Developing a viable defense to serious charges is a criminal defense lawyer’s stock in trade.  Charges don’t get any more serious than murder, calling for the hardest, deepest, most serious effort possible.  Kentucky criminal defense lawyer Shannon Sexton must have been up all night pondering his defense of Woody Will Smith.

From Salon :

A Kentucky man accused of strangling his wife is poised to claim excessive caffeine from sodas, energy drinks and diet pills left him so mentally unstable he couldn’t have knowingly killed her, his lawyer has notified a court.

Woody Will Smith, 33, is scheduled for trial starting Monday on a murder charge in the May 2009 death of Amanda Hornsby-Smith, 28.

Defense attorney Shannon Sexton filed notice with the Newport court of plans to argue his client ingested so much caffeine in the days leading up to the killing that it rendered him temporarily insane — unable even to form the intent of committing a crime.

Sound a bit, well, ridiculous?  Well, consider what the DSM-IV has to say about caffeine overdose:

The Diagnostic and Statistical Manual of Mental Disorders — published by the American Psychiatric Association showing standard criteria for the classification of mental disorders — defines overdose as more than 300 mg. That’s about three cups of coffee.

That applies, however, to caffeine induced insomnia, as opposed to “temporary insanity” as claimed here.  At Psychology Today, however, the number of cups of coffee came up slightly higher.

In humans, lethal toxicity is estimated at between 150 and 200 mg/kg, meaning that an average adult would have to consume between 80 and 100 cups of coffee in a very short period of time to induce extreme badness.

Murder would seem to fit within the definition of “extreme badness,” though it’s not entirely clear whether extreme badness is an accepted description by the DSM-IV.

The defense has an expert. psychologist  Robert Noelker, prepared to testify that Smith, who claims not to remember killing his wife, was unable to form the requisite intent to commit the crime of murder.

Noelker said he determined Smith was open to “brief psychosis” brought on by sleep deprivation, which was caused by the heavy ingestion of diet pills and caffeine in the weeks leading up to his wife’s death.

“It is my opinion that this disorder was the direct result of psychosis due to severe insomnia,” Noelker wrote in a report filed in Smith’s case. Noelker is expected to be called as a defense witness.

The prosecution contends that its testing failed to show that Smith had any “amphetamine-type substances” in his system shortly after his arrest.

The defense is an easy one to ridicule, considering that we’re a nation of sleep-deprived, caffeine swillers, who nonetheless manage to navigate our days without killing our wives (or husbands, as the case may be).  Perhaps Dr. Noelker is simply another guy with letters after his name willing to say anything for a buck.  Like the failed Twinkie Defense, this may go down in the annals of criminal law as another improbable attempt to find any excuse to get a killer off.

On the other hand, in a somewhat analogous situation, it worked for Daniel Noble in a vehicular assault case in Idaho.

Medical tests in the Noble case resulted in a diagnosis of a rare form of bipolar disorder — triggered by heavy consumption of caffeine, Moorer said.

That evidence went before a judge, who dismissed the charges after concluding Noble was unable to form the mental intent to commit a crime.

Whether or not the defense is viable in Smith’s trial will soon be seen, and the odds aren’t good.  That said, you can’t fault Shannon Sexton for coming up with an imaginative, and not entirely impossible, defense.  And sometimes the bizarre and implausible may in fact be true. 

Update:  It appears that Sexton had a change of heart (I might have said “change of mind,” but that doesn’t seem appropriate in this case).

A lawyer for Woody Will Smith said his client made false confessions because he suffered a sleep-deprived psychosis. There was no mention during the first day of trial in Campbell Circuit Court that Smith was allegedly taking massive amounts of caffeine-laced pills and the energy drink No Fear to stay awake.

He also informed the jury that the reason for Smith’s sleeplessness was that he was up all night worrying that his wife was having an affair and was about to leave him.  This might not be the best thing to concede, by the way, in a trial for murdering a wife.

H/T Kevin Underhill, who, I suspect, is a bit less sanguine about the merits of this defense.

One of the nagging dilemmas in the courtroom is the perpetuation of junk science and investigative methodologies that lead to wrongful convictions.  Even as exonerations keep coming, the same mistakes are repeated, presumptively leading to yet more wrongful convictions.  For those who say that knowing the problem is half the solution, it’s not looking good.

A study by the National Science Foundation, however, offers some insight into why the laws of physics seem to no longer apply in the courtroom.  From the Forensic Psychologist, via a twit by the Jury Expert :

As it turns out, no matter how knowledgeable you are, or how great your credentials, judges or jurors may disbelieve the scientific evidence you are presenting if it does not match their social values.

That’s no big surprise, given decades of social psychology research into cognitive dissonance. But a study funded by the National Science Foundation and scheduled for publication in the Journal of Risk Research sheds new light on why “scientific consensus” fails to persuade.

Study participants were much more likely to see a scientist with elite credentials as an “expert” on such culturally contested issues as global warming, gun control, and the risks of nuclear waste disposal if the expert’s position matched the participant’s own political leanings.

It appears that the concept of “expert” has been diluted to the point where it’s no longer about education and experience, but about agreeing with political view and social values.  This appears to incorporate a number of factors, ranging from confirmation bias to the pervasive belief that any fool can be an expert these days, diminishing the value of scientific study as evidence of anything and allowing lay-people (in this case, meant to mean anyone lacking the education and experience of the proffered expert) to simply chose to ignore expertise with which they disagree.

This is, on the one had, a wonderful development, and on the other hand, a nightmare. 

For decades, “experts” have taken the stand, freshly scrubbed and with sufficient credentials to give the appearance of believability, and have testified as to sheer and utter nonsense.  Bite marks?  Comparative bullet lead analysis?  The Black Box?  The Twinkie defense?  Even such mainstays as fingerprints, long believed to be above reproach, have proven flawed.  While some remain widely accepted despite widespread recognition that they’re unreliable (thanks to the judicial gift of precedence), at least they are now subject to challenge.

The cost, however, is the realization that science isn’t, well, quite as scientific as we hope when it comes to the good as well as the bad.  Once the wall of respect toward science is torn down, science becomes as much a matter of social acceptance as anything else.  We adopt the science that comports with our beliefs and reject the science that doesn’t, as if science requires our personal approval to be accurate and worthy of recognition.

And that’s the downside for the defense.  As the study goes on to show, the “atomization” of information, meaning that people now get their insight from select perspectives like Rush Limbaugh and Fox News, or on the other side, Rachel Maddow and Comedy Central, as opposed to years ago when network news and the local paper were the only games in town, we no longer share a common source of information.

Unfortunately, trends in public consumption of news may make this task increasingly difficult. Although people are spending at least as much time as ever on the news, they are less likely to read the daily newspaper and more likely to get their information from television and online sources including, most recently, their telephones, according to an informative new survey by the Pew Research Center for the People and the Press. This decreases our common knowledge base and makes it easier for ideologically slanted information sources to influence public opinion.

It’s like putting people on the jury who speak entirely different languages, although they seem to use the same words to do so.  It’s thus a two part problem, based on social and political values derived from disparate sources which are then used to filter scientific evidence, the worth of which has been diminished by the acknowledgement that we’ve been fed junk for science for far too long, and that science, therefore, is no longer inherently reliable.  We accept it only if it comports with our personal views.

In an interesting analysis of the mainstreaming of extremism, alternative journalist Arun Gupta points out the ease with which political pundits for whom facts are irrelevant can indoctrinate the uninformed. A respondent committed to rational scientific inquiry becomes like a dog chasing its tail: In the time it takes to deconstruct one fraudulent news story, the pundits have concocted five more.

In support, the post notes Scott Lilienfeld’s  50 great Myths of Popular Psychology, a great read if you haven’t already had the pleasure, about popularly held notions that have been completely debunked, yet persist.  Many of these apply directly to criminal law and trials, and are specifically the sort of crap we tacitly confront in efforts to persuade very nice jurors every day.

So while the public’s disregard for expertise may help in breaking down the junk science wall, it is similarly likely to block efforts to gain acceptance for new scientific efforts as well, such as the fallibility of eyewitness identification.  For those of us who are frustrated by the seeming inability of the public to let go of myths in favor of science, this study brings at least a better understanding of what we’re up against. 

To some extent, our problem is the flip side of our success in debunking old junk science in the courtroom.  And to some extent, the political and social polarization of society, dictating the sources of information to which people turn, is a hurdle that may prevent us from ever selling new science to a crowd that has already decided it’s not buying.

From across the pond, a peculiar story of compensable error.

The Crown Prosecution Service has agreed to pay £16,000 compensation to a woman over the handling of a serious sexual assault allegation that breached her human rights, it has been reported.

The woman, whose name is given as Josephine, was the alleged victim of a “serious sexual assault,” as opposed I suppose to the unserious sort of sexual assault.  The prosecution didn’t work out as planned.

Josephine, who was in her twenties at the time of the assault, said she had been assured that she would be able to give evidence from behind a screen. When this was not the case she was forced to face the man she had accused of serious sexual assault.

While in the witness box she let slip a detail about the man’s past. The prejudicial information led to the trial being halted.

A letter from a case worker later explained that there would be no retrial and that reportedly blamed the victim for the initial collapse of the trial describing her evidence as “implausible”.

Putting aside the screen, concealing the accuser from the accused so that she need not face the person whose life is at risk, and putting aside her “slip” about the man’s past, muddling the evidence of this alleged crime with the defendant’s propensity to be a criminal, the bottom line was that the prosecution decided against a retrial because her testimony was “implausible”.  That can happen, you know.  Even when it’s something as volatile as a serious sexual assault, sometimes alleged victims don’t come off well.  Sometimes, they aren’t even real victims.

But not this time.

The CPS acknowledged that Josephine’s human rights had been breached in the handling of the case.

Her lawyer, Tony Murphy, said: “This case shines a light on how the Crown Prosecution Service prosecute crimes of sexual violence and it reveals an alarming lack of will and skill on behalf of the prosecutors in this case.

Not only did Josephine get an apology from the CPS, but she got £16,000 to boot.  Whether that salves the pain of a serious sexual assault is unknown, but it’s better than a nasty letter and a cold shoulder.

What’s remarkable isn’t the “alarming lack of will and skill” (a nice sound bite, Tony), but that the Crown Prosecution Service acknowledged this to be a violation of Josephine’s “human rights.”  Not merely acknowledged, but a human right with a price tag.

Contrast this with the failing here of compensable rights.  Not some amorphous “human rights,” but the ones enumerated in our Constitution.  There is the woman giving birth while shackled to her hospital bed,  $1.  Should the cops burst into your home to search without a warrant, or even with a warrant but they turned left in the hallway rather than right an broke down your door instead of the drug dealer across the hall.  Heck, you would be lucky to get your door fixed.

It’s unclear what this means.  Is the United Kingdom more sensitive to rights than the United States?  Do they realize that a right without a remedy is worthless?  Or is this a victim’s rights thing, as compared to the rights of a defendant, who won’t get squat should his rights be violated?  After all, the alleged victim did let “slip” a nasty detail about the defendant’s past, sufficient to cause a mistrial, and there’s no word here about his being paid for the mistake, even though he was put through the halted trial.

Regardless of whether this sensitivity to rights reflects a broader appreciation of a government’s responsibility toward the groundlings who suffer their deprivation, or is a one-sided preference for the chosen few, it stands in rather stark contrast to what we can expect here.  Regardless of victim or defendant, the violation of rights isn’t likely to get an apology or a voluntary check out of any American prosecutor.  Maybe this is just equal justice, but on this side of the pond, everybody can expect to get screwed.

H/T Dissent

California’s Proposition 19 was destined to be a contentious one from the start.  Entitled the “Regulate, Control and Tax Cannabis Act of 2010,” it would legalize personal use of marijuana.  Whether your for it or against it, chances are that your position is based on a sincere belief that it’s the right/wrong thing to do.  That isn’t the case for everyone.

Via Turley, it turns out that there’s internecine warfare abrewing between the forces of intoxication.

The California Beer and Beverage Distributors contributed $10,000 to the No on Prop. 19 campaign, also known as “Public Safety First.” The industry has also spent considerable funds to fight other pot-related legal change, including opposition to Proposition 5, the Nonviolent Offender Rehabilitation Act (NORA), which attempted to reduce marijuana possession from a misdemeanor to an infraction.

The obvious fear is that pot will drain away beer drinkers, and perhaps a couple of chard guys, thus reducing the post-temperance take.  That’s bad for business, if you happen to be a beverage distributor.

Much of the discussion over at Turley’s is about the relative merit of pot over booze.  I leave that to others to discuss, as it hardly seems worth the effort.  What does strike me as significant is that few give much thought to the players and agendas hiding behind the platitudes, and too often the lies, that influence public opinion.

When you’re involved in a particular battle, the likelihood is that you will gain a level of familiarity that enables you to recognize that things aren’t always what they appear to be on the surface.  We think others, people of good conscience and intelligence, will naturally understand it as well.  We assume they know about it, and indeed they might, and from this we assume they understand it. 

As to Prop. 19, it comes as no shock that the booze industry wants to keep its monopoly on legal intoxicants.  That’s what they sell, and any competing product is likely to cut into their products.  The issue isn’t beer or pot, but Mercedes Benzes and Porsches, the ones the distributors will buy with the money they make from selling beer.  Some may argue that pot smokers get the munchies, and need to wash it down with something, meaning an even greater need for beer.  The beverage distributors aren’t counting on it working that way.  No matter, they’ve picked their side.

The other day, when I asserted that the public’s awareness of the flaws in our criminal justice system was inadequate, Lee Stonum responded in a comment.

I’d disagree that the general public is not more aware of the flaws in our justice system than they were a decade ago. Panels will routinely acknowledge having read about problems with ID testimony, forensic analysis, false confessions. As you and I noted recently, the herculean task is getting them to believe its happened in THIS individual case. That is exceedingly hard to do.

While we both agree that the task of getting people to believe that, “in THIS individual case,” a problem exists is the critical task, Lee gives people more credit than I do.  They may hear the words, watch the video, but it doesn’t sink into their consciousness sufficiently for them to think about it.  When they don’t think about it, they don’t understand that subtext or ramifications.  They don’t question the underlying agendas.  They hear only the platitude, the sound bite, the most superficial aspect of the problem.  From there, an opinion is formed.

On its surface Prop. 19 seems like the basic conflict between the forces of good and evil, stoners versus law and order types who watched Reefer Madness one time too many.  As should be apparent from the beverage distributors putting their money where their profits are, there are forces in opposition which have nothing to do with whether marijuana smoking is, in itself, good or bad, healthy or dangerous.  There are others as well with interests at stake, like prison guards and probation officers, the guys who make the Breathalyzer 5000 and the Ignition Interlock Device.  Even criminal defense lawyers have a horse in the race.

If you’re waiting for someone to tell you about all the hidden agendas, all the nice folks who speak sweetly to you and tell you how they’re only thinking of your welfare, you may be disappointed.  There are plenty of folks out there happy to spoonfeed us, but what we’re getting isn’t always good for our health.  In fact, most of what we’re fed is exactly the stuff we shouldn’t be digesting.  

It’s up to each of us to take responsibility for ourselves to think these things through, to question and wonder about it.  It’s hard work, thinking, and it makes people’s heads hurt.  Still, without it, we’re just pawns in someone else’s game.

I’ve known more than my share of guys and gals who sold marijuana.  Most were very likeable people.  They were not, however, spiritually motivated, but just people who sold an intoxicant because they wanted to make money.  We talked long ago about the possibility of pot being legalized, sold at the corner store just like beer, and they hated the idea.  It was the death of their business, as some corporation would seize control of their street corner within seconds and they would never be able to pay the mortgage on their Chalet.  

There are all sorts of agendas behind the issues that matter to you.  If you don’t think about it, chances are you will never know what they are and who is manipulating your opinion.

A public service to Pace Law School Law Review:

The Editors of the Pace Law Review invite proposals from scholars and practitioners for our third annual issue on New York law that is slated for publication in Spring 2011. In the past, this book has examined a wide range of topics in New York law, including education, immigration, land use, and criminal procedure. The Review is most interested in timely pieces that comment on recently decided cases, areas of New York law that are quickly evolving, and issues that broadly impact the people of the State.

Please submit proposals of no more than 500 words to [email protected] by October 15, 2010.  We welcome proposals for articles, essays, and book reviews.  All proposals should include the author’s name, title, institutional affiliation, contact information, and should concern issues related to the subject-matter described above.  Book review proposals should also include: (a) the title and publication date of the book proposed for review; (b) a description of the importance of the book to the general topic; and (c) any other information relevant to the book or proposed review (e.g. the reviewer’s expertise or any relationship with the author).  Authors are also welcome, but not required, to submit a CV.  We expect to make publication offers by October 31, 2010. 

Completed manuscripts will be due December 1, 2010.

Best regards,

James Healy and Nicholas Tapert
Executive Articles Editors
Pace Law Review

I wonder if this means that I get one free article?  Nah.  If you’ve ever had the urge to write for a law review, this could be your opportunity.  If they weren’t looking for practitioners, they wouldn’t have asked me to post this call for authors.  Go for it.

I received your email providing the details of your personal tragedy and the outrageous conduct of the government.  It was very long and contained many misspellings, but I read it as thoroughly as I  could.  As soon as I have a chance, I will look into this very important matter for you, and I will get back to you if and when I have a meaningful answer.  No need to send me any more emails about it. 

And yes, this message is for you and no one else.  If you can read this (which you obviously can since you’re reading this), that’s because it’s my personal and confidential message to you.  No one but you can read this, and you obviously know who you are.  It’s a special secret part of my blogging program that allows me to send messages that only you can read.  Make sure you don’t tell anyone about this, or it won’t be a secret anymore.

So no need to send me any more emails about the situation.  I may never get an answer, in which case I won’t waste your time by sending you any emails in response, but if I do, I will send you an email right away.  There’s no reason to send me emails asking if I have a solution to your problem.  If I do, I will let you know.

No really, no more emails because it’s taking up time that could otherwise be used to look into your problem.  And if you find someone else you think would be more helpful, please don’t feel as if my feelings will be hurt if you turn your attention to them.  It’s fine with me, as you should do whatever is best for you.  But no more emails.  Please.

There’s no one interested in the criminal justice system who hasn’t heard the name Barry Scheck, a law professor at Cardozo Law School who was a co-founder of the Innocence Project.  Peter Neufeld, for reasons that elude me, isn’t as well known, but just as responsible.  The point of the Innocence Project was to question dubious old convictions with DNA evidence available, test it and make sure they didn’t convict the wrong guys.

The thesis justifying the Innocence Project is that there were innocent people convicted.  Barry and Peter proved the thesis over and over.  The original Innocence Project now has plenty of state and local counterparts, adding more laboring oars to the rowing.  In Mississippi, they just did it again.  From the New York Times :

Mr. Bivens, 59, and Bobby Ray Dixon, 53, two men who were serving life sentences, were exonerated by a judge on Thursday morning, their guilty pleas to the charge of murder erased. The judge said it was likely that another man, Larry Ruffin, would soon be cleared for the same murder.

There was no special hurry in his case. Mr. Ruffin died in prison eight years ago.

Notice that Bivens and Dixon weren’t convicted after trial, but pleaded guilty.  There were confessions galore, and they even cooperated by testifying against Ruffin, who also confessed, then recanted, in the rape of Evan Gail Patterson in front of her 4 year old son, after which her throat was cut.  The only problem is that DNA showed that it was done by Andrew Harris, who was serving a life sentence for another rape.

Ashby Jones at the WSJ Law Blog makes an astute observation:

Is it just us, or does it seem that tales of the wrongfully-accused-getting-released-from-prison are popping up more and more frequently?

While it’s wrongfully convicted, the point is well taken.  It’s past 250 and still going strong, but it has also begun to lose impact.  That’s what happens with familiarity.  The shock we felt in the beginning gives way to complacency.  Rather than headlines, exonerations become blurbs.  Soon, no mention will be made at all.  It will become mundane and unworthy of valuable media territory.

In course of the work of the Innocence Projects, we came to realize many things: That the causes of false convictions were junk science, eyewitness identification and false confessions.  Then there were lying, scheming prosecutors, and lazy, incompetent defense lawyers.  We learned that judges go with the flow, neither watching the gate nor overseeing the process to assure its integrity. 

The most significant lesson learned was that we could undo the damage if there was DNA to be had.  If not, prosecutions, whether ending in a conviction after trial or plea, were untouchable, though they bore all the same burdens.  Despite all we’ve learned, there has been almost no institutional recognition of how poorly we do in distinguishing between guilty and innocent (or less innocent than charged), or providing a fair trial.

This particular case, as horrific as they come, provides an example of how even the most trusted and conclusive of methods for determining guilt, the plea, reflects as much a failure of the system as a bad ID or coerced confession.  Bivens and Dixon copped a plea to avoid the death penalty.  A fine day’s work by all involved, but for that one unfortunate detail, that they were innocent.

Having no idea what these two men discussed with their lawyers before deciding what to do, let’s assume that they were told that their confessions left them defenseless and their option was conviction with death or, under the best of circumstances, conviction with life.  A plea to life makes perfect sense.  Under these circumstances, who can blame them for the choice.

It would have been impossible to know, back in 1980, that DNA evidence would serve to eventually exonerate them.  Nor would they have suspected that two New Yorkers, Barry and Peter, would found a gang dedicated to using that DNA to clear the names of the wrongfully convicted.  Without omniscience, the case was handled as well as can be expected.

The problem is that nothing has changed.  Sure, we’ve learned tons.  The National Academy of Science has ripped junk science and the mechanisms that support and allow it in the courtroom, yet it remains as prevalent as ever.  We know that eyewitness identification is the most potent of evidence, and yet inherently unreliable.  False confessions are every bit as real as true confessions, but no one really cares.  And of course, there are still bad prosecutors, bad defense lawyers and bad judges.

One of the great hopes was that the public, the jury pool, would become more sophisticated, better educated, by the work of the Innocence Project, realizing that the system is far from perfect and extrapolating from DNA exonerations that the same flaws exist in non-DNA cases, but without a means to prove them wrong.  There’s no indication of this happening.

Even readers here, far more likely to be aware of, concerned about, attuned to the flawed criminal justice system, might have missed the news of Biven’s and Dixon’s exoneration.  After the first 250, what’s another exoneration?  And ordinary injustice goes on as if nothing has happened.

That’s how the letter always begins.  And when I see that opening phrase, I know I’m about to get screwed.  Again.

This time it was a love note from Cablevision, the corporation that lets Jimmy Dolan be generous to his friends.  To better serve me, they were requiring a set top digital box for any television on which I wanted to actually see a picture.  The FCC, in its infinite wisdom, decided a while back to require television broadcasters and cable providers to digitize everything to free bandwidth so that early adopters could use their iPads and smartyphones to watch Three’s Company reruns whenever they were bored.  Progress.

The letter wasn’t exactly clear, mostly because it was written in marketerese, telling me how I would have a more wonderful life, grow taller and more handsome if I only got a set top box.  Being quite satisfied with how things were going without the box, I assumed that I didn’t need one.  That lasted until the other morning, when I put on the TV to see the news and instead got a blue screen informing me that Jimmy Dolan was laughing at me.

I got the message, and off I went to the Cablevision store.  Apparently, Jimmy was doing an awful lot of laughing that day, as the line was out the door.  People had spouses and relatives bring them food so they didn’t die of starvation while waiting on the line.  There was an armored car outside, a very bad omen for me.

The very sweet, overworked girl at the counter told me that I was “entitled” to gaggle of boxes, free for a year.  Free is usually such a nice word, but never when uttered by an employee of Cablevision, even a sweet one.  Free is the prelude to “we’re going to charge you once your year is up a fee for the rest of your natural life.”  It’s the lube, the Santorum, that precedes the pain.

My relationship to television, and hence to cable, is a curious one.  I turn it on when I’m curious.  Then I usually fall asleep.  Since I like sleep, it serves a valuable purpose in my life.  There are also televisions around the house for others to watch, including the occasional guests who invited themselves to stay for periods that make fish smell good.  The guestroom televisions don’t get used very often, but it’s important that they’re there so the guests don’t spend their time watching with me and preventing me from my much needed sleep.

But when my year ends, there will be a bill to pay.  The cost is $6.95 at the moment, though when Jimmy realizes that for an extra quarter per month per box, he can rule the world, there’s a good chance the price will go up.  Either way, it’s a cost that will be levied for what I already had working just fine.  To better serve you.

Since coming to the realization that Jimmy had made me his butt boy against my will, I sought alternatives to paying for Cablevision’s box (plus remote, even though you can’t use one without the other).  I considered whether a digital to analog converter would do the trick.  Nope, they told me at the store.  Tried and failed. 

I googled for an answer, and google came up empty.  There was a thread that discussed getting a new television with a QAM tuner, which merely needed a cable card to make the pictures flow, but that struck me as even dumber than getting cable boxes, since my TVs all work just fine, as they have since 1975 when I did away with the rabbit ears.  That was when I first signed up for cable, which promised commercial free television.  Remember that?

It’s hard to imagine that some entrepreneurial soul hasn’t come up with a way that I can buy a box from them and beat Jimmy Dolan out of worldwide hegemony.  If you’ve got an answer, I’ve got a little less than a year before charges start appearing on my bill.  But don’t tell me unless you really have an answer.  I couldn’t bear another Cablevision disappointment.

Her story was atrocious.

Shawanna Nelson, a prisoner at the McPherson Unit in Newport, Arkansas, had been in labor for more than 12 hours when she arrived at the Newport Hospital on Sept. 20, 2003. Nelson, whose legs were shackled together and who had been given nothing stronger than an over-the-counter painkiller all day, begged, according to court papers, to have the shackles removed.

Nelson (now Lumsey) was a sentenced prisoner, and despite laws forbidding the shackling of prisoners giving birth in some states, Arkansas wasn’t one of them.  But lest she abscond from custody in the middle of birth to avoid her sentence for writing bad checks, the shackles remained on, impeding her delivery and receipt of proper medical care. 

Lumsey, as well as her doctor and two nurses, requested that the shackles be removed.  Her guard said “nope”.  The guard ultimately removed the shackles at the very end of delivery, at the doctor’s insistence, but Lumsey decided to challenge her treatment, found a lawyer willing to take up her cause and sued. 

Lumsey won.  Woo hoo!

Via Legal Blog Watch :
If you successfully represent a female prison inmate who was forced to give birth while shackled, in her civil rights claim against the state, you might expect to have your fees awarded as part of the judgment.

Apparently, you’d be disappointed. Shawanna Nelson Lumsey won her lawsuit against the Arkansas Department of Corrections, but was awarded only nominal damages of $1. And because the Prison Litigation Reform Act caps fee awards at 150 percent of damages, her attorneys were entitled to only $1.50, rather than the $140,000 they had requested. Sucktown.

No, I have no clue what “sucktown” means either, but I suspect it has much to do with the disappointment felt by the lawyer who fought and won at trial at the fee. 

With the constant barrage of instances of people’s rights being violated appearing in blogs, this one included, we similarly hear expressions of outrage and demands that someone should pay.  That rights are violated isn’t in issue.  That it’s outrageous isn’t in issue.  The problem is the “someone should pay” part.  You see, a right without a remedy is meaningless.  If there is no consequence for the violation of rights, then there’s no right.

What shocks people is that lawyers, those men and women who have dedicated their lives to the law, protection of the downtrodden and defense of the Constitution, too often lack much interest in taking up their cause when they suffer the denigration of their rights.  In some instances, it’s because their rights weren’t really violated, even though they think otherwise.  But in many, it’s because there’s no money to be had for the lawyers.  Whether for lack of compensable damages (that’s right, you don’t get a billion dollars just because they made you really, really angry) or lack of entitlement to legal fees, the bottom line is that nobody wants to be your freebie hero.

Is this adding insult to injury?  Probably, but it’s certainly understandable.  For inexplicable reasons, people view lawyers (and doctors, for that matter) as flying above the fray of such mundane concerns as earning a living.  We’re all understood to be wealthier than anyone has a right to be, and thus can afford to do a good deed whenever someone comes knocking.  We talk about rights and outrages all the time, so is it too much to expect us to put our money where our mouth is?

The answer is clearly yes.  As much as lawyers might love this fantasy to be real, where they can spend their days doing good for others and not have to concern themselves with such banal matters as dirty lucre, the sad fact of life is that lawyers have to pay for Pampers just like everyone else.  Landlords don’t give lawyers fancy offices because they like them, and restaurants give lawyers a check at the end of the meal just like you. 

But what about you?  What about the vindication of your rights?  Who will stand up for you when your rights have been violated?  Yeah, that’s a problem.  You see, there are a lot of you out there with rights being violated, or at least rights you think are being violated.  They call all the time, telling lawyers about their problems.  They want to meet, to discuss, to express their anger, frustration and outrage.  We understand, but we’ve heard it before. 

Hard as it may be to imagine, you aren’t the first.  You just weren’t paying attention when it happened to all those people before you, because it didn’t affect your life.  You went to work like usual, did your job and picked up your paycheck at the end of the week, and life was good.  Well, maybe not good, but as good as it gets.  All the while, someone else was having their rights violated, but you were too busy with your own life to notice.  We knew because we got the call.

Now, however, you are the person aggrieved.  Now, it’s important because it happened to you and made your life a nightmare.  Now, it matters.  So why aren’t we prepared to put everything else aside and take up arms for you?  It’s not that we don’t care.  We do.  We really do.  But we also know that there will be another rent bill on the first of the month, and the check will still show up at the end of dinner.  And you can’t pay us, which is completely understandable, and nobody else is going to pay us to be your hero. 

Thus, the choice is that we spend the years it takes (and it always takes years, even those “slam dunk” cases), cover the costs involved (and the costs have at least three zeroes, if not more, each time a check is written) and serve as your protector at our own expense.  Our children need new shoes, but that costs money.  We can’t take your telephone calls if our phones are shut off, and the darn phone company wants money.  In fact, all the things we do cost money.  You want us to make you our charity, to dedicate our practices to you, to bear the weight of what someone else did to you.  You want our families to do without so we can take care of you.  You want us to be your one friend in need, even though we never met you until the day you called to tell us about the outrage perpetrated on you. 

You aren’t to blame for this.  It’s not your fault that somebody in the government employ violated your rights.  You didn’t deserve it.  But it’s not our fault either.  Just as it’s not wrong that you’re angry and frustrated by your treatment, it’s not wrong that lawyers have to earn a living to survive as well.  There’s no pot of gold awaiting us at the end of the rainbow, as people somehow think, and your outrage will translate into our wealth.  At the end of the case, we sometimes get a hearty thank you and a handshake.  More often, the win is attributed to divine intervention and we are informed that it had nothing to do with us.  Nice.

Lest you think lawyers are cruel, heartless creatures, consider this: When was the last time you stopped at the table of a lawyer in a restaurant and offered to buy them a nice bottle of Chianti to go with their liver and fava beans as a sign of your appreciation of their contribution to the welfare of society without compensation?

As for those lawyers inclined to put out soulful cries that legal services should be freely available to all, call me when they decide to dedicate themselves to the cause and forego feeding their children.  Only then will I consider their otherwise disingenuous notions.

Consider the fine lawyers who represented Shawanna Nelson Lumsey.  They did a heck of a job.  They won.  The ruling will benefit other women who will be able to give birth without being shackled to a hospital bed.  They are heroes.  Too bad their winnings won’t be enough to go to Starbucks and celebrate with a vente mocha frappuccino.  Not even if they share it, and keep it a secret from their hungry kids.

Almost every lawyer I know does pro bono publico, but even so it’s woefully inadequate to care for all the outrages that call for redress.  The problem isn’t lawyers not caring, but the $1.50 they get in the end.  If they win.

Remember the thrill, the amazement of The Sting?  Well, Fox’s new drama, Lone Star, premiering next Monday, is no Sting. 

But first, the burning question of what I’m doing writing a review of a TV show, and especially a show that has yet to air.  For reasons unclear to me, I’ve was asked by something called Klout if I wanted to do this, and I figured, why not?  The worst that could come of it was that I had to watch a TV show, and I’m tough enough for that.

So I was offered the choice to go to a premier or have the premier come to me.  I picked that latter, for which I received a DVD preview of the TV show, a bucket of popcorn and a bag full of Lone Star stuff.  Cool, right?  The popcorn was stale, but it was a gift horse.  Klout requires that I add in its ethical disclaimer:

Given a Klout Perk

I was given a free product or sample because I’m a Klout influencer. I was under no obligation to receive the sample or talk about this company. I get no additional benefits for talking about the product or company.

Obviously, no one at Klout has read my reviews before, or they would have known that a freebe isn’t buying anybody a good one here.  That said, getting a box with free popcorn and premiums was great, and I plan to watch as many TV shows as Klout plans to send me.  I might also be persuaded to drive some high end cars, if you Klout guys catch my drift.

Getting back to the show, the premise is con man with a conscience, because prostitute with a conscience hasn’t been done to death.  The star of the show, James Wolk, is, I was informed, “adorable”, meaning that if you’re inclined to watch a show because there’s an adorable guy in the lead, maybe this is for you.  I tend not to be as big a fan of adorable as some others, and so I found myself constrained by plot.  Here’s how Fox describes it:

ROBERT/BOB ALLEN (James Wolk) is a charismatic and brilliant schemer who has meticulously constructed two lives in two different parts of the state. He’s juggling two identities and two women in two very different worlds – all under one mountain of lies.

As “Bob,” he lives in Houston and is married to CAT (Adrianne Palicki), the beautiful daughter of CLINT THATCHER (Jon Voight), the patriarch of an ultra-wealthy Texas oil family. More than 400 miles away in the suburban west Texas town of Midland, he’s “Robert,” living a second life with his sweet, naive girlfriend, LINDSAY HOLLOWAY (Eloise Mumford). There he plays the perfect boyfriend while secretly bilking local investors of their savings. While in Houston, he’s a devoted husband, charming Cat and her family to cement his position in the rich family business he aims to clean out.

Bob has lived both lives successfully for years without arousing any suspicions..so far. While one brother-in-law, DREW THATCHER (Bryce Johnson), admires Bob, while his other brother-in-law, TRAMMELL THATCHER (Mark Deklin), is growing suspicious of his motives, and along with his wife, BLAKE (guest star Rosa Blasi), threatens to expose Bob. In this world of cons, everyone has ulterior motives. ALEX (guest star Andie MacDowell), a sharp, sexy, sophisticated East Coast transplant has her eye on only one prize: Clint. Eager to stake her claim, she will do and say anything to get what she wants.

With the cons closing in on him, Bob begins to fear his secret lives may unravel as he becomes divided by his love for two women; his loyalty to his father and mentor, JOHN (David Keith); and his respect for his father-in-law, Clint. Now as he tries to hold his two lives together, while fending off angry investors and the growing suspicions of those around him, Bob puts it all on the line hoping he can beat the odds, leave the schemes behind and keep two separate relationships afloat.

That’s how they want the show to come off.  Putting aside the silliness of any con man spending years (years?) successfully moving between two fictitious lives, especially without any particular con involved, the set up fails when the hero realizes that he loves his fake wife and his fake girlfriend, not to mention their families, friends, neighbors, postmen, dogs, whatever.  He has a heart of gold, which is good since he so adorable.

The funniest part of the story is when helicopter con man daddy tells his son that he’s the greatest con man ever, making this the perfect metaphor for the Slackoisie, as the adorable kid does nothing but smile and have sex with his beloved wimmenfolk, no actual con in sight, and still the old man tells him how wonderful he is.  It made me wish they put Cheetos in the Klout goody bag (and by the way, Klout people, the beer nuts and Godiva chocolate were missing). It was a touching scene, especially when we could see the puppy dog look on Wolk’s face showing how badly he needed approval.  Except, of course, for the total absence of a point to the con.

But then, what’s the point of the show?  As it becomes clear, it’s about his concealing lies while trying to turn legit with everybody.  At one point, he’s confronted by his brother in law with a lie he had used while switching from wife to girlfriend.  Uh oh!  Caught! Nabbed!  Found out!  But wait, despite the weirdly naive, dopey look in his eye, he pulls another lie out of his butt and not only squeezes out of the trap, but does to in a way that makes him even more wonderful and adorable to all involved.  As for the confidence game, well, there is none. 

It’s a one trick pony.  He winds his way between his two lives, getting caught in lies and wiggling out again, all the while being, well, adorable.  Sure, we can never be sure if he’s being sincere or lying through his teeth, except when he’s talking to his real father, the unrepetent con man without a heart of gold or a conscience, who snarls at his son’s desire to have a real life with his real wife.   And his real girlfriend. 

If you enjoy obvious tension, and as much female nudity as Fox is allowed to show, together with gratuitous displays of superficial emotion that happen with sufficient frequency to allow any man to grab a beer or go to the loo, then perhaps Lone Star is your cup of tea.  As for me, I plan to enjoy my stale popcorn while wearing my Lone Star tee-shirt while watching Dr. House, and then changing channels after hearing those famous last words (wait for it): “That’s one bad hat, Harry.”

Thanks for the nosh, Klout, even though there were no beer nuts or chocolate in there.  If you send me a car next time, please make sure you don’t forget the tires.