At least for now, no one is arguing that 21 year old Evan Daniel Emory isn’t deserving of some condemnation.   Eugene Volokh thinks so.   Jonathan Turley thinks so.   Radley Balko thinks so.  Kinda.

Evan Daniel Emory, 21, got permission from Beachnau Elementary School officials in Michigan to record himself singing the song “Lunch Lady Land” in front of a class of first graders, but under the false pretense that he wanted to use the video as part of his application to a school of education. Emory was actually planning a comedy bit. He later dubbed in sexually profane lyrics and posted the video to YouTube, making it look as if he had sang the dirty lyrics directly to the children.

And then all hell broke lose in Ravenna, Michigan.

Now, I can understand if Beachnau school officials and parents don’t share Emory’s sense of humor. I can understand a parent becoming rather irate upon learning that Emory had serenaded the kids with filthy lyrics. And even after learning that the dirty audio had been dubbed in, I can also understand a parent might still be ticked off that his kid’s face appeared in the finished product. (The video is obviously offline now, but according to the article, it begins with Emory writing on a chalkboard, “Disclaimer: No children were exposed to the ‘Graphic Content’ of this video.”)

Then Radley played a bit of a joke on his readers, suggesting that the local prosecutor, Muskegon County District Attorney Tony Tague, responded by calming down the townspeople with their torches and pitchforks.

“Look, I know a lot of people are upset. But the video has been taken down, and the actual damage done to the kids is minimal. They didn’t actually hear the sexually suggestive lyrics. Any time you have a story about sex, children, and the Internet, there’s going to be a tendency for some people to overreact. Mr. Emory showed incredibly poor judgment here, and I hope he has learned his lesson. But my job is to fairly apply the law, and I simply don’t think it would be in the interest of justice to charge Mr. Emory with a crime just to register our moral outrage at his prank.

Of course, that’s not what happened. Instead, Emory was arrested and charged “with manufacturing child sexual abusive material, a 20-year felony.”

While no voice has yet been raised in support of the charge, contending that anything done here satisfies either the local statute or some broader notion of creating child porn.  Still, there remains a question of whether this conduct constitutes a crime, and if so, what?

It appears from Radley’s post, most notably his title, The Criminalization of Borat, that this conduct falls into the prank category, and that, “in the interest of justice,” it’s dismissed as no harm, no foul.  It’s not nearly as clear to me.

There appears to be little doubt that Emory lied his way into a school, thus fraudulently inducing the school to permit him to obtain footage of first graders for his own purposes.  My understanding is that their faces were readily identifiable in the video, which was gone before I could see it.   While the children were never, in fact, exposed to anything inappropriate in song, they were exposed to the world in the video.  That alone troubles me.

It may well be that my personal sensibilities about the exploitation of children color my vision.  It may be that a shot intentionally fired at a person’s head, which happens to miss, doesn’t negate an attempt at murder.  But the conduct here strikes me as going beyond a mere prank, and exceeds the no harm, no foul, analysis. 

If so, then what crime would it be?  Or am I overly sensitive to improper conduct involving children?

As I watched Lance Armstrong win the Tour de France, again, my admiration for his achievement was dampened by the sight of a U.S. Postal Service logo on his chest. The post office  spent $4 million  for the endorsement.  This came at a time when the price of stamps was increasing hourly while service cutbacks were constantly threatened.  Performance by postal employees did not reflect performance by Armstrong.

Now $4 million, in the scheme of a big money operation like the postal service, isn’t a great deal of money, although it would be a few rolls of stamps.  What was disturbing was that these quasi-public monies were being used to fund a private team for the purpose of marketing.  I wondered, “wouldn’t the better use be to improve service, reduce costs, perform its public function,” than put its logo on Armstrong’s chest?

Apparently, I was the only one who thought this, as there was no cry of anguish at the sight of a stylized blue eagle (as if the lack of an up-to-date logo would have adversely affected the existence of the Postal Service) stretched across Lance’s yellow jersey.  As much as it bothered me, I was alone.

Following the Superbowl,  Jonathan Turley noted that there was a Navy flyover in the pregame that cost about $450,000.  While these flyovers stir patriotic fervor, and can be pretty cool to watch, he still found it a bit problematic since the stadium was domed. 

The Navy insists that it is good for public relations . . . for the public to see that it is willing to spend hundreds of thousands of dollars at a time of economic stress to fly over a closed domed stadium.

Much of the cost for the flyover stemmed from having to transport the F-18 jets from Virginia Beach to the Great Republic of Texas, even though the spectators inside the stadium watched the flyover on the jumbotron.

Turley  raises another issue with the military’s expenditure of $100 million to sponsor NASCAR.  For those of you unfamiliar with NASCAR, it’s the auto racing progeny of bootleggers escaping from the revenuers, reduced to turning left at high rates of speed. Via CNN :

Rep. Betty McCollum, D-Minnesota, is offering an amendment to the 2011 House budget bill to ban the sponsorships, which her office said has cost the military $100 million over the past 10 years, according to the Minneapolis Star-Tribune.

The National Guard sponsors Dale Earnhardt Jr.’s team, the Army sponsors Ryan Newman, and the Air Force sponsors AJ Allmendinger, according to HamptonRoads.com.

“I would challenge the Pentagon to give me one example of someone today in Iraq or Afghanistan who saw the Go Army car going around the racetrack and that’s why they joined the Army,”

Not surprisingly, the people who get the money think otherwise.

“NASCAR fans are the kind of people who fight America’s wars, which would put into question the wisdom of banning the military’s ability to reach out to them,” NASCAR spokesman Randy Poston said in the HamptonRoads report.

He’s got a point about NASCAR fans, with the rest of us sipping champagne in our limos.  Yet the point doesn’t seem to have any nexus, any connection between logos on cars and getting killed in Iraq.  Well, maybe the getting killed part.

At what point did marketers infiltrate our government and whisper in the ears of elected officials that tax dollars would be best used to “authentically engage” with the public, thus making them desire to hand over their money, vote for the incumbent, offer up their children as canon fodder and subject their genitalia to a quick feel by overweight men?

I say this not because of any skeptical view as to the efficacy of spending $100 million on NASCAR, which could have otherwise been used to buy a couple of Bunker Busters in case Saddam is resurrected, but in sympathy with Turley’s point, that our schools are cutting teachers while the military is sponsoring race cars.  This might trouble some people, especially teachers.

One of the fundamental benefits of being a government is that you’re the government.  You have the ability to tax, as well as the ability to decide where those tax dollars get spent.  While talking heads spew sound bites on television carefully crafted to impugn the other side while not cracking up on camera, you know that nobody else gets to form a government to compete with you. 

Sure, there private enterprises challenging governmental hegemony, from Federal Express to Halliburton, but has anybody figured out that they way to maintain control is to do the job well rather than market?  And if you can’t provide a service as well as a private company, then that’s just one less thing you have to worry about in office. 

My guess is that marketers, of the sort who promote their services to lawyers and laundry detergent, can offer a ringing endorsement of why our tax dollars should be spent on promoting government services, with a bit of it going to the marketers who come up with these bright ideas. 

Still, I have to wonder whether aficionados of NASCAR are willing to have their kids’ teachers laid off so that our military can put Army on the hood of Ryan Newman’s Chevy. What?  Oh.  They laid off their teachers years ago and nobody notice? 

In  a comment to this post on the hot, sexy issue of copyright, Mark Draughn, better known as the Windypundit, related the issue to a massive screw up by the Department of Homeland Security.  Which one, you ask?  Isn’t sad that the words “massive screwup” aren’t sufficient to describe it?  Anyway, this one :

What if you woke up one morning and your blog’s URL pointed to a Department of Homeland Security page that said, “Website seized for trafficking in child pornography”? That’s what happened to 84,000 innocent site owners this week, and there’s no guarantee it won’t happen again.

It appears that our computer savvy protectors at ICE seized a primary domain without realizing that it had tens of thousand of legitimate subdomains, and perhaps a few that were less than legitimate.  Windy commented:

As it happens there’s was an apparent example of what can go wrong with this kind of process just the other day. According to Radley Balko, the DHS got a court order to seize the domain names of 10 sites that allegedly had child pornography on them. Apparently, the order accidentally removed an entire 2nd tier domain (kind of like removing blogspot.com instead of someblogname.blogspot.com), and over 80,000 websites were diverted to a DHS message claiming the site had been shut down for hosting child pornography.

You don’t have to hate copyright to think that DMCA and related laws are slanted too far in favor of copyright holders (especially well-established content producers) to the detriment of technology companies, small content producers, and consumers. It may be that reproducing the paper-books-and-vinyl-records content licensing system in the virtual world is not the best policy.

This raises a critical distinction that’s too often missed, or misunderstood.  Don’t confuse bad execution with bad law. 

One of the foundational wrongs often discussed in the blawgosphere is the conviction of innocent people for a heinous crime, like murder or rape.  There’s no question that it happens.  Does this mean our laws prohibiting murder or rape are wrong or bad?  Of course not.  These are terrible crimes, and they should be.

The problem is the manner in which the investigation and prosecution of these individuals occurs, with a thousand moving parts any of which can go wrong and produce very bad results. 

In a more controversial example, what of search warrants based on stale information or executed at the wrong location?  Is the solution to do away with search warrants, or to perform the function of review or execution far better?  Some might hate the idea of a warrant, an ex parte application to search and seize, but most of us realize that it’s a necessary method of obtaining evidence of a crime.  Without search warrants, and assuming warrantless searches never occurred, concealment of crime would be a snap, and seizure of evidence or contraband would be rendered impossible.

Are we seeking a society where, in the elevation of rights over reason, crime could be committed without recourse?  Few of us really want to be the victim of crime, and as much as we carefully guard our rights, we aren’t so blind or simplistic as to think that crime isn’t a bad thing. 

Windy’s comment reflects the conflation of the two independent issues.  There is no law, no process, that can’t be screwed up and result in harm, even massive harm, if handled carelessly or malevolently.  The point of warrants is to have a neutral magistrate pass on its propriety before allowing the government to have its way with us.  Before the question is put to the magistrate, the government is expected to exercise a bit of care and caution so as to be reasonably correct before pointing guns at people’s heads.

In Windy’s example, a few unfortunately typical problems appear to have arisen simultaneously, producing outrageous results, with 84,000 “innocent” subdomains being seized and rerouted to a DHS webpage that informed the viewer, “Website seized for trafficking in child pornography.”  There’s nothing like grandma’s recipe blog beings smeared as a kiddie porn trafficker.  Try shaking off that image quickly.

The government has never shown finesse at dealing with technology, and the courts even less so.  The heavy hand of law enforcement, which will attest whenever possible to its omniscience in all things under the sun, could make the effort to use a scalpel rather than a bludgeon.  Yet it fails to do so with remarkable frequency, and rarely shows much concern for its failings or interest in doing it better.  But this isn’t limited to a domain seizure, but all things tech. 

Similarly, judges who sign off on warrants need to be sufficiently aware of the weapon they’re handing over to the government, as part of their oversight function in assuring that the warrants are sufficiently specific to cover no more than what’s required.  While it’s easy to blame the government for the 84,000 victims of its ignorance, let’s not forget that a judge gave his seal of approval, perhaps by rubber stamp.  This isn’t good enough, and whoever signed the warrant failed to fulfill his function.

But the  Techland post describing this fiasco argues;

So far so good, since it’s perfectly legitimate for ICE to target the bad guys. But critics of the seizures point to a seeming lack of due process. The feds determine a site to be infringing and ask a judge to sign a seizure warrant that tells the site’s domain name company to transfer control of the domain name to the government, which then points it to a “seized by DHS” page. The problem is the warrants are issued ex parte, which means that the targeted website owners are not notified and don’t have an opportunity to present their side of the story to the judge.

Ironically, the “critics” referred to in the paragraph is David Post at Volokh, and his criticism is bizarre, arguing that it was “outrageous” that the warrants were issued ex parte.  All warrants, other than for the seizure of real property, are issued ex parte, and warrants would serve no purpose if they weren’t.  If the execution had been handled competently, and the only affected websites were in fact showing or selling videos of actual child pornography, should they have been left in operation while the issue was challenged?

Certainly, after the execution of the warrant, there must be due process provided for the owners of the websites to challenge the government’s action, regardless of whether the government handled the matter perfectly or horribly, as here.  But we don’t let the wrong continue unabated, in this case children compelled to engage in sex acts with adults, while lawyers fight it out in court.  The first move is to stop the bleeding.  The problem is to stop only the bleeding.

Regardless of how one feels on these issues, and the right and wrong of underlying laws is invariably based on a weighing of priorities and harm, where we may hold different but legitimate opinions, the fact that the government performs its duties poorly, incompetently, stupidly, is a flaw of the government’s execution, not the law.  There’s plenty of blame to be placed, but let’s make sure we place it where it belongs.

Update:  At the time that Windy posted his comment, Radley Balko had not (that I can tell) posted anything about this case.  He has now. 

So the Dean of your law school gets murdered. Regularly. As part of an example by your criminal law professor.  Who’s a white male. And the Dean is a black female. And this makes you feel bad. Discuss.

From DelawareOnline , this is no caselaw example, but what happened at Widener Law School:

During a spring 2010 criminal law class, Lawrence Connell shot and killed Linda Ammons — hypothetically speaking.

Connell considered the pretend notion of his murdering the Widener School of Law dean an absurd example meant to help students remember a legal principle.

But at least two students filed complaints with administrators, calling it violent, racist and sexist, according to Connell’s attorney, Thomas Neuberger.

Now, the controversial classroom imagery has left the associate professor fighting to keep his job of 26 years and alleging Widener violated his right to academic freedom.

For any reader who didn’t enjoy the pleasure of law school tuition bills, Orin Kerr, a lawprof himself, explains the norm:

One of the common ways that law professors keep students mildly entertained in class is by posing hypotheticals involving their professors and the Dean. I ‘m not sure why this is so funny, but students just love it. If you teach first-year criminal law, which typically focuses heavily on homicide crimes, that means you spend a lot of time imagining your colleagues meeting horrible fates. If A kills B out of revenge, that’s just a boring hypothetical. But if the hypo involves the students’ Torts Professor killing the Dean out of revenge — or better yet, a conspiracy in which the Dean and the students’ Torts and Contract Professors agree to kill their Criminal law Professor for beer money — well, that’s serious entertainment. It may seem a bit morbid at first. But it’s the opposite, I think. Putting Professors or the Dean in the place of real criminals and real victims makes the scenario so absurd that it adds a bit of levity to what is otherwise a very depressing topic. As a result, it’s a common tool Criminal Law professors use when teaching first-year students the basic doctrines of criminal law. I suppose over the years I’ve murdered pretty much every 1st-year teacher — and certainly all my Deans — and they’ve all murdered me, too. (All during in-class hypos, mind you.)

It’s all in good fun, and intended to keep students engaged and interested.  For anyone inclined to wretch when they hear the word “blackacre,” you understand.

But law students, apparently, have both become more “sensitive” and simultaneously more assertive in complaining when something offends their delicate sensibilities.  Two students were sufficiently offended by Connell’s hypotheticals that they went to the Dean and complained.

In the description of the complaints provided to Connell, the unnamed students accuse him of using Ammons, a black woman, as the shooting victim in his class examples “at least 10 times,” Neuberger said. In one instance, a student alleged Connell used a hypothetical situation describing how he “blew her head off,” Neuberger said. His examples ranged from the gory to the intentionally absurd, according to Neuberger, such as when Connell asked students to imagine Ammons dealing drugs out of her office.

As  Orin later notes in reaction to the fact that it was two, rather than a lone, student who complained:

In my experience, law students rarely complain individually: They usually complain together, generally as a large-ish group. So if something was off, you’d expect a good-size group — maybe 5 or 10. Only two students complaining struck me as a bit suspicious.

And as for 10 instances of using the Dean in his examples,  Orin states that he kills off a few hundred people during the course of a semester, making the 10 times he murders a dean less than overwhelming.

Oh, the minefield through which a politically well-intended yet engaging professor walks these days.  How hard it will be when these whining inchoate lawyers finally make their way into a criminal courtroom, and get their delicate teacup butts smacked hard by reality.

When I was a baby lawyer, my case was called in the courtroom of a well-respected judge even though my client had yet to appear.  The judge, who happened to be black, stared at me as I shuffled my feet, looked at him with a sheepish grin and explained that the defendant had yet to arrive and no, I didn’t know why.

Then he laughed out loud, informing me that he understood completely why my client, who had been previously admonished to be in the courtroom at 9:30 in the morning unless he was dead, had failed to appear.

He’s on CP time.

Yes, that’s what the judge told me.  Not in a whisper.  Not at sidebar.  Not because we were close friends.  He said it loud and clear in an open courtroom on the record.  Do you know what that meant?

The judge wasn’t being racist.  He was dealing with some ugly reality in the trenches, and it saved my client from having a bench warrant issued and spending the rest of the case on Rikers Island.  He showed up later and was read the riot act, beaten into submission, told that his failure to be on time would result in being whipped within an inch of his life.  i don’t remember if he was on time for the next appearance, but I do remember thanking the judge for letting him go home that day and sleep in his own home with his wife and children.

That students are so hyper-vigilant and ever-ready to complain demonstrates their wonderful attention to detail, even when the details are so unclear that they’re compelled to extrapolate from their Dean’s gender and skin color that there’s racism and sexism afoot.

But if this so offends your sensibilities, so outrages you that you feel compelled to complain to your Dean, you are going to hate being a criminal defense lawyer.

Worse still is that the Widener Law School administration didn’t use this as a teachable moment for these two law students, and instead have taken Connell to task, despite his 26 years of teaching, the normalcy of using a murdered dean as an example and the basic tenet of academic freedom.  Instead, Widener chose to empower the whiners and encourage its students (and indirectly its lawprofs) to wallow in their childish sensitivity.

I understand how political correctness is used to change a culture to eliminate the vestiges of racism and sexism.  This isn’t an argument suggesting that either racism or sexism is a good thing, or even permissible.  But when your sensibilities are so delicate that you find one or the other, or both, under every rock, you’re going to have a very hard time functioning in a world where unpleasant things happen all the time, and no one wants to hear you whine about it.

And so there are two things to take from Lawrence Connell’s example: law students who are “uncomfortable” when examples don’t meet their personal approval need a good smack, and lawyers everywhere should be extremely cautious about hiring any kid out of Widener Law School.

I’ve long appreciated Jordon Furlong’s posts about the future of lawyers, seeing well down the road of technology and marketing.  It’s not that I think the picture is necessarily pretty, but nobody guaranteed that the future of the law would be rosey.

In a post at Stem Legal, Jordon’s day job, he implicitly states that blawging remains a mainstay for the future of law.  I’m down with that, since I don’t do Facebook or LinkedIn, and twitter is for those whose depth of thought is fully captured in 140 characters.  But, like most things, the devil is in the details, and this is where things get a bit shakey.  Jordon lays out the problem:

The principle is that the only reliable way for a law firm to build a lasting positive presence on the web is through the steady and timely production of relevant content: no amount of SEO gamesmanship will outperform good content that builds links with other websites. The theory is that law firms are filled with expert content producers who collectively can generate a tremendous amount of knowledge to fill the growing number of available vehicles (web pages, newsletters, blogs, Twitter, and so forth). The reality is that this is often more difficult to achieve than it sounds.

Jordon then looks for the cause:

It might be that such efforts are unbillable and therefore unattractive to busy lawyers under pressure to produce revenue. It might be that the firm has failed to sufficiently motivate and prioritize lawyer content production. Or it might simply be that lawyers want to practise law and leave the content to non-lawyer staff.

And thereafter, Jordon offers some cures:

Evangelize the benefits of content for increased prestige and prominence — if some lawyers aren’t yet sold on content’s virtues, show them how their competitors get attention and influence from content and encourage them to become “thought leaders” in their areas.

Doesn’t everybody want to be a “thought leader?”  This is where the pitch turns out to be screwball.  There remains a big strike zone for blawging problems, and yet Jordon’s pitches are low and outside.

As it’s already clear that there’s no empirical ROI to be had, legal marketers are forced to engage in Rube Goldberg-like machinations to justify their value, stringing wiggle words together, like “prestige and prominence.” to convey a warm, fuzzy and lucrative sense of worth.  But the hard gap can be found in the failure to recognize certain core problems with the pitch.

Blawging doesn’t bring in business.  Blawging doesn’t increase prestige and prominence.  Blawging doesn’t get attention or influence.  Blawging may do any or all of these things, but it doesn’t necessarily follow that if you blawg, anyone will care.  Take a gander at the thousands of abandoned blawgs, well-intended efforts, and some quite excellent, but just not worth the time or effort.  No amount of hyperbole will overcome the hard reality of empty, abandoned storefronts in the blawgosphere.

Much of the hype is in the form of silly, simplistic arguments offered by those who couldn’t cut it as lawyers so try to make a living as rainmaker coaches.  Smart lawyers laugh off these folks, seeing their tripe as another of the hundred pitches for law firm marketing bucks that come in daily.  We all get them, and that’s why computers have a delete button.

One of the nagging questions that lawyers ask is how it’s possible, given that there are a whole lot of lawyers out there, for all of them to spend their time creating content, producing an unreadable cacophany of lawyerly noise, to stand out sufficiently to make it worth their while.  Nobody wants to deal with this issue.  Obviously, if there are 10,000 blawgs floating in the ether, 9,900 aren’t going to be read.  Maybe more.  These are lousy odds.

Assuming one produces a blawg that gets some attention, how does that translate into being a “thought leader” as opposed to an embarrassment, a waste of time or the darling of readers who will never be capable of retaining your firm?  Again, no good answer.

For this reason, Jordon discusses the perpetual law firm rejoinder to blawging advocates:

From time to time, I’ve been asked (indirectly and otherwise) if in addition to advising law firms on blogging strategies and recommending an editorial direction, I would also be prepared to write the blog entries themselves. My response is always the same: I’m happy to review a draft post or brainstorm ideas, but the whole point of a blog post is that it’s personal and authentic. What is published under your name and your photo must come from you. Avoid “ghostblogging” in the law unless sincerity and trustworthiness aren’t important reputational assets to you.

While lawyers may be willing to give a blawg a go as a marketing tool, they aren’t willing to put their own time into the effort.  Maybe throwing a few bucks at some kid to write some slough on a blawg is worth the money, at least to see where it goes, but their time isn’t going to be wasted.  Jordon properly warns off ghostblogging, though his reasoning fails to capture the essence of the problem:  Put your reputation into the hands of some non-lawyer ghostblogger and you will find the quickest path to embarrassment and disgrace, maybe even some viral humiliation if it’s a slow day.

E-newsletters, sure: articles don’t even need bylines, and they can be professionally written with a lawyer’s input. Twitter feeds under the firm’s logo (but not under a lawyer’s name and photo) can and probably should be manned by professional communications staff; ditto a Facebook page. But blogs are a different animal. Bring in all the help you need to make a law firm or practice group blog timely, engaging and must-read. But the author and the voice of the blog must be the lawyer or lawyers behind it, or else all the relationship-, reputation-, and profile-enhancing aspects of blogging will be wasted, or worse.

Or maybe you’ll expend all these resources and get bupkis?

Make no mistake: your law firm needs lawyer-generated content if it hopes to compete for attention and respect on the Web.

Which leaves lawyers asking the only salient question.  Why do I want to get “attention and respect” on the web?  Until somebody comes up with a darn good answer to that question, blawging will remain a fun and enjoyable pastime for those of us who like writing stuff just in case anyone in the ether cares to read it, after which we can return to our work representing people. 

That the cottage industry of social media legal marketing exists may be troubling, but that lawyers aren’t willing to blindly swing at their pitches is encouraging.  Maybe there’s hope for lawyers yet?

Electing judges has  long been a  subject of controversy in New York.  Between the limitations on campaign speech by judicial candidates, precluding anyone running for the robe from actually saying anything that might give someone a reason to vote for them, and the utter disinterest on the part of the public as to who they vote for, usually running the party line for lack of knowledge or concern, it’s just a goofy idea.

But there is a discrete group that both cares who gets elected, and knows who they want on the bench.  Yup, that would be us lawyers, and we’re the folks most likely to get the hand with open palm when it comes to financing a campaign. 

When some judge’s campaign guy looks you in the eye, with that overly sincere squint, and asks for a contribution, there’s an irresistible urge to lay your money down.  This is even more true if the judge happens to be a Surrogate, doling out gazillions of dollars of goodies, where there is a direct connection between a lawyer’s wallet and the judge’s signature hand.

To his credit, Court of Appeals Chief Judge Jonathan Lippman is trying to change the pay to play culture by  a new initiative to preclude judges from hearing cases or handing out bennies to any lawyer who has contributed $2,500 or more to their campaign.

New York’s top court officials will bar the state’s hundreds of elected judges from hearing cases involving lawyers and others who make significant contributions to their campaigns, a move that will change the political culture of courts and transform judicial elections by removing an important incentive lawyers have for contributing.

From the judicial side of the equation, this presents a bit of a problem.  If lawyers can’t contribute, then where the heck will they get the funding to run a campaign?  They’ve already tapped mom and dad, and the neighbors and folks at the club.  After that, they’re dry, as nobody else cares.  Of course, that’s the candidates problem, not the system’s, until somebody figures out that the only people who can afford to run for judicial office are those wealthy enough to cover the nut themselves and sociopathic enough to want to be a judge at significant financial jeopardy.  Bear in mind, the pay sucks.

At Point of Law, Ted Frank has come up with a different, but very astute, problem.

There’s no question that there is a problem in New York: as the Times article notes, there have been appalling quid pro quo arrangements where judges appoint campaign contributors to lucrative estate management positions that can generate millions in fees. But, as with other Chief Judge Lippman policy proposals, I wonder whether the unintended consequences have been entirely thought through. If I’m in New York state court, and dislike the judge my case has been assigned to, can I get a new judge for the mere cost of $2,500? If there’s a twelve-judge division, can a $27,500 investment ensure that I get the one judge I’d prefer my case to be assigned to?

A bit Machiavellian?  Well, yeah, but we’re lawyers.  Machiavellian is what we do best.  The numbers may be a bit pricey for your basic DWI, but when there’s a few million dollars on the line and a judge who tends not to be particularly sympathetic to clients like yours, spreading the wealth hardly seems like a bad idea.

There are a couple of aspects to the basic Supreme Court judge shopping mall that makes this a little more difficult than it might at first appear.  First, elected Supreme Court Justices serve a 14 year term and County Court Judges serve a term of 10 years, which means that the window of opportunity isn’t always open, and may not reopen for a very long time.  Second, many of the New York City judges are really Court of Claims appointees, used to fill empty slots, who don’t run for much of anything.  They don’t need your contributions.

Of course, that doesn’t mean you won’t hear a wooshing sound every time an election rolls around, of lawyers checks being sucked into campaign coffers of judges nobody wants to appear before.  After all, when the window of opportunity slams shut, it’s too late to mail in your contribution.  Decisive action is required if you hope to never appear before a judge again.

The problem raised by Ted is one of many, and I can’t recall any significant anti-corruption initiative that doesn’t have negative unintended consequences.  That’s because this is all a band-aid on a gaping wound caused by New York’s misguided Jacksonian urge to elect judges. 

And lest we forget, despite the rampant problems revealed by both the  New York Times as well as the Commission on Judicial Conduct. New York still allows  non-lawyers to be judges in its most vulnerable courts, producing a never ending source of jokes for everyone except the poor schnook who.has to appear before them.  If it costs only $2,500 to buy your way out of these courts, it would be money well spent.

In fairness, there’s likely no course for Judge Lippman to take that won’t have problematic consequences.  At least he’s trying, and my guess is that he has weighed the problems and decided that this is the right way to be.  Thus, it might be an unintended consequence, but it’s not unanticipated. He may be counting on the fact that lawyers are cheap and business is lousy to provide a counterbalance to the potential of gaming judge shopping by contributing to their campaigns.

Whether it turns out well is another matter, but that it’s got potential to wreak a little more havoc, as Ted suggests, is clear.  That’s invariably what happens when trying to find a decent solution to fix the wrong problem.

If you can read this, thank a teacher.  On the other hand, the teacher may think you suck. Or your kids suck. Or you’re a lousy parent and your kids suck.  We know this because of Natalie Munroe.

From the PhillyBurbs :

The Central Bucks East High School English teacher who got suspended last week for complaining about her students on a blog is at it again.

And she is making no apologies for what she said – defending herself through her blog and in an interview with this newspaper Monday.

“There are serious problems with our education system today – with the way that schools and school district and students and parents take teachers who enter the education field full of life and hope and a desire to change the world and positively impact kids, and beat the life out of them and villainize them and blame them for everything – and those need to be brought to light. If this ‘scandal’ opens the door for that conversation, so be it. Let that conversation begin. Stay tuned here.”

The school district wasn’t please when it learned of Munroe’s blog posts.  Teachers have found it highly inappropriate that she was so disrespectful of her students.  She’s accused of exceptionally poor judgment.  There is clearly merit to these accusations.

Yet, if no teacher is allowed to say what she really thinks, then we only hear the happy stuff that we want to hear.  It doesn’t make the nasty stuff go away.  It merely allows us to exist in pleasant denial of reality.

So what does Munroe think of her students?

In one post, written a month after she started the blog, Munroe called her students “rude, lazy, disengaged whiners.” She fantasized in another post about telling their parents what she really thought about them.

She created a list of “canned comments” she thought teachers should be able to choose from for report cards, some of which contained profanity. The list included: “rat-like,” “dresses like a streetwalker,” “frightfully dim,” and “whiny, simpering grade-grubber with an unrealistically high perception of own ability level.”

Ouch.  And you thought I was the only one willing to be so blunt.

Munroe explains that this doesn’t mean that every student is a “rude, lazy, disengaged whiner,” just as not every millennial is a Slackoisie. 

Munroe says she does not hate her students, and actually likes some of them.

“But the fact remains that every year, more and more, students are coming in less willing to work, to think, to cooperate. These are the students I was complaining about in my blog.

But what parent wouldn’t be happier to hear that junior is a pleasure to have in class?  The rub is that the truth isn’t always happy.  By the time students learn that they aren’t the next best thing since sliced bread, which will likely come when they are rejected or fired from their first job for gross incompetence and a lousy attitude,

Parents are astounded.  How could it be that Muffy isn’t beloved, immediately made CEO and given the big corner office?  She’s a wonderful girl.  All her teachers said so.  Well, yeah, they did, but the only reason they kept shuffling Muffy up through the ranks was to get her out of their class and spare themselves an awkward meeting with you, Mom. 

One could well quibble with Munroe’s presentation of her issues, given that they were brutally honest and straightforward.  There aren’t too many folks around these days who want to hear the unvarnished truth.  Just a little sugar-coating, please.  Or as Mary Poppins says, just a spoonful of sugar helps the medicine go down.  But Munroe didn’t direct her invective at anyone in particular.  There was no reason why any parent should take it personally, unless they felt the pinch of a too-tight fitting show.

There are very strong incentives for both school boards and teachers to make parents happy.  Parents vote for school budgets, and school budgets fund teacher contracts.  Piss off parents and the entire school financing system collapses.  And with the possible exception of cop, there’s no better gig out there today than being a public school teacher.  It’s sweet.

And if it means the Buffy and Jody make it to adulthood as “rude lazy disengaged whiners,” so what?  As long as our beloved students, our beloved parents, are allowed to bask in the glow of sweet teacher comments about how wonderful they are.  Even if they aren’t.

As for Natalie Munroe, the chances of her collecting her teacher pension are growing increasingly slimmer.    Not because she’s wrong, but because truth has its consequences.

While there are a good number of Harris County prosecutors who don’t care for  Houston criminal defense lawyer Mark Bennett’s calling them out when they deserve to be called out, at least one thought he was the right lawyer to see an internal email.  Mark knew exactly what to do with it, and immediately post it on his blawg:

We are now six weeks into the new year and I wanted to announce some Trial Competitions.

Vehicular Crimes Section Award
The first ADA to try 10 DWI jury trials in 2011 will win this award.  The prize….you will get to sit second chair on an Intoxication Manslaughter or Felony Murder case with a prosecutor in the Vehicular Crimes Section.  You will be involved in trial preparation, take witnesses, and participate in the trial.

Trial Dawg Award
The first ADA to try 12 jury trials in 2011 will win this award.  The prize… you will get to sit second chair on a murder case with a felony chief level prosecutor from either the Trial Bureau or one of the specialized divisions, such as Major Offenders.  The trial record does not matter, except you have to be above 50 %.

Trial Court Award
If a court tries and completes THREE jury trials in a single week, the prosecutors in that court can comp. out by lunch time the following Friday.  It is encouraged that the members of the court do something together….lunch, movie, bowling.  Who will cover their court in their absence…keep reading.  The court (that has a 2 and a 3) that does not try any cases the same week the winning court(s) tries three cases, will have to cover the duties for the winning court.  If all courts , that have a 2 and a 3, try cases it will be up to Justin, Rachel, and I to cover.  We have excluded five courts from this competition for equity purposes.

The purpose of these competitions is to reward folks who go to trial and achieve justice.  In addition, hopefully it will be fun for all.  Those who have already tried multiple cases already this year have a head start on others.  Let the friendly competition begin….

There’s nothing like some spirited competition amongst the righteous to boost morale and get those prosecutorial juices flowing.  And really, shouldn’t it be fun?  We hear all the time how happy employees are good employees, and what could make an assistant happier than playing pin the crime on someone?

For good measure, and maybe just in case the email found its way to Mark, it concluded with these warm and fuzzy words.

And it goes without saying, what we do is always about justice.  Hopefully this will allow us to have some fun while we strive to achieve it…..

There’s only one problem with this bow to “justice.”  It’s inconsistent with everything else in the email. 

Perhaps the most critical element of the prosecutorial function is the exercise of discretion.  This spans the decision to charge, and what to charge, to the decision to offer an appropriate plea or go to trial.  The system expects and depends on prosecutors to exercise their discretion with no interest, no concern, no incentive, no benefit, other than to do justice.

Or win a prize!  Woo hoo!

Consider what becomes of the defendant who is charged for the very first time, and against whom the evidence is overwhelming.  Discretion suggests that he be offered a plea that would both deter him from committing another offense, but not one that will destroy his life or needlessly put him in prison.  But if the prosecutor happens to need just one more trial, just one more conviction, for the win, this is the case to try.

And it’s easy enough to shrug it all off.  After all, the prosecutor didn’t make the guy commit the crime.  The prosecutor didn’t legislate the punishment that is clearly excessive in this case.  The prosecutor isn’t at fault for merely failing to cut the guy a break.  Since when does a criminal deserve a break?

Plus, he can win a prize!  Woo hoo!

There will, no doubt, be prosecutors in Harris County whose conscience won’t allow them to put their winning a prize ahead of the appropriate exercise of discretion.  There will be those who remember that these are flesh and blood people who live with the decision they make, whether to offer an appropriate plea or force the case to trial.  They will think of their brothers and mothers, their cousins and nephews, before withholding a plea offer because they need a few more trials this week.

To win a prize!  Woo hoo!

There will likely be reaction to Bennett’s having obtained this internal email and posting it on the internet for all to see, including this New York lawyer who has no say in how the fine prosecutors in Harris County boost the morale of their assistants and reward them for trying more cases than the next one.  How dare Bennett reveal their secrets?  Doesn’t Bennett realize that this is how all prosecution offices are run, with incentives to get assistants to work harder, do better, win more.  And do justice?

The email reveals that there is no prize for the prosecutor who does the most or the best “justice.”  Then again, there would be no way to tell who the winner is.

So what if everybody knows.  There’s a law.  The law says what it requires.  How hard is that to understand?

Section 103.001(2)(b) is abundantly clear that only a person who “has been granted relief on the basis of
actual innocence of the crime for which the person was sentenced” is entitled to compensation.  When applying for compensation, the person must include “a verified copy of the pardon or court order
justifying the application for compensation” as well as “a certification of the claimant’s actual innocence
of the crime for which the claimant was sentenced that is signed by the attorney representing the state in the prosecution of felonies in the county in which the sentence was rendered.”

How hard is that to grasp?  And why not, since we’re talking here about compensating the wrongfully imprisoned, giving them a big old check with lots of zeroes.  The State of Texas isn’t going to hand them out to just anyone, nor should it.  These checks are directed at a very small, very discrete group:  The Actually Innocent.

By anyone’s account, Anthony Graves was a member of that small club.  After 18 years in prison, he was due $1.4 million, not quite compensation if you crunch the numbers, but something to get him back on his feet.  That he fit the criteria isn’t just from a criminal defense lawyer view, but the position of the special prosecutor assigned to retry him after the reversal of his conviction. From the Houston Chronicle :

“Who would have envisioned this kind of situation happening?” Siegler said.

“I’m willing to testify to the fact that we believe he’s innocent,” she said. “I’ve signed an affidavit. I’m not sure what we are supposed to do to make it happen.”

The letter from the comptroller’s office said the court order must indicate “on its face” that it was granted “on the claimant’s actual innocence.” Comptroller’s office spokesman R.J. Silva said the law did not allow for special consideration of the facts in Graves’ case.

Kelly Siegler, the special prosecutor who recommended dropping the charges against Graves, said that the words “actual innocence” are not commonly used in the courtroom. She said the compensation law likely was designed for cases involving innocence proven through DNA, not a case thrown out by prosecutors after a reexamination of the evidence.

The Comptroller ruled that the innocence compensation statute, which in the interest of full disclosure I helped lobby for in 2009 on behalf of the Innocence Project of Texas, doesn’t cover Graves’ unique circumstances. The statute was designed to address the 21st century rise of DNA exonerations, while Graves’ case doesn’t fit that narrow procedural mold. And, the reality is the language was a compromise with DAs and law enforcement interests who didn’t want to expand the definition of “exoneree” too broadly, which is the practical reason for the disconnect between the statute language and courtroom procedure that Scott Greenfield discusses. Still, it’d be a shame for him to have to resort to some massive federal civil rights lawsuit when the Governor agrees that Graves was falsely convicted and “deserves” compensation.