the teacher’s authority comes from the student’s approval and largesse.  As with government, the power resides with the People, and only by consent of the governed is the authority recognized.

Is the analogy valid?  Does the teacher’s authority stem from the consent of the students?  Can any (and every) individual student decide for herself where the line ends, where the teacher’s authority exceeds that individual student’s right to do as she pleases?

Indeed, another analogy, the inmates taking over the asylum, seems similarly applicable.  While the days of teachers smacking knuckles with a yardstick may be gone, for better or worse, it’s unfathomable how anyone can effectively teach people who believe they are entitled to reject the teacher’s authority to dictate the norms of conduct in the classroom.  Not only would it put the power to disrupt education in the hand of every self-important student, but it would spell the death of education for those who desire to learn but, as here, find their teacher handcuffed by the limit unilaterally imposed by a student who has decided that her right to do as she pleases is superior to everyone else’s right to be educated.

The question isn’t whether Rybicki’s shutting of the student’s computer was the best way to handle the situation.  Let’s assume that it wasn’t, but rather an act of frustration on the part of the professor. Of course, it begs the question of what method of handling the student’s abject refusal to comply with the teacher’s direction would have been appropriate as well as effective.  Under modern notions of educational correctness, the likely “best practice” would have been for Rybicki to let it go during the class and complain about the student to his department chair afterward.  Of course, there’s nothing better than a professor ceding control of his classroom to a student on Facebook, but that’s correctness for you.

Whether the student was a “rude jerk,” or whether the professor was a “snoop” who stuck his nose where it didn’t belong and precipitated an incident that would never have happened if he minded his own business, the question presented is whether the terms and conditions of the classroom are dictated by the teacher or subject to the consent, perhaps the whim, of the student. 

To put it another way, are students freedom fighters or inmates in the asylum?

Remember “wilding?”  It was the hot word in crime in 1989, after the police and media announced that youthful predators were running amok and taking over the nation, all coming from the  Central Park Jogger case.  It became one of the driving forces in the 1990s movement to prosecute youth like adults and imprison them in adult institutions, where they would rot like the predators they were. 

Except they weren’t.  Turns out that the “wilding” youths in the Jogger case were innocent, and their convictions were vacated in 2002.  The word “wilding” hasn’t been uttered in a decade.  What remains, however, is the detritus of bad law and policy.  Naturally, politicians rushed laws onto the books, and prosecutors charges babies like grownups, and judges boomed harsh words as they condemned them to eternal damnation for their evil youthful predator ways. Except it was nothing more than a fashion trend.

The  New York Times has an editorial on the changing vision, the recognition that legislatures made a “tragic mistake.”

Prosecutors argued that harsh sentencing would protect the public from violent, youthful predators. But it has since turned out that most young people who spend time in jails and prisons are charged with nonviolent offenses. As many as half are never convicted of anything at all. In addition, research has shown that these young people are vulnerable to battery and rape at the hands of adult inmates and more likely to become violent, lifelong criminals than those who are held in juvenile custody.

Why the times chose to cherry pick prosecutors is unclear.  Prosecutors don’t pass laws.  Prosecutors don’t impose sentences.  Shouldn’t there be someone else in this system, maybe a neutral person, to stand between the prosecutor and an excess of zeal or myopia.  I know, we could call that person a “judge.”  But I digress.

A new study by the Campaign for Youth Justice, a Washington advocacy group, shows that state legislatures across the country are getting the message. In the last five years, the authors say, 15 states have passed nearly 30 pieces of legislation aimed at reversing policies that funnel a quarter of a million children into the adult justice system each year.

It’s important that there be a good, solid study in support of this cause, because without it, legislators, judges and those particularly evil prosecutors would be wholly unfamiliar with the concept of youth.  Young people.  Children.  How would anybody know that they aren’t just smaller versions of “violent . . . predators” likely to be raped and abused in adult prisons and to come out, at best, worse.  Who would have suspected?

Is it really 250,000 children a year who are shuffled through the adult criminal justice system?  Children. Kids.  Since the juices started flowing in our child predator mythology in 1989, we have finally begun  to realize that this great system, the best mankind has ever created, is pointlessly and ineffectively destroying the lives of 250,000 a year in 2011? 

What do we tell all these kids who did something stupid, something childish, because they are children who think like children, behave like children, and yet get punished like adults, whose lives have been ruined? 

Sorry?  Never mind?  My bad? 

Who gives them back their lives, the chance to realize what they did was wrong, and go back to school and become nuclear physicists, physicians, prosecutors?  Where is their chance to grow up and have a wonderful life?  It’s gone.  Go to prison for being a dumb kid and that’s it.  Game over.

And what do we learn from following knee-jerk fashion changes in the criminal justice system?  Who is today’s bogeyman, the hemlines go up and it’s sex offenders, or down and it’s drunk drivers, or pants are back style and it’s school children who point fingers as if they’re guns.  Wait, are we back to violent child predators again already?

For crying out loud, do we never learn about leaping blindly into the next baseless trend in crime, finding some new target upon whom to heap our frustration with our own lives and blame for the end of civilization?

The misery of life compels people to find someone to hate, to blame for all the bad things we suffer.  It never seems to solve anything, and almost invariably makes things worse, once we get past all the inflammatory rhetoric that makes us hate them in the first place.  All too often, as with the Central Park Jogger case, the impetus turns out to be complete and total nonsense, a lie that was too easy to grab hold of and use to generate fear, loathing and votes.  As soon as complacency sets in, we find a new group to hate and blame.

Maybe, if the New York Times editorial is correct, we can go back and undo the damage that we’ve caused over a generation by admitting that we totally blew it.  But what about those quarter of a million kids who we’ve condemned to prison in our zeal to find someone to blame?  We can’t give them back their lives.  We can’t give them back childhoods to enjoy, laughing and playing.  Even though no one has yet said it, maybe a nice sincere apology will help?

We can’t change the fact that their first kiss was from a 43-year-old man in the next cellblock, or that it didn’t stop at a kiss. 

Does that image disgust you?  I hope so. Maybe it will provide a reason to pause before the next hemline is raised and someone else is pointless harmed to prove conclusively what a great system we have.  There’s nothing we can do to undo the damage after the mistake has been made.

The rationale for why the State of Maine needs a law  establishing a drunk driver website is the same given for every registry and variation on a theme. 

More than 8,000 Mainers were arrested for drunken driving in 2009, the most recent statistics available, and Rep. Rich Cebra, R-Naples, says Mainers should know who those drivers are.

“I want a website at [the Maine Department of] Public Safety that will have their names and addresses and their picture,” he said. “People need to know about drunk drivers that might be living next door and taking their kids to soccer practice.”

Cebra said his measure would establish the website so that Mainers could search their community to see if any neighbors are convicted drunken drivers, and whether they are multiple offenders. He said it would be similar to the state sex offender website but would not be a registry.

Blah, blah, blah.  Do it for the children.  After all, should the neighbor’s know that they guy two houses down blew .08 BAC?  You can be they won’t lend him the riding mower any more.  And Rep. Cebra’s even figured out the perfect way to pay for it, since everything government does is very expensive.

“This would depend on the conviction information that is already being collected,” he said, “and I am proposing a $25 surcharge on every OUI conviction to pay for the website construction and operation.”

Thankfully, no one has figure out yet that if they impose a $10,000 surcharge on everyone convicted of drunk driving, they wouldn’t have to lay off teachers.  But I digress.

The proposal is hardly a surprise, as the fashion of returning to the stocks in the village commons, on top of whatever criminal penalties are imposed, offers vast opportunity for the enterprising politician.  Toss in some child welfare argument and, no matter how tenuous the connection, it’s usually good for re-election, at least for one term.  Nothing to see here, folks.

But what disturbs me far more is where the support comes from for such headlong dives down slippery slopes.  It’s not MADD or SADD or BADD.  We expect them to mindlessly support any initiative designed to penalize drunk driving.  That’s why they exist.  No, they aren’t the problem.  This is the problem.

Regular readers know that I have long been troubled by the threats posed by drunk drivers and have long believed that communities ought to be as worried about drunk drivers as they are about sex offenders.  I am generally agnostic concerning the use of any crime registries unless and until research effectively demonstrates that they foster public safety.  But it seems to me that if they make sense for sex offenders then they also should make sense for drunk drivers.

These aren’t the words of some political websites frequented by readers wearing tin foil hats.  These are the words of lawprof Doug Berman.

There is nothing that better supports, better emboldens, political thought than academics and scholars.  When it comes to sentencing, there is no scholar more persuasive than Douglas Berman.  No matter what the penalty or harm to be imposed, Doug’s backing can mean the difference between success and failure. 

It’s possible that this is just a throw-away comment, tossed out thoughtlessly and without the hard work of deliberation.  Or it’s possible that Doug Berman means exactly what he says, having given this subject intense scrutiny and purposefully offering his deepest thoughts on this subject for Cebra and any other politician looking to make a name for himself to use. 

Having much respect for Doug’s efforts, as well as his focus on a very narrow area of scholarship, however, his lack of distinction between sex offenders and drunk drivers, as well as his agnosticism, which in effect works out to support, toward crime registries, is shocking.

Does this suggest that a drunk driver is the same, or even remotely similar, to a sex offender?  And I’m not talking about the absurdly overbroad inclusion of people convicted of public urination on registries, but the real, hard-core, out-of-control child molesters?  It strikes me that neither the nature of the offense, nor the nature of the harm, has any similarity.  The sole factor is that both are crimes.  Aside from that, there is nothing to connect the two, and no rationale that suggests the concern for an out-of-control child molester living next door to one’s child to the Mainer who had two glasses of chardonney with his lobster.

Compounding the problem is the laissez faire attitude toward registries in general, that if they’re going to exist, why not have a registry for everything?  Where is the critical thinking?  Where does it end?  Does it end?

This is an invitation to slide down the slippery slope.  There may be no justification for a sex offender registry, but as long as we’re being stupid, let’s be really stupid.  Can this possibly be a sound basis for another registry?

It wouldn’t matter if this position was espoused by someone of lesser reputation, lesser credibility.  But when it comes to sentencing, which includes the pseudo-civil, extrajudicial penalties of being tainted with the scarlet letter so all the neighbors can hate you, so employers will fire you, so no one will rent you an apartment or let their kids play with yours, there is no one whose opinion matters more than Doug Berman’s. 

Are all crimes the same, all deserving a registry because judicial sentencing, zero tolerance, mandatory minimums, three strikes laws, aren’t doing enough harm to our society?  If one registry exists, is that a reason to have a registry for everything?  Why not? 

We’ve already learned from the sex offender registry concept how quickly is devolves into overbreadth, how devastating and inappropriate the scope of harm it causes, how it’s created a second class citizen whose life, and the lives of family members, are pointless harmed beyond repair.  So let’s do more of the same?

I don’t get it.  But then, my opinion doesn’t count.  It’s Doug Berman’s opinion that counts, and he doesn’t seem to have a problem with it.

Jeff Gamso posts about a young lawyer named Joseph Rakofsky, who did nothing more than a hundred legal marketers and youthful lawyer advocates urge every unemployed lawyer to do.  Be all that you can be on the internet. 

There are  whole conferences whose purpose is to teach legal marketers how to create more effective lies be more persuasive in social media.  The painted smiles and group love are dedicated to turning sow’s ears into silk purses. 

Don’t sweat the details. Don’ be afraid to make yourself appear to be something, many things, you’re not.  And don’t ever turn away a client, no matter what the case or what your qualifications to handle the case.  It’s all about making money, and anything a young lawyer has to do to make money is fair game.  That’s how things work in the law these days. 

Gamso, who learned of the story via Jamison Koehler, provides a bit of Rakofsky’s self-proclaimed background, which is enormously impressive for a guy who graduated law school in 2009.

Per Keith Alexander in the Washington Post :

Rakofsky’s Web page on lawsearch.net says he specializes in criminal law, DUIs, traffic law, malpractice law and negligence. He lists his firm’s address as 14 Wall St. in Manhattan, but the New York state attorney registration offices have no record of Rakofsky being licensed in New York. Rakofsky, who received his law degree from Touro College in Brooklyn, N.Y., in 2009, has been licensed in New Jersey since April 29, 2010.

His lawyersearch profile tells us more.

Mr. Rakofsky has worked on cases involving Murder, Embezzlement, Tax Evasion, Civil RICO, Securities Fraud, Bank Fraud, Insurance Fraud, Wire Fraud, Conspiracy, Money Laundering, Drug Trafficking, Grand Larceny, Identity Theft, Counterfeit Credit Card Enterprise and Aggravated Harassment. Following graduation from law school, he worked for one of the biggest civil litigation firms on the east coast and has worked for boutique white-collar criminal defense firms in Manhattan. During law school, Mr. Rakofsky interned at the Legal Aid Society (in Suffolk County). Prior to studying law, Mr. Rakofsky studied Economics and interviewed at a well-respected investment bank with branches all over the world.  Prior to law school, Mr. Rakofsky earned a Bachelor of Science in Biology, concentrating his attention on DNA.

Impressive, huh?

“I was astonished someone would represent someone in a murder case who has never tried a case before.”

At Military Underdog, that wayward wag Eric Mayer writes an occasional post he calls Azimuth Check.  Most of us wouldn’t know what to do with  an azimuth if it bit us in the butt, which is just Eric’s way of lording over us that he learned how to use a variety of contraptions on the government’s dime that the rest of us can’t.  Aren’t you special, Eric, rubbing our noses in your azimuth.

But in his April Fools edition, Eric provided a list of books he would like to see written:

Practicing Law Alone In Your Mom’s Unfinished Basement By Choice, by Carolyn Elefant.

Social Media For Lawyers (2nd Ed), by Nicole Black, with special forward by Brian Tannebaum.

Forget Clients: Pathways to GenY Self Entitlement, by Dan Hull.

Guaranteed Early Success: Approaching Trial Like the British Conducted Operation Market Garden, by Antonin “The Trial Warrior” Pribetic.

How to Write 15 Blog Posts a Day In Less Than 15 Minutes, by Scott Greenfield.

Everything in This Country is Fair and Makes Me Happy, by Gideon.

Depositions with a Doo: Hair Care for Lawyers, by Rick Horowitz and Norm Pattis.

Hidden Behind The Podium: Memoirs of a Short Lawyer, by Mirriam Seddiq.

How To Smuggle A Condemned Man Out of Prison In Your Mustache, by Jeff Gamso.

On twitter,  Jason Wilson added some of his own :

“In Defense of Comic Sans,” by @typogforlawyers

“How I Learned to Stop Worrying and Love Publishers” by Joe Hodnicki.

“Getting Back to the Billable Hour” by @gnawledge

“How to Achieve the Ultimate Work + Life Balance” by @scottgreenfield

And  Greg Lambert sent one back at Jason:

“The Subtle Art of Blog Post Titles” by @jasnwilsn

Not to cast too wide a net, but does that cover all the books that need to be writ?

As for Eric, please note that, due to copyright litigation, his practice will henceforth  no longer be referred to as “Small Law,” but “Fun Sized.” This is not subject to discussion.

A heartbreaking story, just for the utter pointlessness of it, via ABA Journal.

A new lawsuit alleges a fired employee hacked into his former company’s networked computers and deliberately destroyed an entire season of a syndicated children’s TV show.

 According to the suit, Jewson was fired from Cyberlynk, an Internet service provider, for an undisclosed reason in February 2009. The suit asserts that on March 26, one month after his firing, Jewson went on a data-wiping rampage.

The show’s creator, WeR1 World Network, names both Jewson and CyberLynk, in the lawsuit. The suit says that CyberLynk, which was assigned to store two years worth of work, should have done more to protect its data. Fragments from 14 episodes of Zodiac Island, a children’s series that airs on TV stations across the U.S., were lost, and reproducing or reassembling the deleted data from the series is impossible.

The money lost can be recaptured, perhaps, but people worked hard to make those shows happen, and now they will never be seen.

But lawyers use the Clouds to store files, documents, the product of our labors and the work upon which our clients’ hopes rest.  And nothing could ever go wrong, provided you are diligent in making sure that there are multiple servers, backup electric, firewalls, fire extinguishers.  All the sorts of things that could protect our files from damage, destroying years of work and perhaps someone’s life in the process.

Except a disgruntled ex-employee who knows how to get inside the system and wipe out data because he’s pissed at the company.  Not your company.  Not mine.  The company who owns the cloud.  Yes, the object of his anger will suffer, but so will others.  The employee won’t care.  People who are angry and want to lash out don’t stop to wonder about the innocent third parties who will suffer.  The employee probably had an iPad, but that didn’t save your data from being wiped clean.

No matter how much care is taken, there is no way one can stop an unhappy, crazy, person who you’ve never met from doing terrible harm.  There will be recriminations afterward about what you could have done to protect the data, but it is just a matter of shifting blame.  The sad truth is nothing is perfectly safe. 

It’s just a matter of different risks, issues that are outside your control, giving rise to problems that were never on our radar.  Is the risk of some cloud computing company’s angry employee worse than the risk of fire or flood, or any of the other risks of paper files kept in our offices or at temperature controlled warehouses?

This isn’t to suggest that the cloud is unsafe, or at least any more unsafe than your own office, where this could happen as well as a host of other things that could damage or destroy files.  It’s just a reminder that stercus accidit.  Even in the clouds.

News reports of incidents between the police and, well, everybody else, are the fodder of commentary, meaning that we’re constrained to rely on what we read when blawgers blawg.  You know that, of course, as do I when I hope that whatever I’m writing about has been reported with at least a modicum of accuracy. 

I will often decide not to write about something because the reporting strikes me as wrong or dubious, and rather than run with it, I prefer to let things flesh out a bit until I know whether there’s really something of interest there. It turns out that stories that smell at the outset often aren’t stories at all, just squiggly black marks use to fill newspaper space until something real comes along.

Every once in a while, however, a reports comes along that is either outrageous or absolutely insignificant, according to the report, and there are two conflicting reports that can’t even begin to be reconciled.  The story of Joey Tucker in Salt Lake City is such a story.  From the Courthouse News:

Police officers responded to a family’s complaint that their diabetic son may have been in danger from driving without taking his medicine by running him off the road into an interstate highway median and shooting him to death, the family says.

Joey Tucker’s father, Perry Tucker, and his fiancée Brieanne Matson say they were “concerned about his health” when they called Salt Lake City Police. Joey Tucker had not taken his diabetes medication and “had possibly taken a sleeping pill,” according to the federal complaint.

The family claims a Highway Patrol trooper rammed Tucker’s pickup into a concrete barrier as Tucker drove on Interstate 80, then Salt Lake Police Officer Louis “Law” Jones shot him to death while he “was simply sitting,” all of which was recorded on officers’ dashboard cameras.

Salt Lake City police Officer Louis “Law” Abner Jones shot Tucker on the highway after Tucker led authorities on a low-speed chase, rammed a police vehicle and threatened another swipe at officers with his car, according to police reports and a review by the Salt Lake County District Attorney’s Office. The office ruled the shooting justified.

Tucker was suspected in two hit-and-run crashes the day he was shot, the reports state. Jones spotted him near 2600 West and 1500 South in Salt Lake City and pursued him onto State Road 202, before following Tucker onto I-80, where the Utah Highway Patrol took up the chase, the reports state.

UHP unsuccessfully tried to stop the vehicle. Both police agencies then followed Tucker west on I-80. UHP Trooper Lawrence Hopper used a PIT maneuver to bring Tucker’s Chevrolet pickup to a stop, the reports state, though the vehicle swerved across the highway.

Tucker then rammed the truck into the trooper’s car, reversed and turned the wheels toward the officer, the report states. Jones then shot three times into the truck, hitting Tucker in the neck and torso. Tucker died at the scene.

The District Attorney’s Office ruled Jones was justified because his actions were “necessary to prevent death or serious bodily injury to the officer or another person.”

At almost every turn, and with some allegations thrown in such as “two hit-and-run crashes,” the story is very different.  While much about the “official” story emits the typical odor of the police spinning their story to simultaneously justify, and absolve themselves of, the killing of Joey Tucker, it remains a bit difficult to understand why a police officer, having already immobilized his vehicle, would then execute a person who was doing nothing.  Yes, it could happen.  No, it doesn’t happen often.

There is supposedly a police dashcam video which, according to the complaint filed by Joey Tucker’s family, supports their cause.

“The dash cam videos reveal that Joey did not take any action, make any threats, or do anything to cause any immediate or [im]minent threat of harm to any of the officers. Joey was simply sitting in his vehicle.”

If true, this should prove damning to the police version of events.  But no video has been released, and it seems quite inexplicable why the police, knowing that there is a video, would allege as they do, and determine that it was a righteous shoot, if their own video proves the opposite.  Given that the family hasn’t disclosed the video, preferring instead to say what it shows rather than let the video speak for itself, the natural assumption is that it’s not nearly as helpful as suggested.

This means that the problem going forward is that this becomes a he said/she said case.  There will be a bevy of police officers swearing in unison that they were only trying to help, and then prevent themselves from being killed by this guy who was about to run them down.  It’s not that they wanted to shoot, but a question of who makes it home for dinner that night.

Like it or not, and many of us don’t, the argument that a cop acted to protect his own life or the life of another police officer from harm is a winner.  Even the most cynical among us will cut a cop a break if we believe that he believed harm was imminent.  This means that sometimes they get away with murder.

The takeaway here isn’t a new story, but one that bears remembering.  All interactions with police have the potential to go bad.  It may say “to protect and serve” on the side of their patrol car, but that’s just marketing.  To make it home for dinner is the prime directive.  It’s awfully easy to call 911 when you need a friendly, helping hand in an unfortunate situation, one where a loved one could potentially do harm to himself unwittingly.  And yet, the potential remains.

It’s unclear what happened to Joey Tucker.  It’s unlikely that anyone will ever know what really happened on the road, whether he rammed the cops or they rammed him.  Whether he was just sitting there in a diabetic stupor or was about to run down a police officer who was there to help him and preferred not to die in the process.  The only thing that is clear is that Joey Tucker didn’t make it home for dinner.

H/T Turley

It happened last year.  You would think that they wouldn’t be that easy to fool again. You would be wrong.

Last year it was the  Turk as White House Blogger prank.  A great one indeed, and scarfed up by the cutting edge newshounds at the New York Times.

But the New York Times didn’t bother to fact check. Not with me. Not with the White House. And not with Google, which already had the stories from both the ABAJournal and the WSJ by the time they ran the story at 2:05. The Paper of Record blogged in its City Room this piece on When Lawyers Blog :

…After all, as Mr. Turkewitz, a Manhattan lawyer, writes on his New York Personal Injury Law Blog, he is about to be sounding off on all manner of legal issues as the Obama administration’s new White House law blogger.

“Excited about new blogging gig as White House law blogger,” he tweeted this morning. “But hope I don’t have to spend too much time in D.C.”

Spoken like a true New Yorker.

But they don’t like to get punked.  They don’t like it when some blogging lawyer like Eric Turkewitz makes them look just a teeny bit foolish, even if only because they jumped blindly into the abyss rather than do that fact-verifying thing that reporters are supposed to do.  

But they can’t help themselves.  Dangle a “hot” bit of news in front of a reporter and it’s like bloody meat in front of pitbulls.  There’s just no stopping them, and they get drool all over the carpet.

There’s a question of the ethics of a lawyer being the source of information that serves to fool a newspaper.  After all, as some argue, a lawyer is supposed to be honest and forthright, kinda like an overwrought  boy scout in pin stripes who is never allowed to go to parties with the fun kids.  Think of the harm, the newsprint murdered, the reporters’ time wasted, the humiliation of perfectly nice people just trying to do their job.  Get a life.  Even lawyers are allowed to have a little fun once in a while.

So what was the prank this year?  How did the New York Times get taken yet again?  Since I can’t take credit, I leave the glory to those who did the dirty deed and deserve the credit. And no, it doesn’t involve naked pictures of Sarah Palin, rumors to the contrary notwithstanding.

Check it out for yourself at Patterico’s Pontifications. 

I haven’t written anything mean about the Republic of Texas in a while. That stops now.

It seems that a judge down yonder named Clinton has come up with an easy way for defendants to cut some time off their sentence.  Via Mark Bennett :

Judge [John] Clinton, who has been on the bench since January, has been asking probationers if Jesus was their savior;** if they do has been offering them credit for sixteen hours toward their community service for reading a Christian religious tract: this Christian self-help book, to be specific.

By his own acknowledgment, he was trying to help people. He expressed frustration at seeing young defendants turn down probation, which would help them avoid a conviction, in favor of a conviction and a fine. 

No doubt, this action appears to violate the first amendment’s prohibition of government establishing religion. But it is not violative of the fifth or sixth amendments, neither or which say anything about religion. There is no phrase “separation of church and state” in the Constitution. Government is only prohibited from establishing religion and from prohibiting the free exercise of religion. Further, the Constitution specifically limits “Congress,” not the courts.

Eric is right, it wasn’t the worst thing that’s every happened in a courtroom.  It was likely well-intended.  The judge relented and apologized for inserting religion into the performance of a secular function.  And it was Jesus, for crying out loud.  It’s not like it was Mohammed or Buddha or something.  Sheesh.

Murray Newman (who apparently is not an orthodox Jew despite his appearance), agrees that Judge Clinton was wrong, but takes issue with Bennett and Kennedy extrapolating from his ignorance about the First Amendment to the Constitution that he might be less than adequately familiar with a few of the others.

Both Mark and Paul, who ironically both have the names of Apostles (and to my knowledge, there was no Murray the Baptist), have expanded on Judge Clinton’s misstep by casting doubt on his ability to be a judge at all.  Mark points out:

“If the Judge is so unfamiliar with the First Amendment that this seemed okay to him until the judges’ counsel told him otherwise, what hope is there in his court for the Fourth, the Fifth, or the Sixth?”

Okay guys, let’s not entirely freak out here.  I’m not here to get into a debate about how many wars have been waged in the name of religion or the potential for the End of the World if we still include the words “Under God” in the Pledge of Allegiance, but are we really insinuating that because Judge Clinton let his religious beliefs bleed into a probation condition that he’s going to be cool with violating all aspects of the Constitution?

Isn’t that kind of akin to saying that each and every one of our shoplifting or DWI clients is inevitably going to turn into a serial killer?

Well, let’s consider that argument. No.  No it’s not the same.  The issue isn’t whether ignorance of the First Amendment is the gateway to total Bill of Rights failure, but rather whether a person educated in the law, then sworn to uphold the Constitution, can so completely misunderstand a part and yet be presumed fully cognizant of the rest of it.  No, this was not a gateway drug. 

But this whole megillah was largely a matter of making a mountain out of a Texas molehill, since judges having boneheads in Texas is neither particularly unusual nor a problem for a large swathe of the electorate.  It wasn’t until  this comment by Thomas Griffith that this matter grew legs.

Mr. B., good morning. He must have jumped ship – because in 1984 he worked for the Devil. When I met Mr. John W. Clinton Employee #055725 on 03/02/84 (Friday) around 10:00 AM as he conducted a Show-up at Station #4725. HPD Incident Report page 2.007 shows he worked the back and page 2.008 shows he willingly ‘worked’ the Show-Up. As Satan’s lil helper, he knowingly picked a 31 year old & a 27 year old to stand next to two 20-year-old suspects. The Show-Up consisted of (5) five people, which leaves one 5’ 07 17 year old.

On page 2.009, he is shown rightfully confronting the crime victim after a “positive’ identification was made on myself as the gunman where he mentioned the Report having ‘Black’ haired suspects. He allowed the crime victim an opportunity to change his Original description(s) where the gunman’s straight ‘Black’ hair & no mustache was changed to straight ‘Brown’ hair & the other person’s straight ‘Black’ hair was now straight ‘Blond’ hair.

Those keeping track of description(s) should know that I had wavy light brown hair and a mustache. The person test-driving my father’s vehicle had short blond curly hair. Despite these gross descrepentcies being caught by Mr. Clinton, despite his attempt to do the “Right’ thing, page 2.007 (last paragraph) shows that he had already “called the DA’s Intake and talked to the DA and told him about the line-up and the DA stated he would take charges.”

Detective turned Lawyer/Attorney turned Judge and now at some point he embraced Christianity in which he forced fed inmates Bible lessons hoping for better or lighter probation. I call bull-shit on the bayou and the hypocrite in #4. Thanks.

Now that’s an epiphany.  I wonder how many bible books detective turned lawyer turned judge John Clinton will have to read to make amends? 

Thanks for clearing things up about Judge Clinton’s religion, Mr. Griffith.

It’s not just the schadenfreude aspect, but the hope that some small part of the message sinks in to those zealots who belief that prosecutors sit at the right hand of God.  From the Chicago Tribune :

McHenry County State’s Attorney Louis Bianchi says he’ll never forget what it’s like to be falsely accused.

And there were other lessons learned.

The day after his acquittal, he said, he told a grand jury hearing unrelated cases, “I want you to know how easy it is to indict someone. … I also remind the grand jury it can be a very manipulative, abusive process, as I have experienced … that it’s an important part of the process. It’s not just a rubber stamp.”

In addition to insisting on corroborative evidence, Bianchi said, “We have to be recognized for our courage not to indict people.”

Sounds fine.  Certainly better than the opposite, that they wouldn’t present if they weren’t sure the defendant was guilty. 

I had once suggested that all prosecutors ought to spend a week in prison, just to gain a little appreciation of where it was they condemned others.  In a  comment,  David Tarrell wrote:

People who cut down criminal defenders should one day face charges and have to realize that the rights of the best people are only secure so long as those of the most wretched are protected.

People who insist in the presumption of guilt should be accused of something and thus realize the immense power of government and the reason the presumption of innocence was adopted.

It was a good addition.  Bianchi seems to have gotten that message.  But it now seems as if the lesson isn’t adequate.  If Bianchi thinks it’s humiliating and embarrassing to be tossed into a holding cell with a bunch of guys in orange jumpsuits, then he has a lot to learn about embarrassing.  Try  Hope Steffy embarrassing.  Try being stripped naked and deloused, just because.  Or maybe a nice cavity search every time you have a lawyer visit.  Perhaps the feeling when your kid has to talk to you through a plexiglass wall after having been frisked on the way in.  There’s a lot of stuff that can be embarrassing, and that’s all before the acquittal.

The issue for me is that Louis Bianchi got only a taste, a tiny bite, of the problem.  He was acquitted.  That’s great, and kudos to his lawyer Terry Ekl, for a job well done.  But his acquittal also means he missed a big part of the experience, the joy of being convicted when he’s innocent.  The pleasure of hearing witnesses testify about what happened in some alternate universe.  The squeeze of his lawyer’s arm as a witness lies on the stand, and everyone in the courtroom just nods their head in blind acceptance.

And the wonder if your conviction is going to be one of the three out of one hundred that result in reversal, staring at a future of imprisonment in order to perpetuate the myth that this is the best system ever devised.

I should be appreciative of the fact that Louis Bianchi has learned from his experience, one that few prosecutors ever share.  And yet I can’t help but feel that it wasn’t good enough.