There aren’t a lot of World War II vets around anymore.  Their service to our country has given rise to the name, “The Greatest Generation.”  But that doesn’t mean that any particular vet has the greatest ideas.  Even 91 year old Martin Harty, first-term state representative from Barrington, New Hampshire. 

From the Concord Monitor :

A 91-year-old state representative told a constituent that he believes in eugenics and that the world would be better off without “defective people.”

Barrington Republican Martin Harty told Sharon Omand, a Strafford resident who manages a community mental health program, that “the world is too populated” and there are “too many defective people,” according to an e-mail account of the conversation by Omand. Asked what he meant, she said Harty clarified, “You know the mentally ill, the retarded, people with physical disabilities and drug addictions – the defective people society would be better off without.”

There’s something about being 91 years old, whether it’s the disinhibition of old age or the onset of senile dementia.  Word around the statehouse if that Harty isnt turning out to be the most effective legislator.

Colleagues say he is hard of hearing and has appeared confused in recent House sessions.

“He’s shown signs of great confusion in committee in terms of House process and content,” said Rep. Marilinda Garcia, a Salem Republican who serves with Harty on the House Legislative Administration Committee.

So why is he tolerated?

Rep. Jon Richardson, an Allenstown Republican on the Legislative Administration Committee, said he does not condone Harty’s comments on any level, but he takes into account the fact that Harty is a World War II veteran in his 90s.

House Speaker William O’Brien said in a statement that he does not endorse Harty’s comments but respects “his longstanding commitment to protect the values we cherish.”

“As someone who served in General Patton’s Army in North Africa and Italy against dictators like Hitler and Mussolini, he has given far more to our country and our ideals than most of us ever will,” O’Brien said.

That may well be true, but at what point does the free pass for a World War II vet expire?  One can certainly respect and honor the sacrifice a soldier made for his country while recognizing that his brain is past its prime. 

My father is a World War II veteran as well, having earned his bronze star and three purple hearts.  It wasn’t until he reached his 80s that he was ready to talk about his time in the Ardennes Forest.  His stories were compelling, horrifying and fascinating. And if my father ran for office, I wouldn’t vote for him.  He is still a wonderful raconteur, but his finger is no longer on the pulse of the nation.  To his credit, he knows it.

Martin Harty, for reasons unknown, felt that he would make a good state rep at the age of 91.  Apparently, enough of his constituents agreed to elect him. I’m going to take a complete leap of faith and guess that he didn’t run on the eugenics platform.  His initiative, then, might come as a bit of a surprise, maybe even an embarrassment, to the good citizens of his district.

Of course, Harty has lived a good long time, and may believe that his experiences combined with the unlikelihood of his running for re-election, allows him to speak his mind on issues of controversy.  Thus, Harty elucidates:

Harty said nature has a way of “getting rid of stupid people,” and “now we’re saving everyone who gets born.”

Omand says Harty then stated, “I wish we had a Siberia so we could ship them all off to freeze to death and die and clean up the population.”

Harty told the Monitor he was “just kidding” about Siberia.

Before you dismiss Harty out of hand for being some crazy old coot, his ideas are not without their cultural and historical foundations.  Consider  how the Inuits use to put the non-productive members of their family during times of famine onto an ice floe and let them drift out to sea.  Of course, those weren’t the mentally ill, or even the terminally stupid.  Those were the old folks and the practice is called senilicide.

Maybe Harty isn’t as crazy as he seems.  Just misdirected? Only kidding, as the really nutty ones here are the people who voted for this honorable World War II veteran to represent them in the state legislature.  What the heck were they thinking?

Update:  Even service in WWII  wasn’t enough to carry him through:

State Rep. Martin Harty (R-NH) has resigned from the New Hampshire House of Representatives following his comment to a constituent that mentally challenged people and other “defective” people should die in a modern-day Siberia.

New Hampshire Republican leaders are searching for ice floes.

When the market for lawyers crashed, so too did the work/life balance scam being promoted by those who sought to rationalize their choices.  Just as misery loves company, so do those who chose unconventional paths but refuse to face up to their choices. 

There is nothing wrong with making the decision to reject the typical lawyer path.  It’s not for everyone, and given the numbers of warm bodies being churned out of law schools, and the lies promulgated about being able to “have it all,” there were bound to be plenty of people for whom the law really wasn’t a good fit.  Let me emphasize: There is nothing wrong with this.

But why, then, are some lawyers who decide to pave their own way ashamed of themselves?

I would expect them to deny it to their dying breath. but the evidence is indisputable.  They hold hands and chant, like third graders in the choir, that they are real lawyers.  Sadly, Susan Cartier Liebel, founder of Solo Marketing University, has chosen to use her bully pulpit to become the  head cheerleader for this delusion.

Those who proclaim ‘real’ lawyers as only those who live and breathe the law – well this tragic stereotyped lawyer is often the one pictured as working 100 hours per week forgoing their families, their health, and other personal or business interests.  This scary ‘real’ lawyer is the one most prone to falling into disabling depression, life-altering addiction,  deliberately committing egregious acts to get disbarred because they can’t voluntarily slow down or admit they don’t want law to consume their souls anymore or the pressure to sustain the ‘image’ is no longer bearable.

‘Real’ lawyers come in all shapes and sizes and flavors.

There is no guru on any hill anywhere I know of who has been universally recognized and authorized to determine who has the requisite amount of passion and purpose, the right blend of hours worked and the perfect balance of all of life’s activities to call one lawyer over another a ‘real lawyer’… except the bar commissioners who give (or take away) a legal license based upon your ability to do your job and your other activities within ethical boundaries.

Susan has always had a nasty, if particularly unpersuasive, habit of lapsing into what Stephen Colbert calls “truthiness.”

Merriam-Webster’s #1 Word of the Year for 2006:

1. truthiness (noun)

1 : “truth that comes from the gut, not books” (Stephen Colbert, Comedy Central’s “The Colbert Report,” October 2005)

2 : “the quality of preferring concepts or facts one wishes to be true, rather than concepts or facts known to be true” (American Dialect Society, January 2006)

By creating a strawman, a caricature, and then jabbing at it a few times if not landing a serious blow, she rallies the misbegotten to her side, stroking their fevered brow. They need validation, fearful that others are laughing at them, and she offers it, collecting friends and admirers like Father Damien collected lepers.  Except Father Damien actually helped them, rather than made them feel better about their disease.

It’s fine to argue that any person with a valid license to practice law is a “real lawyer.”  It’s just unhelpful and deceptive.  The problem stems from an abject denial that there is any difference between these “real lawyers” and those other “real lawyers” who have full-time practices with law offices and staff and a decent copy machine. 

If they weren’t ashamed, they would embrace their choices and take pride in what they do instead of faking it to feign the appearance. Again I emphasize, there is nothing wrong with taking an alternative path.  What is wrong is pretending that you aren’t, that your path is “just the same” as lawyers in traditional practice and that there is no difference.  Lawyers who have chosen different paths may have a license to practice law, but they do not have a license to deceive.

A license to practice is an anachronism in certain respects.  It entitled its holder to perform all manner of legal work, even though the horse and buggy days of the general practitioner are largely gone.  Medicine has done a far better job of acknowledging, teaching and qualifying specialists, while the law has kept its head buried in the sand. 

The kid 12 minutes past his admission is just as much a lawyer as the old man with decades of solid experience.  The lawyer who is adept at his work is no more a lawyer than the one who botches case after case.  The lawyer in his pajamas at a keyboard is just as much a lawyer and the one who can appear 24/7 in court when the call comes in.  If the definition of real lawyer is one who has a ticket, then there are no distinctions.  But there are, of course.  The distinction are life threatening to the client who is deceived and sends his paypal payment to the wrong lawyer.

Many of the alternate paths offer sound options for lawyers.  The virtual law office may work very well for some types of practice, enabling a lawyer to charge less, earn more, and perform just as well as a lawyer in a wood-paneled downtown office.  All the VLO lawyer need do is explain to the client that there is no office to drop by should an emergency arise and he desperately needs to speak with someone.  It’s not necessarily a bad thing, but a trade-off.  Informed consent seems an appropriate description.

Other lawyers, those who want to handle a bit of work but only on the time frame that suits the lawyer’s lifestyle rather than the client’s needs, may also be a fine path provided the client understands that the lawyer will not be there for him when the lawyer’s kids have a recital at school.  If the client doesn’t mind sitting in the hoosegow waiting for the standing ovation to subside, then everything is cool.

Even the unbundling of legal services path has its merit, provided that it’s limited to those instances where the client doesn’t suffer for the consequential issues he couldn’t possibly foresee (since he’s a client, not a “real lawyer”) when the unbundled work is done and the client is unceremoniously left hanging by his fingernails.  There are no doubt instances where unbundling will serve a client well and save some decent money, but the critical issue for a “real lawyer” is to identify the risks of unbundling and make sure the client understands that he may be jumping from the frying pan into the fire.

Of particular note are those lawyers who have adjusted their practice to fit their family demands.  I have enormous admiration for those who want to return to or continue to practice law while simultaneously caring for their children.

Aside: Some assume that this refers to women, and that anyone questioning is sexist.  Quite the contrary. This reveals their covert prejudice, as if there are no male lawyers who care for their kids and adjust their practice to change diapers, feed hungry mouths or clap at recitals.  I’m one of them, having never missed one of my son’s fencing meets, and I wont tolerate being told that only women care for their children.

Those who do must, by definition, give up significant time and availability.  It’s a perfectly legitimate choice for a lawyer to make.  It also carries very real ramifications for a lawyer’s ability to complete that 79 page contract that absolutely, positively must be done in 6 hours when the kids are home with the measles. 

I was once put into a foursome with some relaxed looking guys. I asked one what he did, and he told me he was a reformed lawyer. He drove the ball 250 yards, straight and true.  I shanked mine.  I wished I was a reformed lawyer, but I’m not.  He was proud to let me know that he had plenty of time to work on his swing.

There are people who hold law licenses but don’t practice law.  They are not real lawyers.  They may be reformed lawyers, or former lawyers, but they are not real lawyers if they don’t practice law.  The license is just a piece of paper. Being a lawyer is what one does for clients.

Susan is right, that “lawyers come in all shapes and sizes and flavors,” but they’re not all “real lawyers” as far as being honest with the public, and with themselves.  If their alternative paths are not harmful and do not detract from the ability to serve their clients, then take pride in your path.  Admit it happily and readily.  Promote it.  Own it.

If you hide it, conceal it, lie about it, pretend that it doesn’t exist, then you’re not a “real lawyer.”  Real lawyers practice law.  Real lawyers are honest about what they do and the consequences for clients.  Real lawyers are not ashamed of the choices they make.  Real lawyers do not deceive themselves or their clients.  Real lawyers are not liars.  Real lawyers do not hide in the choir of others who share their misgivings about taking alternate paths. Real lawyers are not enablers or apologists of such deception.

Go down whatever path works best for you.  If you can’t be proud of it, own it, be honest about it and put your client first, then you aren’t a real lawyer.  No truthiness changes it.

While every new email from an unknown sender is a romp through the unknown, some turn out to be critical.  This one may save a life, and who am I to withhold information that could save a life?

Sale!! The bulletproof Robo Vest – lightweight and concealed!!

Only for 48 hours – buy the Robo Vest get for free a Neck Heater.

The next generation of bullet proof vests.  Less than 350 usd! Retail price is more than $800!
Level 3A protection NIJ certified. Can also hold anti stab panels (for additional fees).

That’s right.  It can also hold anti stab panels (for additional fees), though I would think that if you need the body armour in the first place, the anti stab panels should be a no-brainer.

I receive a ton of solicitations for police, SWAT and military gear.  Either they know something about my risk factors that I don’t know, or they assume that anybody who writes about cops is in need of body armour, mini-helicopters with bombs and the latest in Tasers for mass destruction.  Not that I couldn’t think of uses for some of this stuff, but my police equipment budget is, how shall I say it, limited.

Curiously, many emails are press releases, asking me to write about whatever newest and greatest device of mass destruction just came on the market.  I usually respond that I never write about anything I have tested personally, and to just send one along. It’s only happened once, and as soon as I have a justifiable opportunity to shoot a bazooka, I promise that I review will be forthcoming.

Speaking of press releases, this was an interesting notion:

To Mr. Greenfield,

Please view the link below for the Judgment Marketplace press release. This is the first online exchange to buy/sell/trade court judgments with a social networking twist. I would very much appreciate it if you can post this or something about Judgment Marketplace on your site. It is a great asset for everyone to know about. It also introduces the term “judgment trade” into the industry.

Thank You,
Shawn Porat-CEO

Judgment Marketplace

Shawn was so enthusiastic about my interest that he twitted me afterward to write a post about his company.  The idea of a judgment marketplace, an online exchange for buying and selling judgments, strikes me as absolutely wonderful for criminal defense lawyers.  I know many clients who would happily pay good money to be someone else to buy their judgments.  And serve their time.  And put their names on registries, and the life.

What?  Oh, that’s not what you meant, Shawn?  Then why would you send this to me?

Seriously, I’ve got no clue whether this is a good idea or a terrible one, as I’m not in the business of dealing with money judgments on either side of the table.  But whoever told Shawn that cold-emailing and twitting were the way to a blawger’s heart and keyboard, needs a good tuning up.  It seems unbelievable that people who start up business think that blawgs exist to promote their business. 

I realize they don’t mean to be offensive, but if they want to advertise, then advertise.  Put out some money and pay for the space.  I imagine some PR flak or social media marketer sold them on the concept of blanket emailing blawgers, who would love, just love, to write all about them.  Because we have nothing better to do.

And some don’t need us to write about them, because they will be more than happy to do the writing for themselves.

Hello Scott,

I was wondering if you accepted guest post submissions for your site Simple Justice? If so, can you let me know what length, topic, or other requirements you might have?

In case you’re unfamiliar with guest posts, what I’m proposing is that you permit me to write an article based on your specifications to be published on your site free of charge of course. The idea is to get some exposure for my new site by offering to write free articles for more established sites like yours. And along with the article, were you to publish it, would be a by-line mentioning me as the author and linking to my site. Assuming some readers enjoyed the article they might then click on the link and thus discover my site. As for the benefit to you, you’d be getting a free article written on whatever subject you’d wish for your site.

If you’d be willing to accept a guest post submission from me, or if you have any questions, please just let me know.

Thank you,

Chris Jacobson
Founder, Criminal Justice Degree

Shockingly, I am familiar with the concept of guest posts, as well as the concept of free promotion.  I’m a very worldly blawger.  I’ve been around a while.  It’s not like I’m Brian Tannebaum, who received this same email and started drooling at the prospect of a guest post.

Of course, these are the same guys who put out those 100 Top Law Blogs and 25 Top Bow Hunting Blogs (no really,they did this) in an effort to get those blawgs listed, who are so deeply flattered and validated by being “named” to such an august list, to link to their post.  Sometimes, they even offer badges to show the world how you’ve been honored, with the badges linking back to the site. 

Don’t laugh.  Some big blogs, including Above the Law, have fallen for this scam, exuding immense modesty in their appreciation for being included in the 100 Top Law Blogs for Judicial Hotties.  For those of you who have a link or badge from these guys because you were deeply honored to be included in their list, maybe you could use a guest post?  Chris Jacobson is standing by, waiting for your call.

It’s got a good beat, and you can dance to it. 



Now if someone would only put the words to rap, maybe we could get young people to hum along.

H/T The Washington Post

Update: And as it turns out, there is a rap version.  Not terribly catchy, but hey, it’s rap.

It’s not just rare to have a crime lab implode, but unheard of.  In Nassau County, the impact of incompetence and deceit that caused closure of the crime lab is just beginning to be felt.  To some, it’s a slap in the face.  To others, it’s a caress.

An email sent out by William Kephart, president of the Nassau County Criminal Courts Bar Association said that in technical reviews conducted, “so far in 11 cases [the NYS Inspector General’s review] have in fact discovered errors in all 11.”  How cool is that?

This was a lab not only run by the cops, of the cops and for the cops, but physically situated in police headquarters.  And nobody there gave a damn whether its work was legit.  Shocking.  Of course, they learned a little from the spray after feces met fan.

Now that the laboratory, which had been at Police Headquarters in Mineola, is closed, county officials said they were sending evidence elsewhere to be tested. The county is also constructing a new laboratory in New Cassel under new leadership.

Marc Gann, president of the Nassau County Bar Association, called Rice’s pumped-up testing plans “a major step in the right direction” but said they should reach back to 2005, when the lab was first placed on probation.

Brooklyn Democratic State Senator Carl Kruger is being processed as I type.  The  New York Times explains why:

Mr. Kruger had been under investigation by federal prosecutors in Brooklyn who were looking into accusations that he had helped businessmen surmount bureaucratic hurdles in exchange for assistance raising campaign money, but the charges stemmed from an investigation by Manhattan federal prosecutors and the Federal Bureau of Investigation.

The offensive act:  He helped businessmen surmount bureaucratic hurdles.

The benefit derived from the act: Assistance in raising campaign money.

The crime: Politics.

It’s a curiosity.  The nature of politics requires those in office to raise ridiculous sums of money for their campaign, or their next campaign, hours after their last election.  Where does this money come from, and why does anyone want to part with their cash on hand and give it to some political guy?

The principled answer is that people contribute to the campaigns of people running for office because they agree with their philosophy, believe they will do an excellent job representing their constituents and, assuming they aren’t related, find them worthy of financial support.  Who are we kidding?

There are certainly some, maybe even plenty, of people who contribute to political campaigns because they are staunch believers and supporters.  Most are nickel and dime contributors, though a couple (Soros and the Koch Brothers come immediately to mind) are big bucks.  Yet a significant amount of the support necessary to run for office comes from otherwise nice folks who want something.  They want to curry favor.  They want a guy in office who will vote a particular way.  They seek a specific outcome.

This is the American way.  Trust me when I say that no politician truly enjoys going out night after night to local do-gooder groups and cub scout troops, handing out proclamations praising the planting of a tree.  It’s not that they don’t believe in the cause, or don’t like the group, but that they want to stay home with their family, kick off their shoes and watch Steven Tyler attempt to express a cogent thought or see which hairstyle best suits J-Lo.

It’s unbearably oppressive to get on the hamster wheel of politics. Why any sane person would want to do it is beyond me. Even the most philosophically naive learns quickly that the hamster wheel never stops turning.

My guess is that the question in Senator Kruger’s case will be whether the favor done had a quid pro quo, as in, he sold his support for a cash payment.  Maybe there was a hard, cold deal on the table, where Kruger promised to help a business “surmount bureaucratic hurdles” for $10,000 a pop. 

But he didn’t spend the money on a “fact-finding” trip to the leeward islands, or a sordid weekend with some floozy, or even bespoke suits so he could dress appropriately when he handed out proclamations.  It was campaign money, the life blood of politics. 

One might argue that there would be less potential for a crime if government didn’t create bureaucratic hurdles that needed surmounting through the interference of a state senator.  There aren’t too many people out there arguing for the creation of bureaucratic hurdles to make every business’ life pointlessly difficult.  The “hurdles” arise for good intentions, to protect us from some evil, real or imagined (or misguidedly imagined when linked to the name of a dead child), but somehow seem to take on a life of their own, with unintended consequences spreading misery far and wide.

And so constituents, and friends of constituents, seek comfort and aid from those in power who can use their influence to make the seas of bureaucracy part and allow life to move forward.  If Kruger did such a thing in a cause or case with which he disagreed, then he betrayed a trust.  If he did so for cash, then he committed a crime.

But if Kruger’s influence helped someone who deserved to be helped, and if Kruger’s efforts to help a deserving constituent produced a hefty contribution to his campaign chest to keep this hard working, right thinking, senator in office, then it would seem that the system worked perfectly. 

We may not like the way politics works.  In fact, we may think it stinks.  But the answer is to change politics, not indict those who are running on the hamster wheel as fast as they can.

Tomorrow, March 11th, will be Associate Justice Antonin Scalia’s 75th birthday.  He’s just a kid, with many years ahead of him on the Court.  Perhaps that explains why, in Linda Greenhouse’s view, he’s so horribly loud and intemperate.

One rough measure of how any Supreme Court term is going is to track the decibel level of Justice Antonin Scalia’s dissenting opinions. In a case last week, the question was whether statements made to the police by a shooting victim as he lay bleeding to death in the parking lot of a Detroit gas station were properly used at trial to obtain a murder conviction of the man he named as the gunman.

That conclusion enraged Justice Scalia. Of course the police officers knew they were gathering evidence for potential use at trial, he objected, and to maintain otherwise was “so transparently false that professing to believe it demeans this institution.” With this decision, the Supreme Court “makes itself the obfuscator of last resort,” he complained. A “gross distortion of the facts,” “utter nonsense,” and “unprincipled” were a few of the other zingers the dyspeptic justice aimed at Justice Sotomayor’s opinion.

But what strategic sense could lead a justice to administer such a public thrashing to a junior colleague?

So the question raised by Justice Scalia’s most recent intemperate display remains: what does this smart, rhetorically gifted man think his bullying accomplishes?

The question is obviously loaded.  Intemperate?  Bullying?  She could just as easily have asked why other justices wrote tepid, obtuse opinions that left one as confused after reading as before. 

Nino Scalia is loved/hated for his strong views, though to the criminal defense bar, as distinct from broader liberal-inclined groups, Nino has done more to strengthen constitutional protections in the courtroom than any justice since Rhenquist took the bench.

Regardless of how one feels about Nino’s judicial philosophy and consistency, consider the efficacy of his words.  In the majority, his writing is usually clear and straightforward, with notable exceptions like the orphan paragraph of Heller that screws the entire decision.  It’s in dissent, however, where he shines.

Greenhouse, not surprisingly, characterizes Scalia in evil terms, bully, intemperate, loud. She seeks to judge him, however, on the ineffectiveness of his tirades.

It’s a puzzle. But having raised the question, I will venture an answer. Antonin Scalia, approaching his 25th anniversary as a Supreme Court justice, has cast a long shadow but has accomplished surprisingly little. Nearly every time he has come close to achieving one of his jurisprudential goals, his colleagues have either hung back at the last minute or, feeling buyer’s remorse, retreated at the next opportunity.

The suggestion is that Nino has scared away or offended the others with his attacks on their sanity and upbringing, thus proving that his dissents are worthless indulgences that have been both offensive and ineffective. 

At Volokh Conspiracy, Orin Kerr offers a different take:

[T]he main test for Scalia’s dissents is not whether they worked with the current Justices, but whether they influence the law in the future. As a former professor, Scalia knows what he’s doing, I think. He knows how to write a dissent in a way that is likely to be excerpted at considerable length in a casebook, and he knows how to write in a way that is very entertaining for bored law students to read. By writing a sharp, even overheated dissent, Scalia may sometimes annoy his colleagues. But he also ensures that the issue in the case will be debated in law schools in significant part on his terms, which I think is a pretty significant accomplishment.

While agreeing with Orin, it seems too narrow and parochial an explanation, as if Nino’s concerns are limited to the legal community and the rest of society doesn’t count.

For about a decade, I road on the train every day with a friend who went to Xavier, a New York Catholic military high school with Nino.  He too was a straight talker.  He had opinions and he had no qualms about letting me know what they were.  There was no doubt, no equivocation, no apologies.  He came from an era, and upbringing, where there was no shame in speaking one’s mind, even if it didn’t assuage the listener’s sensibilities.

Greenhouse’s approach presumes the virtue of a softer, more accommodating approach.  Whether one views it as the subtle language of scholars or the tepid tones of acquiescence, she clearly favors a softer, gentler approach, where one wouldn’t be called a “bully” by one’s detractors.

But consider Scalia’s statement from a 2008 interview :

Plus, dissents are just good. Look back at Korematsu [the 1944 case in which the Supreme Court upheld an executive order excluding Americans of Japanese descent from areas deemed critical to national defense]. Isn’t it nice to know that Robert Jackson – at least someone on the Court – saw how horrible it was? A dissent keeps you honest. Sometimes after a dissent circulates, some of the points are so obviously incorrect that the majority will cut back some of its broad principles.

As Nino says, “a dissent keeps you honest.”  A dissent isn’t meant to make the majority feel better about its decision.  It’s not the mere lack of a vote out of nine.  It’s about a disagreement of sufficient magnitude that the justice of the Supreme Court of the United States cannot speak with a unanimous voice.  Consider, if you will, that this is the court that announces the most fundamental and final word on what the law means for all of us, and nine people can’t always agree.

Is there an ulterior purpose to Nino’s stinging dissents?  Must there be some Machiavellian undercurrent to his writing?  Is it written in plain, clear, often brutal, language so that it’s comprehensible to law students, who would never grasp his point if it was presented in nuanced, dulcet tones?

Or is Antonin Scalia the sort of man who sees no point in his existence, no point in his writing, if not to say whatever it is he has to say as clearly, and yes, brutally, as possible? 

The likelihood of his dissents changing minds on the Supreme Court may vary from case to case or in accordance with the strength of others’ convictions.  The likelihood may be slim, even minuscule.  Does that mean Antonin Scalia shouldn’t leave behind a record of what he really thinks, express his beliefs in language that is clear, unequivocal and certain?  Is there virtue in being a wishy-washy wimp because you hurt no one’s feelings along the way?

When future generations look back at today’s Korematsu, will anyone know that you had the balls to call it horrible, or will the best that can be said about you be that you offended no one?  My answer to Linda Greenhouse’s question is that Nino writes stinging dissents because he must.

Update:  At the Atlantic Wire, this post was picked up as part of their 75th birthday coverage of Scalia’s legacy, and I’m described as a “conservative legal blogger.”  Who knew?  That’s what I get for saying something nice about Nino.

Every once in a while, some enterprising law enforcement officers come up with what they perceive to be a bright, no brilliant, idea.  This happened to Monroe County Sheriff’s Detectives Doug Brannon and Pat Henry, and it was, as  Radley Balko says, a whopper.

On May 7, 2009, the defendant’s appointed counsel filed a motion for a continuance on the basis of her discovery that a member of the Monroe County Sheriff’s Department had represented himself as two separate attorneys, had pretended to handle parts of the defendant’s case on the defendant’s behalf, and had instructed the defendant to cease communication with appointed counsel. Counsel noted that she had previously requested a mental evaluation of the defendant in January 2009 on the basis of his claiming to be represented by a “federal” attorney. One week later, citing the same grounds, counsel filed a motion to dismiss the indictments in all four cases on the basis that the State had inappropriately interfered with the defendant’s right to counsel.

This comes from the Tennessee Court of Appeals in State v. Dawson.  The detectives went into the jail, using the aid of a jailhouse snitch, and persuaded the defendant that one was a “federal” lawyer (which in jailhouse parlance means “big time”), that he could fix his case and that the defendant should stop cooperating with his appointed (read, “worthless”) lawyer.

But for one detail, you’ve got to admit it’s a great scheme.  It allowed them to get the defendant to admit everything in the world while preventing his real lawyer from intervening.  Then, of course, there’s that nasty detail, the interference with the defendant’s right to counsel.  Oh yeah.  That.

[T]he conduct of the law enforcement officers in this case, and in particular Detective Henry, is so egregious that it simply cannot go unchecked.  That Detective Henry would illegally pose as an attorney and arrange the circumstances of the defendant’s case to make it appear as though he had successfully undertaken legal representation of the defendant is abhorrent.  That the detective would specifically instruct the defendant not to communicate the relationship to his appointed counsel, in what we can only assume was an effort to enlarge the time for the detective to gain incriminating information from the defendant, renders completely reprehensible the state action in this case.  Given the unconscionable behavior of the state actors in this case and the fact that the defendant was essentially prevented from proving prejudice through no fault of his own, we have no trouble concluding that the only appropriate remedy in this case is the dismissal of all the indictments.

All things considered, it worked out pretty well for Dawson, all indictments being dismissed.  And it was, brilliance notwithstanding, incredibly egregious.  Which makes Balko’s question a pretty good one: Why didn’t anyone else who knew what these detectives were up to share in the responsibility for this outrage?

According to KnoxNews.com, Monroe County Sheriff Bill Bivens and DA Steven Bebb had some knowledge of the ruse, but did nothing to stop it.

During a hearing on the issue, Sheriff Bivens testified that he was vaguely aware of Henry’s plot and did not see “a problem with it,” adding, however that “if it’s illegal, of course, I don’t want to do it.” Bivens did not order a probe of Henry’s actions or take any disciplinary action; nor did Bebb initiate charges of impersonating a lawyer.

Instead, Bebb successfully persuaded Judge Reedy to overlook it all.

Of course, if responsibility flowed uphill, it would prove awfully hard to keep a full complement of top echelon sheriffs around.  Still, Sheriff Bivens’ equivocation has to warm even the hardest heart, as he would never do such a thing “if it’s illegal.”  Can’t blame him for trying, though.

While this bizarre and extreme effort to undermine the defendant’s constitutional rights in order to obtain evidence against him was ultimately thwarted, it reflects a deeper problem that keeps popping up in the most odd, and ordinary, places.  In the zeal to enforce the law and convict the bad guys, there appears to be no bar below which some cops won’t go.

It may well be that Sheriff Bivens didn’t appreciate just how absurdly wrong and unconstitutional the efforts of his detectives were.  Constitutional acumen isn’t necessarily a critical qualification for the sheriff’s job.  Of course, that doesn’t alleviate the good sheriff (or the district attorney) from his responsibility to protect and defend the Constitution.  If he’s not terribly clear about what’s allowed, there are no doubt people he could ask about it, such as DA Bebb.  And if DA Bebb gives his thumbs up, as opposed to merely trying to salvage the cops from responsibility for their outrageous conduct after the fact, we have a separate, deeper problem.

Circumvention of constitutional rights is almost a game played by all law enforcement officers (think Reid Technique to get defendant’s to talk despite being given their Miranda warnings), and is encouraged by the courts who have approved (see Whren) deception as a legitimate law enforcement technique.  Where does it end?  Which lie goes too far, when others are embraced and excused by the courts, despite being every bit as deceitful and cleverly designed to make an end run around the defendant’s constitutional rights.

It would certainly behoove law enforcement officers who think they’ve come up with a novel, brilliant scheme to beat the Constitution and get their hands on information they would otherwise never be able to get, to ascertain whether it’s permitted before engaging in their scheme.  It would be far more effective, however, if all the way down the line, from cops to courts, the law stopped giving approving recognition to lies, schemes and scams used to investigate and prosecute criminals.

And as a side effect, maybe it would prove beneficial for those accused of crimes to lean that the government isn’t a bigger liar, schemer and scammer than they are.  Just saying.

The name is absolutely awful.  The concept far worse.  And the question remains, which of you will rush to join Shpoonkle, the eBay of lawyering.

The concept is simple enough, people seeking legal help post their issues, and lawyers bid for the work.  The limbo concept applies, how low can you go. 

It’s founder(s), facially anonymous though, according to Susan Cartier Liebel, it was created by an “entrepreneurial law student” (but she doesn’t want to hurt his feelings by telling him his baby is butt ugly), who sees a chance to make money by claiming to offer affordable legal services to the masses by having lawyers bid against each other to see who can offer their services cheapest.

Any lawyer who signs up for this service should be immediately disbarred, then tarred and feathered, then publicly humiliated.  It doesn’t matter how awful a lawyer you are, how pathetic your business, how grossly incapable you may be in getting any client to retain you.  Those are all good reasons to apply for the assistant manager’s position at Dairy Queen.  This is worse.

Aside:  If you require further explanation why this is not a responsible means of acquiring business, then I urge to run, not walk, to the nearest street corner in short shorts.  This is not at issue.

The putative explanation for this effort is that legal services are too expensive for most people, and this ugly-named website will match up clients with lawyers who can provide the needed legal services for a price they can afford.  It is the elevation of price over quality, on the one hand, but for consumers who can’t find an affordable lawyer otherwise, that may not be the worst thing.  There is certainly an argument to be made that no lawyer is better than a bad lawyer, and that money paid to a bad lawyer is money flushed down the toilet.

Rather, the concept is a perfectly reasonable next step to the de-professionalization of legal services, where the purchase of legal services is no different than buying a widget at the big box store for the lowest available price.  From the perspective of the cost-sensitive consumer, it probably seems like a great idea.  The client isn’t concerned with the lawyer’s actual (as opposed to self-attributed) competence in a particular area of law or in general.  The client wants one thing only: a lawyer willing to do the work at a price he can afford.

When a friend of mine brought this idea to my attention yesterday, I snarkily responded:

I’m sure it will be a huge success and make lawyers financially available to all Americans for a relatively brief period of time.  Once all the users are imprisoned, we can go back to normal.

The fact remains that there will be lawyers who will use this service, no matter how low they have to go to put a few bucks in their pocket.  When the phone doesn’t ring, and the kids are hungry for dinner again, something has to give.  People do a lot of crazy things for money, and as crazy things go, this isn’t even in the top ten.

By no means does the need for money make this a justifiable mechanism.  It is anathema to what the legal profession is supposed to stand for, implicates a wide variety of unpleasant ethical considerations and reflects a further step, maybe giant step, away from excellence toward commodity.  Yet my fear is that the lawyers who would sign up for this mutt couldn’t care less.

That many people are incapable of affording quality legal services is a given.  Lawyers are expensive, and the need for legal assistance has, unfortunately, become pervasive in everyday life.  People take a huge risk not obtaining counsel.  They take a huge risk in obtaining counsel at bargain basement rates.  It seems like there’s a huge risk no matter where they turn.

The need to resolve the overarching problem, that quality legal counsel is financially out of reach to many, is a problem, and the legal profession has yet to make any serious effort to come to grips with it.  The solution of flooding the market with lawyers of dubious merit and even more dubious ethics isn’t the solution, but neither is bizarrely-named schemes that encourage lawyers to do anything necessary to score a case from some detached name on the internet.

I find it hard to blame some anonymous entrepreneurial law student from putting together this horrible idea.  He’s just trying to make a buck, and the creation of this new concept doesn’t compel lawyers to sign up, lawyers to outbid each other to see how low they can go, lawyers to try to glom up cases in areas where they lack competency or lawyers to provide less than stellar services.  It doesn’t require that things go horribly wrong.  But we all know they will.

On the other hand, this idea offers lawyers yet another opportunity to assess just how down and dirty we want the profession to go.  Are we really willing to don the hotpants and walk the boulevard?  Are we that far off from actually doing so?  Are we willing to close our eyes and let those among us do so, and thereby reduce our profession to the streetwalker level?

It’s now in our face.  What do we plan to do about it?



Update:  Proving yet again the value of institutional memory,  Bob Ambrogi notes that the idea behind  Shpoonkle is not only old news, but has failed numerous times before.

Way back in 2006, I wrote a post here about the launch of just such a site. Called Tip-Mart, it promised that its reverse-auction system “eliminates extraordinary market inefficiencies, drives down prices, increases sales, and provides new value to both buyers and sellers.” Coincidentally, it too was created by a college student who believed he had the next new thing. Today, the site no longer exists.

Another such site went by the name LawyerQuotesFast.com (and also by the name LawyersForLess.com). This one, too, is no longer to be found.

As a matter of fact, there was even once a law review article written about reverse-auction sites for legal services. At the time, the author noted that there were six such sites when she finished her first draft of the article, but that two had already shut down by the time the article was ready for publication and a third had abandoned its auction component.

And while none of the failed predecessors had great names, none were nearly as horrible as this mutt.  Bob asks where now is the time for nasty lawyers to strut down the boulevard.  If there is a God, history will repeat itself.

This comes from a column that appeared in  USA Today four years ago:

Last year, we turned our red wagon into a replica Conestoga wagon with real sewn canvas over wooden ribs, wooden water barrels, quarter horse — and, yes, plastic rifles. It was a big hit and the kids won first prize for their age group. The celebration, however, was short lived. As soon as one mother spotted the toy rifles inside the wagon, she pulled her screaming children out of the event, announcing that she would not “expose them” to guns.

I later received an e-mail from another parent that this covered wagon was no “innocent fantasy” since I must be aware “what guns were used for in the Old West?” It turns out that my kids were apparently rehearsing the genocidal massacre of Native Americans.

What is astonishing to me is how detached the zero-tolerance movement is not just from research but also from reality. One Mothering magazine article advised mothers on how to respond to their boys found playing with guns or swords. The writer suggested that parents take their boys aside and “emphasize healing” and show their boys how to make “magical medicines.” The magazine also advised that parents could also “transform guns into magical wands” and “channel energy into other games.” My personal favorite, however, was that parents should stop such games and have the kids play “peacemaking” by creating “a roundtable with a mediator and write a peace accord.”

I assume these notions come from some well-intended woman, or the most beta-ish male ever, because they reflect no reality I’ve ever seen, in my own experience or in my observations of others.  No little boy wants to put aside their gun to make “magical medicines.”  That anyone, woman or man, would urge such a thing is laughable.  That’s not the way boys roll. 

My son is no more in training as a serial killer than Turley’s sons. He’s a great student, deeply involved in community service, who happens to be very good with an epee.  Ironically, he might be suspended for pointing a finger gun at another student, but he’s applauded for his skill with an epee, having  won every honor high school fencing has to offer. 

Had my son decided that he wanted to dance ballet, I would have happily spent my evenings repair toe shoes.  But he chose fencing instead.  According to the earth mothers, I’m fostering violence by allowing this. They’re wrong.  And I reject the notion that there is any shame in my son’s “violent” choice.

It’s long been a curiosity to me that women can openly promote feminism without any serious backlash for their flagrant elevation of female virtues to the exclusion of men.  Being a man, and having male interests, isn’t an inherent evil, and their attempt to make it so is, well, a joke amongst men.  Sure, it’s often a tacit joke, since we don’t want to fight a ridiculous battle, and we enjoy the company of women for other purposes, so we pretend to agree and sublimate truth in an abundance of discretion. 

But make no mistake that we’re letting women get away with this just to keep the peace, not because we agree with it.  Sure, there are some namby-pamby men who wallow in their emotions, but most of us, even the betas, do it just to get along.  Can you imagine the outrage that would follow a CLE entitled  Men and the Law, How to be the Masculine Lawyer you always wanted to be?  Yet there’s a Women and the Law CLE available at every turn.

Boys will be boys.  What else should they be?  It doesn’t reflect their future as murderers or their adoration of the slaughter of native Americans.  They’re just boys doing what boys like to do, now and always.  And the most vibrant dreams of earth mothers that games of “peacemaker” will make boys grow up more like girls isn’t just an absurd fantasy, but an assault on the nature of males.

And if that’s not enough, there are girls who fence epee too, and they can be just as ferocious on the strip as any boy.  No apolgies for them either.

Update:  I’ve just been informed that today, March 8, 2011, is International Women’s Day.  Women everywhere are holding events to celebrate themselves.