Isn’t it bad enough that courts have proven themselves incapable of coming up with an adequate instruction on “beyond a reasonable doubt?”  Lesser standards, at least, have always been susceptible to generally universal comprehension.  Standards like, oh, probable cause.

Probable.  More likely than not. Nothing to see here, right?

Leave it to Orin Kerr to muck things up.

I have just posted a first draft of a very short essay, Why Courts Should Not Quantify Probable Cause, which is forthcoming as a book chapter in a volume dedicated to the late Professor William Stuntz. (I first presented the idea at the Harvard conference in his honor.) Here’s the abstract:

Probable cause is one of the fundamental concepts of Fourth Amendment law, but the Supreme Court has refused to quantify it. The Court has described probable cause as a “fair probability,” but it has declined to explain just how likely a “fair” probability might be. Does a “fair probability” mean a 50% likelihood? A 40% likelihood? And why won’t the Justices say? Are they just afraid of math?

Nice how he got that “Harvard” piece in there, to make sure we all know that this is the sort of thing that deep-thinkers ponder.  But a “40% likelihood?”  Where the heck does that come from?

My initial reaction to the fact that anybody, even Orin, spent a few minutes thinking about this question, falls under the women’s hemline theory.  If they don’t move it up and down occasionally, dress designers will have nothing to do.

Lawprofs are constantly vigilant for things no one has ever considered before, thus providing them with fodder for doing lawprof stuff.  So what if there was never an issue because there was never an issue. Create a controversy and resolve it.  Write a paper (or a chapter in a book) and it can forever thereafter be known as the Kerr Theory.  If you’re really lucky, new lawprofs for generations will discuss and debate.

Orin goes on to argue that the courts are right to refuse to quantify probable cause.  Here’s why:

This essay argues that courts should not quantify probable cause because quantification would produce less accurate probable cause determinations. The core problem is that information critical to probable cause is often left out of affidavits in support of warrants: Although affidavits say what techniques police tried that added to cause, they generally leave out both what the police tried that did not add to cause and what techniques the police never tried. Determining probable cause accurately often requires this information, however. By leaving probable cause unquantified, current law enables judges to use their intuition and situation-sense to recognize when missing information is likely important to assessing probable cause.

He’s killing me.  I agree wholeheartedly that the courts shouldn’t quantify probable cause.  My reasoning is that there’s nothing to quantify, the word “probable” having a very clear, easily explained and communicated meaning.  Probable. More likely than not.  If pressed to use math for a reason other than adding up the bill, then consider it more than 50%, though such an exercise is silly since probable cause is a qualitative rather than quantitative inquiry.

While we use words like “weighing” evidence and “balancing” tests, we don’t actually use scales except as metaphors.  We also don’t require judges to wear blindfolds or togas draped so that one breast (at least) is showing.

But then Orin dredges up some very peculiar words to describe what judges should use in lieu of quantification:  intuition and situation-sense.  Does that make your spidey sense tingle?

Are we back to the old myth that cops have a “sixth sense,” that magical, mystical innate knowledge of who is guilty, who is lying, who is evil, evidence notwithstanding?  You know what I mean, the nonsensical introduction to every B-grade cop movie, film noir type, thereby eliminating any need to first gather evidence and then, and only then, decide which defendant to send to the electric chair?

It would seem that Orin’s choice of words to describe his controversy-creation is merely unfortunate, except that he justifies it based on the omissions in a warrant.  My head is about to explode.  Does this suggest that judges should use their “intuition” to fill in the gaps of a warrant to reach probable cause?

First, what makes judges so law enforcement/street savvy that they have “situation-sense?”  They are cloistered.  Sure, they did their time as prosecutor, which is as close to omniscience training as it comes, but they only know the streets second hand, basking in the stories of cops’ and agents’ sixth sense.  Of course, neither the cops nor agents tell the stories about the 90% of people they stopped that had no contraband on them and were cut loose.  Those aren’t good stories to tell if you want to impress young prosecutors.

Second, what’s wrong with requiring law enforcement to set forth in writing everything they rely upon in support of the warrant?  If they’ve got more evidence and chose not to use it, that’s up to them. If the showing falls short, they can redo the application or walk away.  But why would it be up to the judge to fill the evidentiary void with his “intuition”?  It’s not the judges’ place to compensate for lousy policing.  Remember that whole neutral magistrate thing?

And when our quasi-mythical neutral magistrate reads the application for a warrant, she will ask herself whether it persuades her that it is more likely than not that it meets the requirements for issuance.  Is that so hard?

I get it.  It’s hard, given all the law reviews, hornbooks and nonfiction bestsellers, to come up with novel legal issues to write about.  Hemlines up. Hemlines down.  Pedestrian stuff to argue and reargue the same old stuff.  Finding virgin territory is a coup.

But we’ve got enough muddy waters in the law.  While lawprofs are busily trying to stir things up for their own benefit, there are a bunch of real people sitting on hard wooden benches who are never sure whether their hemline is at the proper height for the season.  Don’t make their lives any harder than it already is.

Probable cause is one of the handful of standards we can all understand.  Please keep your mitts off of it. Please.

Seven years on the internet is a very long time.  To provide context, many of the young lawyers who read blogs were either worrying whether Brad would ask you to the sock hop or Suzie would let you get to second base seven years ago.  You lost no sleep over the law, employment opportunities, social injustice or loan repayment.

Mike Cernovich wasn’t like you.  Instead of quaffing beverages of dubious alcoholic content, he chose to spend some of his free time writing. He created a blog called Crime & Federalism.

It’s been just over seven years since the first post appeared at Crime & Federalism. It’s been a fun and fucked-up seven years.

The blog first started when there weren’t many law blogs. I was a law student looking to engage others, and the blog achieved some measure of legal success. 

Mike significantly understates the influence and importance of his blog in the early days.  There were others, even in criminal law, but they didn’t compare.  Either the writing was mediocre (at best), the content was weaselly or self-aggrandizing (even then lawyers couldn’t help but try to paint themselves as heroes) or just plain bad.  Being an early adopter doesn’t preclude being a moron.

Describing his experience over the years, Mike makes it sound a lot like a 12-step program. There were the “highs”:

American Lawyer Media contacted me, asking me to be one of only eight official law blogs. Soon, my blog was one of only a dozen to be cited in federal judicial opinions. I built a huge readership of lawyers, serious legal scholars, and federal judges. Sounds great, right? And then things got better.

Norm Pattis joined the blog in 2005. Traffic was up, and C&F was one of the most widely-read legal blogs – and certainly the most widely read criminal law blog. Kindred souls, Norm and I went our separate ways. I stopped blogging for a while, as legitimacy comes with a price.

After several months of co-blogging, Norm and I started exchanging e-mails. “That post got a lot of hits. We should write more like it.” We started thinking about what others wanted to see. To build a readership, that is what you should do. Yet that makes the endeavor seem soulless and placid rather than vibrant and bold. He and I both got writer’s block.

And then the lows:

I came back and completely self-destructed, alienating nearly every regular reader. After a post about religion, the Law.com people asked me if it wouldn’t be a good idea for me to leave their house of legitimacy. I loved the idea, and seemed bent on self-destruction.

And the demands:

People today ask why I don’t blog much about the law. It’s not that I don’t care about the law. It’s that there are are several-hundred article-length posts about the law. I used to fastidiously categorize posts. Whatever you want to know is already in the Archives. 

Until finally, the come to Jesus moment:

The blog will always be a reflection of me, because no one tells me what to post (or not to post). Whatever I post, therefore, is being driven by conscious or subconscious forces. I am me, but also part of everyone else. We are all plugged into the collective unconscious.

While I’ve got a couple decades on Mike in real life, he’s got the same on me in internet years.  Following Mike’s travails has given me insight into what was ahead of me and how decisions on which forks to take would work out.  We’ve shared many of the same experiences, and I’ve avoided some because of what Mike went through, saving me some of the anguish that he endured along the way.

I’m told all the time what I think, feel, and do, right and wrong, by people I don’t know and who think they know me because they read a post or two of mine.  They inform me that they disagree and expect my world to rotate on its axis to accommodate their disembodied views.  I’m told I should write more about one subject and less about another, or that my rhetoric is too inflammatory or tepid.  And they get angry with me because I don’t meet their expectations.

In a comment to his post, a guy named Mel feels it worthwhile to let Mike know that he agrees with him 75% of the time, and disagrees the remainder.  Mel doesn’t write this to diminish Mike, but to praise him.

Even when you say something I completely disagree with, you’re funny, witty, engaging and worth reading.

That’s a very thoughtful compliment, and one I’m sure Mike appreciates.  The reason this is significant isn’t that Mel argues that Mike should change his 25% wrong ideas, which is what the vast majority of readers argue, but that Mel realizes that Mike is writing what Mike wants to write.  Mike is saying things that Mike needs to say.  And if anyone, Mel, you, me, doesn’t agree with it or like it, that’s our problem, not Mike’s.

Newcomers to the blawgosphere, or to SJ, are rarely shy about telling me what to do, how to behave and what to write about.  Some even try to tell me that the blawgosphere is doing everything wrong, and I should change my evil ways to suit their sensibilities.  Some who are critical think they are so consequential in my world that they have “nailed me” or “gotten to me” when they’ve done no more than make me shrug, if I even notice them.

My laissez-faire attitude toward the haters and even the well-wishers comes largely because of what I learned from Mike.  If you don’t care for Mike, that’s fine.  Neither Mike, nor I, give a damn.

Lawyers whose practice focuses on suing the government for the deprivation of civil rights, what is known as §1983 actions, have long tried to explain that they are some of the most difficult to pursue.  With the Supreme Court’s decision in Connick v. Thompson, it just got harder.

Here’s the background from the case summary:

Petitioner the Orleans Parish District Attorney’s Office concedes that, in prosecuting respondent Thompson for attempted armed robbery, prosecutors violated Brady v. Maryland, 373 U. S. 83, by failing to disclose a crime lab report. Because of his robbery conviction, Thompson elected not to testify at his later murder trial and was convicted. A month before his scheduled execution, the lab report was discovered. A reviewing court vacated both convictions, and Thompson was found not guilty in a retrial on the murder charge.

What stands out is that the prosecution concedes that it concealed the Brady material.  They didn’t argue mistake or accident, but that the prosecutor who handled the case, Gerry Deegan, completely and intentionally failed to disclose to the defense that there was a swatch of blue jeans with the perpetrator’s blood on it and a report showing that it was Type B.  Deegan didn’t know if the swatch matched Thompson’s blood, but he made sure the defendant would never know either.

Thompson was convicted, and via the ramifications of the conviction, chose not to testify at his subsequent murder trial and was convicted again.  He spent 18 years in prison, including 14 on death row.  When defense investigators learned of the swatch and determined that Thompson’s blood type was O, his conviction was reversed and he was freed. 

He then sued the District Attorney, under §1983, for violation of his civil rights under the theory that they prosecutors were not adequately trained in their duty to disclose potentially exculpatory evidence under Brady.  A jury awarded Thompson $14 million.  In a 5-4 decision by Justice Thomas, the Supreme Court took it back.

Plaintiffs seeking to impose §1983 liability on local governments must prove that their injury was caused by “action pursuant to official municipal policy,” which includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.

The burden isn’t to show that a defendant’s constitutional rights were violated in the particular instance before the court.  That would be far too easy, and provide redress to any poor shmoe who spent 18 years in prison because a prosecutor screwed him.  He can’t sue the prosecutor who did the dirty, as he’s got qualified immunity and is untouchable, lest prosecutors feel afraid to do their job of screwing people in the process of convicting them.  No, the path that must be taken is “deliberate indifference.”

Deliberate indifference in this context requires proof that city policymakers disregarded the “known or obvious consequence” that a particular omission in their training program would cause city employees to violate citizens’ constitutional rights.

And how does one prove such a thing?

A pattern of similar constitutional violations by untrained employees is “ordinarily necessary” to demonstrate deliberate indifference. Without notice that a course of training is deficient, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights.

So what if Deegan buried Thompson’s Brady material.  So what if Thompson spent 18 years in prison as a result.  So what if Deegan, not to mention his boss, Harry Connick, are lawyers and hence supposed to have some inkling of what the duty imposed upon them by the Constitution means.  The key question is what would be fair to the decisionmakers, who “can hardly be said to have deliberately chosen” to violate constitutional rights.  What about the children decisionmakers?

In dissent, Justice Ginsburg wrote:

Throughout the pretrial and trial proceedings against Thompson, the team of four engaged in prosecuting him for armed robbery and murder hid from the defense and the court exculpatory information Thompson requested and had a constitutional right to receive. The prosecutors did so despite multiple opportunities, spanning nearly two decades, to set the record straight. Based on the prosecutors’ conduct relating to Thompson’s trials, a fact trier could reasonably conclude that inattention to Brady was standard operating procedure at the District Attorney’s Office.

What happened here, the Court’s opinion obscures, was no momentary oversight, no single incident of a lone officer’s misconduct. Instead, the evidence demonstrated that misperception and disregard of Brady’s disclosure requirements were pervasive in Orleans Parish. That evidence, I would hold, established persistent, deliberately indifferent conduct for which the District Attorney’s Office bears responsibility under §1983.

Notably, the dissent is predicated upon the argument that Thompson proved deliberate indifference, albeit through his own case over nearly two decades of concealment.  There’s no contention that an “aberrant” single incident of constitutional deprivation gives rise to a cause of action.  

Ginsburg does note that Brady violations “are not easily detected,” meaning nearly impossible to find and almost always a matter of pure kismet that someone stumbles upon them.  No one seems particularly concerned about the incentives to conceal Brady material, since the only downside to doing so is that the defendant, maybe 18 years later, may have a one in a hundred chance of finding out and then have his case dismissed, as it would have been 18 years earlier if they complied. 

For individuals, people who have suffered the indignity of their constitutional rights being violated by those given the authority to do horrible things to others, there is a message here:  Who cares?  Most people believe that there is a way, a place, where you can turn if someone in government screws with your rights, that every American has a right, a RIGHT, to go to court to seek a remedy for the harm done them.  Surprise.

For those other individuals, the ones who decry the remedies like suppression that let the guilty free, under the guise that if the police or prosecutors do wrong to any particular person, there must be another way, there isn’t.  This isn’t about enforcing individual constitutional rights.  This isn’t about providing a remedy to an individual for a conceded violation of their constitutional rights.  This is about protecting the government from its own victims by making it nearly impossible to meet the proof demanded.

Do the judges who think Brady is just another joke, that constitutional rights are someone else’s problem down the road apiece, feel even a twinge of concern for the 18 years Thompson spent in prison?  What about the fact that Thompson would have been executed had his investigators not fortuitously found the blood swatch?  Or do they take comfort that the majority of the Supreme Court couldn’t care any more than they do?

The ABA did a survey.  Don’t laugh. At least they didn’t form a committee to do a survey.  Nope. They used a pre-existing committee, the Standing Committee on the Delivery of Legal Services.  The first conclusion of the committee was that pony express would never work.  But it’s moved forward since then.

This survey was intended to figure out how people find the lawyers they hire.  And the survey said:

 People with personal legal matters are far more likely to turn to trusted sources instead of impersonal sources to find a lawyer, yet impersonal sources have a substantial and stable place in providing access to legal services.
 Use of print directories, such as the Yellow Pages, as the primary way to find a lawyer for a personal legal matter appears to be eroding and is now about the same as online searches.
 Younger adults are more likely to rely on online searches as the primary way to find a lawyer for a personal legal matter, but the extent to which online searches will expand as this population ages is unclear.
 People are not showing a great enthusiasm for the use of online models to assist in finding a lawyer for personal legal matters.
 Innovative online models, such as those that enable an exchange of questions and answers with lawyers and those that provide consumer feedback about lawyers are most likely to be used to assist in finding a lawyer for personal legal matters.
 People would not use social media avenues to a substantial degree to assist in finding a lawyer for a personal legal matter, but relatively few lawyers market their services through these avenues at this time.

And that’s just part of the summary.  This caused war to break out between Kevin O’Keefe, who sells blogs to lawyers for a living, and Will Hornsby, staff counsel for the ABA, who was constrained to explain why the ABA survey was done via landline telephones (answer: because telegraph is no longer a viable method).

Kevin  spun this to mean that blogs are where it’s at, since people find lawyers through “trusted sources” and

How do you, as a lawyer, get referrals through other people’s ‘trusted sources?’ Through relationships with others and having a strong word of mouth reputation.

Where’s does that leave blogs and other social media when it comes to how people find a lawyer? Near the top of the list.

A long and winding road, that Will Hornsby refused to travel. As there was a caveat in the survey report, suggesting that a potential reason why people don’t turn to blogs is that “a higher percentage of people are interested in turning to blogs to help find a lawyer than the percentage of solo and small firm lawyers who have blogs,” Kevin and Will called a truce.

Because the shift in blame turned to “solo and small firm lawyers,”  Carolyn Elefant jumped in to cut through the empty rhetoric.

There are other reasons why only seven percent (according to the ABA Survey) of solo and small firm lawyers blog. Some are busy and can’t find the time. Some simply don’t like to write. Some take the position (erroneously in my view) that by blogging, they’re giving away the cow, so to speak. Others prefer to engage in other marketing activities such as speaking engagements and seminars or bar events (not my cup of tea, but different strokes).

But at the end of the day, most solos don’t blog because they simply do not see it benefiting their bottom line – and the ABA survey results, at least the actual numbers, tend to corroborate that instinct. Indeed, it may be that consumers are hungry for information, but most solos and small firms aren’t willing to provide it without some assurance that those consumers will convert into clients. Saying that consumers want more information from blogs doesn’t tell me that they want to hire a lawyer. Rather, it suggests that they just want more free information.

Icy cold water splashed on the faces of the faithful.  No matter how many well-turned phrases are used to explain away the inability to calculate ROI, or how trusted sources can somehow be traced back to a blog. 

A commenter here once questioned whether lawyers were supposed to be capable of sorting through the nonsense, the meaningless rhetoric, the meritless contentions.  Well, yes, they are.  Do they?  Not so much.  It’s a problem.

There’s a theory among the social media marketers that people hire lawyers they like.  The point is the create a likeable online persona and people will like you for it, thus causing them to hire you.  Having read a lot of lawyer blogs, it seems that this theory has been embraced by lawyers who market, along with the shameless self-promotional belief that the internet is a truth-free zone where ascribing non-existent awards, honors and miscellaneous kudos to oneself is par for the course. 

This theory is also at play at various other social media venues, where lawyers collect twitter followers, LinkedIn associates and Facebook friends to show others how much they’re loved and admired.  I read as much as I can take without going into insulin shock.  They are all very likeable.  Some even approach lovable.

But there’s a hitch that remains troubling.  Most of what I read doesn’t make me think they’re “thought leaders” or “trusted sources.”  The better ones are just obvious marketers.  The worse ones are people who didn’t heed the maxim, it’s better to let people think you’re a blithering idiot than prove it beyond any doubt.  The internet has a lot of really bad writing about the law.

Carolyn has offered some sound theories about why this is.  Other theories are not as kind.  But the  empirical evidence is that too many lawyers aren’t using the critical thinking skills the public expects us to possess, and it’s just plain embarrassing. 

Blog all you want, and Kevin O’Keefe’s Lexblog platform is an excellent choice.  I would use it if he would give it to me for free.  But if you think that 10,000 personal injuries lawyers posting on their blogs about how each is the greatest thing since slice bread, won the biggest award ever, or cares more deeply about the welfare of a brain-damaged baby than the lawyer down the hall, then you’re just fooling yourself. 

There’s no magic bullet here.  If you want to get more business, spend your free time watching a great lawyer do a cross and become the lawyer you want to pretend to be on the internet.  Clients will like you for it.  Trust me, because I have a blawg.

Imagine what would happen if prosecutors and law enforcement used Chaos Theory to justify jurisdiction?  Nothing that happened, anywhere, would every be beyond the scope of American law, which is how Preet Bharara’s Southern District of New York has claimed jurisdiction over the rest of the world.

From the New York Times :

It was as classic a sting operation as any that have unfolded on Manhattan’s streets: a government cooperator offered a fictitious deal, and baited a suspect into agreeing to participate in illegal activity.

But in this instance, the target was Viktor Bout, a reputed arms trafficker who lived in Moscow; the purported deal involved selling arms to Colombian terrorists; and the sting involved meetings in the Netherlands Antilles, Romania, Denmark and, finally, Thailand, where Mr. Bout was lured, arrested and eventually extradited to the United States.

About the only place not involved in the alleged offense was here.  But that didn’t stop our government from deciding that bad things elsewhere were subject to our laws.

Preet Bharara, who currently has that role, said the aggressive approach had become necessary in the post-9/11 era. “As crime has gone global and national security threats are global,” he said, “in my view the long arm of the law has to get even longer.”

“We can’t wait until bombs are going off,” he added.

Can you feel the breeze of the butterfly’s wings?  The new-old saw, 9/11 changed everything, is still very much alive and justifying our running around the world to impose our law on those who could conceivably pose a threat.  The only limitation is cost and manpower, with territorial constraints in our post-9/11 world no longer of any consequence.

The international cases have not been without complications. Defense lawyers have criticized the stings, arguing in court that they “manufacture jurisdiction” in cases in which it would not otherwise exist and pursue people unfairly.

“I find it profoundly troubling that U.S. agents are spending their time setting up cases against individuals who do not represent actual threats to the United States,” said Melinda Sarafa, a lawyer for a Lebanese man brought from Honduras in a 2009 narco-terrorism sting.

Curiously, the issue has already become so muddied that the question raised by Sarafa is whether the defendant poses as “actual threat to the United States.”  We’re already beyond the point where a mere threat, actual or theoretical, is itself insufficient.  How did we leap over the concept of territorial harm within the confines of our beautiful shores to the point of distant threat?  And already jurisdiction is supplied by way of rhetoric, connecting make believe dots that could arguably happen.  It’s as if the courts deferred the jurisdiction challenge to  Judy Tenuta (it could happen!).

But if it protects Americans from the threat of harm by global terrorism and crime, what’s the problem?  It’s not like these are otherwise innocent guys, right?

What is happening is the conflation of American foreign policy and criminal law.  The government has decided that our law has become the law of the world, thus justifying the long arm of the law to stretch anywhere it wants to go.  If the Ruskies won’t clean up an arms dealer in Moscow, then we are entitled to go in and do it ourselves.  In the old days, we would use an army to invade the foreign land and impose our will.  Today, we lure them to a dark room, “arrest” them on foreign soil and spirit them to Manhattan in the dark of night to be prosecuted for the crime that might have happened in Manhattan, if only it had anything whatsoever to do with it.  But it could, if one squints, turns his head sideways and pretends that the butterfly is flapping its wings.

So what’s the problem with making the world a little safer?

Sabrina Shroff, a lawyer for a West African narcotics-trafficking suspect arrested in a case in which drug agency informers posed as Taliban representatives, said, “It would anger our citizens if Americans were set up, and ensnared, and tried in a foreign country.”

American Jingoes tend to forget that other countries, silly though this may seem, harbor the belief that they are entitled to enact laws too.  The French get to decide that it’s a crime to mix stripes with polka dots, and the Syrians get to decide that disparaging Mohammed deserves death.  To the fellow in Idaho, this doesn’t mean much, and he can dress any way he pleases or say mean things on the internet about the prophet of Islam.

What if a foreign law enforcement agent snatched this guy in Idaho.  Absurd, right?  And yet the same in kind to what we’ve decided is our right on other nation’s soil.  While some might question the seriousness of the offense, noting that we’re rounding up really bad guys, terrorists and such, from Red Square, and hardly comparable to our Idahoan talking trash about some outlier religion (to Americans), the sensibilities of those in other countries could see things differently. 

Sure, it’s hard to imagine that the rest of the world doesn’t abide by the Judeo-Christian ethic, or our laws and justification for them, but Americans have long struggled with the notion that we’re right and anyone who sees things differently is just plain wrong.

As these prosecutions out of the Southern District of New York demonstrate, we’re already well down the road of being the self-proclaimed world police, using our Super Power might to decide what constitutes a crime no matter where it happens and how tenuous its connection to us.  It’s not that lawyers haven’t challenged the jurisdiction of the United States to kidnap and prosecute people who have never stepped foot on American soil. 

It’s just that the courts have swallowed Chaos Theory whole, and are only to happen to accept jurisdiction based on some extended theory of how the  butterfly’s wings flapping in the China Sea will result in death and destruction on the streets of Manhattan.  In the Southern District of the World, that’s all it takes for jurisdiction.

He served four terms as Governor of Alabama.  He ran for president four times, three as a Democrat. In 1972, he was shot and paralyzed, living out the rest of his life in a wheelchair.  He was best known as a southern populist, standing firmly against desegregation.  But he never did a blawg review. Loser.

The other George Wallace writes about insurance law at Declarations and Exclusions.  If you’re fascinated by insurance law (and who’s not), it’s the place to go.  The other George Wallace has a personal blog, A Fool in the Forest, which will only be of interest to readers who think.  The former hosts  Blawg Review #304 this week.  The latter will host next week’s blawg review.  I’m taking a leap here, but I predict it will be called Blawg Review #305.

In anticipation, the other George Wallace posts a bleg.

Who am I kidding?  I am next week’s Blawg Review host, at my personal/cultural blog,  a fool in the forest.  For reasons that will become clear in good time, I am particularly interested for the next edition in blog posts that examine, or that exemplify, Things That the Law, or Lawyers, Could Do Without.  Your submissions and suggestions, early and often but mostly early  [hint hint, nudge nudge], will be welcome and appreciated.

Only because I think the other George Wallace is one of the smartest, most erudite lawyers on the internet, I want to start the ball rolling.

Lawyers could do without BMWs.  Porsches too, but they’re mainly for middle-aged doctors (not the Boxter, but the 911).

What’s the problem with BMWs?  Aside from the dumbing down when they started putting in cupholders to compete with the Japanese and minivans, they cause envy.  The lawyer driving around in his K-car is forced to park next to the BMW in the lawyer’s parking lot at the courthouse and feels diminished.  His self-esteem is shot.  He walks toward the magnetometer with shoulders slumped, already defeated. He feels . . . inadequate.

Despite his best efforts, a scheme begins to form in his endorphin deprived mind.  If only he could generate fear.  Fear and loathing.  It works so well for the government. It got George Wallace elected four times.  Fear and loathing are powerful, an aphrodisiac.  And he could be the solution, the messiah of fear and loathing.

It wouldn’t take much.  A tweak here and there.  A carefully crafted campaign to entice those who fear and loathe to come to him, begging him to be their savior.  Not too greedy.  If he gets too greedy, they will struggle and may well let thoughts and ideas overcome their fear and loathing.  No, never too greedy.  Just greedy enough.

It wouldn’t be entirely a lie.  Of course, taking small amounts from the many who fear and loathe adds up, enough to not only cover the lease, but gas and insurance as well.  And they would never know of his nefarious plan to persuade them that they’ve tried their best, that it’s a grand conspiracy against them propelling them to accede to the power and might of the evil government.  It will be easy, as they fear and loathe, inclined to believe from the outset.  They will sigh.  Some will cry.  But they will pay and never know that it was all part of his own grand scheme.

And when he pulls into that parking lot with his shiny BMW, tinted windows concealing the cupholders, his pride will blind him to the scared look of those led out of the courtroom in cuffs to serve their time, their legal bill having been paid in full.

No, lawyers can do without BMWs.

Does that pretty much cover it?

When the going gets tough, the tough get going.

— Joseph P. Kennedy (1888-1969)

When the going gets tough, we waive preliminary hearings.

— Orrie E. West, Public Defender for Horry County, South Carolina

In Horry County, the public defender’s office refuses to appear at any preliminary hearings, and the magistrates refuse to allow the public defender clients to go forward without their attorneys – the two together amounts to a systemic denial of due process for a majority of criminal defendants in Horry County.

One at a time, the judge identifies those who have applied for a public defender – it quickly becomes clear that none of these individuals have spoken to their attorney, although they have filed their application for a public defender it is still early in their case and many do not even know their attorney’s name. As each person identifies his or herself, the judge explains that the public defender does not do preliminary hearings and therefore that person’s hearing is waived. One at a time, they walk out of the courtroom, confused and angry. Towards the beginning, two of them try to argue with the judge, explaining that they are prepared to go forward without their lawyer, but the judge refuses, explaining that if their attorney says their hearing is waived then it is waived. Have a nice day.

 There is no downside to preliminary hearings – no harm comes to the defendant, they cannot go to jail if they lose, their charges cannot be increased if they lose.

When the case is not dismissed, or if it is dismissed and the solicitor indicts it and revives the charges, the benefit is still obvious. We now have a transcript of the officer’s testimony, early in the case, as to what the evidence will show. The officer is now locked into that testimony and the transcript can provide invaluable impeachment material for trial if the officer tries to change the story when trial begins. It also gives us a picture of who the officer is, how they will testify, will they lie on the stand, are they evasive, or are they straight up and honest. All of which is invaluable if this case goes to trial.

In any jurisdiction, there are aspects of the process that the courts don’t take particularly seriously.  In New York City, it’s discovery, a near worthless joke where the prosecution produces a Voluntary Disclosure Form that may or may not be accurate (with no penalty for material error or omission), where the defense gets as much, or as little, as the prosecutor deems to provide.  Judges routinely ignore any effort to gain greater disclosure, statute notwithstanding.

Exculpatory evidence is routinely ignored everywhere, which is why I call Brady the biggest joke every played by William O. Douglas.

But what Bobby describes is different.  As he says, it’s a systemic denial. It immediately conjures up images of Amy Bach’s Ordinary Injustice, of a system sliding into the abyss without any of its players either noticing or caring, and taking the systemic failure as just the way things are done.

An advocate of the public defender’s mantra, we are real lawyers, Gideon ponders:

There are several “rules” of practice that all criminal defense lawyers would be well served knowing and understanding. One of them is that we must and should engage in battles with the prosecutors and courts for the sake of our general clientele. But one that is even more paramount, one that goes to the core of our mission to represent each and every client individually, is that you must never fight a battle to the detriment of a specific client.

And I get that this is even more of an issue with public defenders offices across the country, where the ever-increasing pressure of funding cuts leads to the inevitability of “taking a stand” and showing the clueless politicians in the state legislature just how devastating the impact of their poorly thought out budget reductions will go.

But just like you’d never forgo a misdemeanor with a suspended sentence in favor of testing out your latest brilliant challenge to the constitutionality of a serious felony statute, there’s a place and a time to fight these fights.

Gideon assumes, and is likely correct, that the policy in Horry County is the product of funding shortfalls, the allocation of scarce resources rather than the wholesale lack of caring by the local public defender for the welfare of their clients.  In furtherance, Gideon is willing to cut the PDs a break and allow them a waiver of a preliminary hearing when there’s no particular reason to believe that it’s going to produce anything significant.  Gideon is more forgiving than Bobby in this regard.

While I share the outrage and disgust, what bewilders me is that the public defender, having made a deliberate decision for forego a critical stage of the proceedings, which doesn’t seem to bother the judge much, and certainly won’t cause any sleepless night in the legislature, hasn’t brought about the protests of the organized criminal defense bar, either in South Carolina or nationally.

Bobby G. Frederick has shown the moxie to call out the Horry County public defender and magistrate for this systemic failure.  What of the South Carolina Association of Criminal Defense Lawyers?

Mission Statement “You can only protect liberties in this world by protecting the other man’s freedom.” Clarence Darrow The South Carolina Association of Criminal Defense Lawyers is devoted to protecting the liberty of the citizens of South Carolina by fighting to ensure justice and due process for all persons accused of any criminal act. We promote excellence and integrity in the practice of criminal law by providing the highest quality criminal law seminars to those who defend the accused. We speak with a united voice in challenging legislation directed to limiting or eliminating the rights of the individual and we labor for laws that preserve equal access to justice for all.

Funny how they can be pretty darned efficient when sending out dues notices and holding gala dinners to hand out awards to their “mandarins.”  And “Liberty’s Last Champion” is busy promoting its CLEs.  Plenty of high-minded ideals that make lawyers feel proud.  Excellence, Champion, all for the price of membership.  It says so on the certificates, so it must be true.

All the while, a poor defendant can’t get a preliminary hearing for trying in Horry County.  And if it wasn’t for Bobby Frederick, nobody would know.  And nobody would care.

At My Law License, Brian Tannebaum writes a provocative post (yes, everything he writes is provocative, but this one was also interesting) about second lawyers.

Or like the policy I want to talk about here, never being the second lawyer.

Yep, that’s mine.

I don’t want to be the second lawyer, for several reasons.

One, and most important, is that the majority of people who have a falling out with the first lawyer, will never be happy with any lawyer.

Many calls I receive from clients with Bar complaints begin with “I was the (second, third, fourth) lawyer on the case.”

What would you do for a Chevy Tahoe?   Bobby Frederick in South Carolina notes that it’s not just prosecutors offering cash incentives for “productivity.”

In the past, South Carolina law enforcement officers have been awarded prizes such as Dodge Chargers and Chevy Tahoes based on how many arrests they make over the course of a year. DUI enforcement is a profitable business for law enforcement, for municipalities, and for organizations such as MADD.

Law enforcement receives grant money to make arrests for driving under the influence, and prosecutors receive grant money for prosecuting DUI’s, which does not necessarily translate into effective DUI enforcement – it can just as easily translate into an unforeseeable number of law abiding citizens being harassed on the roadside, jailed, and in some cases forced to trial.

When police officers are competing for recognition or even material rewards based on the number of arrests that they make, they are going to err on the side of arresting and any practical use of discretion that there once was has now gone out of the window.

Does anybody really need an app to locate the nearest Starbucks in Milwaukee?  I mean, sure, it saves you from having to ask the guy standing three feet away from you, or swiveling you head from side to side and possibly straining something, but the task is readily accomplished without resort to cutting edge technology.

Others, however, have no analogue.

From  Common Dreams, our government is busy playing venture capitalist to encourage the creation of new apps designed to foster democracy around the world, with or without a mocha frappucino.

WASHINGTON – Some day soon, when pro-democracy campaigners have their cellphones confiscated by police, they’ll be able to hit the “panic button” — a special app that will both wipe out the phone’s address book and emit emergency alerts to other activists.

The panic button is one of the new technologies the U.S. State Department is promoting to equip pro-democracy activists in countries ranging from the Middle East to China with the tools to fight back against repressive governments.

Now that’s an app.  While the government may be thinking Tahrir Square, what about Washington Square Park?  The cops swoop in for a drug roundup and, bing, you hit the panic button.  No evidence here, officer, as all the street corner sellers scatter.

The U.S. technology initiative is part of Secretary of State Hillary Clinton’s push to expand Internet freedoms, pointing out the crucial role that on-line resources such as Twitter and Facebook have had in fueling pro-democracy movements in Iran, Egypt, Tunisia and elsewhere.

The United States had budgeted some $50 million since 2008 to promote new technologies for social activists, focusing both on “circumvention” technology to help them work around government-imposed firewalls and on new strategies to protect their own communications and data from government intrusion.

Forget satellite borne lasers and missiles and think twitter as the critical technology for the development of freedom around the world.  While the efficacy of communication trends is secondary to the groundswell of opposition to dictatorial and oppressive regimes, it’s hard to coordinate an uprising without a way to communicate.  Think of what Ronny Reagan might have done if only he had an iPhone.

The irony, of course, is that this tech is being developed for revolutionaries around the world, but certainly not intended for domestic availability.  While the government is gung ho for freedom when it comes to unfriendly regimes,  not so much when it comes to free and unfettered communication at home.

The F.B.I. has been quietly laying the groundwork for years for a push to require Internet-based communications services — like Gmail, Facebook, Twitter, BlackBerry and Skype — to design their systems with a built-in way to comply with wiretap orders. On Thursday, the bureau made its first full airing of the “going dark” problem.

“Due to the revolutionary expansion of communications technology in recent years, the government finds that it is rapidly losing ground in its ability to execute court orders with respect to Internet-based communications,” said the F.B.I.’s general counsel, Valerie Caproni.

There’s a lesson in here somewhere, though it may be no deeper than to order a new smartphone from the Verizon store in Bahrain rather than the one on the corner, the shiny new one with the panic button.  It might be useful to include an app that causes the phone to immediately start audio and video recording and transmitting the recording to an offsite server where it can remain, safe from being doctored or deleted.  Now there’s a useful app.

What this panic button concept suggests, however, is that there are potential applications that can have rather broadbased appeal and some dubious uses aside from their intended uses.  The millions being developed now for pedestrian commercial purposes barely scratch the surface of what we may look forward to in the future. 

How about some apps designed for the criminal defense bar?  Maybe a panic button that immediately connects to a criminal defense lawyer to assert a person’s right not to be questioned without a lawyer present?  And tells the nearest Starbucks to deliver a piping hot mocha frappucino to the local lockup?

H/T Ed at Blawg Review