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.

I admit it, I’ve never been very good at seizing upon empty platitudes, cute metaphors or empty strings of words as a call to action.  People who love committees and consensus see this as a character flaw, which could explain why no one asked me to sit on the ABA Panel on the Future of Lawyering.  Then again, they didn’t ask Tannebaum to sit on the panel either, and he’s a company man.

If you think nostalgically about the practice of law and how it used to be, then you are on the train tracks and not on the train,” said former Connecticut Bar President Frederic Ury, who is the president–elect of the National Conference of Bar Presidents.

Hey, I think nostalgically about the practice of law.  I think about how it used to be.  That means (gasp) I’m on the train tracks and not on the train.  Uh oh.

I think about the days when lawyers understood that the client was their focus, not making money or enjoying work/life balance.  I think about the days when lawyers weren’t afraid of hard work and sacrifice, and understood that being a professional meant putting the welfare of your client ahead of your own. 

I also think about the days when excellence was something you developed and reputation was something you earned, rather than words a marketer put on your website or the bravado of the hungry baby lawyer.

And now the leaders of the official bar associations tell me that I’m on the train tracks and not on the train.  So where the heck is this train of yours heading?

“The development of artificial intelligence along with increased Internet search capabilities is making access to answers for complex legal questions easier and cheaper.

My gut reaction is to channel H.L.Mencken, but I fear that reference would be lost on these important bar association officials.  Clearly, this Fred Ury is trying to tell me something and I’m too much of a dinosaur to get it.

Why is someone going to pay $700 to have a lawyer prepare a will when they can get it for $49 online,” said Ury. “We have had a monopoly on answering legal questions about the law. But the consumer–our former clients–can now get that information for free on Google.

“Virtual law firms are here,” he said, “and there are now thousands of small town and small firm lawyers who once depended on those consumers who may not make it.

Until now, I hadn’t realized how out of touch I’ve become.  It suddenly dawns on me why Ury concludes that people can obtain answers to “complex legal questions easier and cheaper” on Google than going to a lawyer.  I didn’t see the writing on the wall. 

The quality of legal advice available today from the mouths and minds of lawyers is no better than the worthless crap one finds on Google.

I’ve seen the legal advice the internet has to offer.  It’s bad.  It’s worse than bad. It’s dangerously awful.  It downright sucks.  So what Fred Ury is saying is that the advice coming from living, breathing lawyers is no better than the Google garbage.

Holy moly.  Up to now, I had been looking at it all wrong.  It had long been my understanding that the important official people who desperately wanted to hold high office in bar associations were of the view that lawyers offered something more, something better, than crap on the internet.  Never did I realize that the profession had devolved to the point that living, breathing lawyers were not only unworthy of being retained, but superfluous, incapable of doing any better than a $49 will.  Who knew?

This is the message being sent to those of us with tickets to sell used cars in court by the most August Association in the profession, the American Bar Association.  You suck so bad that Google is just as good.

And so I’m here on the train tracks rather than on the train.

So while some legal services are available via keyboard and internet connection, there will always be clients who for some crazy reason, would rather actually talk to a lawyer, in person, before having documents prepared for signature that will affect some aspect of their future.

If you want to compete with the $70 virtual lawyer, become a virtual lawyer and charge $67.50. Lawyers today well know the tactics that comprise the race to the bottom.

I am off the train, and I’m not getting on, no matter how many train riders scream for me to jump on board.

And I’ve got Tannebaum on the train tracks with me, though not for exactly the same reason.  Whether or not there are clients who, “for some crazy reason,” want a real lawyers in place of Google, it strike this old dinosaur that there are still a few lawyers whose advice is better than Google, whose answers to “complex legal questions” cannot be found easier and cheaper online.

Of course, that’s just my view.  Clearly, it’s not shared by the Fred Ury or the ABA.

Radley Balko has taken time off from  puppy love to note another isolated incident, the  second such isolated incident coming out of beautiful New Brunswick, New Jersey in a week.  They’re certainly getting their money’s worth out of the local cops in Jersey.

The latest involves two Rutgers students who  made the mistake of renting the basement apartment in a house where a warrant was to be executed.

Two Rutgers roommates say they were sleeping in the early morning hours of December 10th and had no idea who was barging into the basement room they share in an off-campus house in New Brunswick.

“I got hit in the face; I got hit in the ribs. That’s basically what happened,” said Kareem Najjar, a Rutgers University student.

“I remember basically waking up to being hit, on the side of my face, on my back I got kicked a couple of times and stepped on,” Kostman said.

You can never tell when some student, against whom no evidence exists to suggest they are in any way involved in criminal activity, might attack.  Better safe than sorry, the police manual spells out, so first subdue them as violently as possible.

The roommates say it wasn’t until they were handcuffed that they were told this was a raid by New Brunswick Police who apparently had a warrant for someone else in the house.

“You were never arrested?” Eyewitness News reporter Sarah Wallace asked.

“No, and we asked why we were being arrested and they said, ‘you’re not being arrested you are being detained’,” Najjar said.

Once they were finally released, they say the cops had ransacked their room, and left them sitting for nearly two hours in their underwear in the cold.

Kostman claims his handcuffs were so tight and on for so long, he now has permanent nerve damage in his thumb.

That’s the price one has to pay for police safety.  Don’t like it? Well, next time you’re in trouble, call a criminal.  Chances are they won’t do as much damage.

None of this, of course, comes as much of a surprise.  It happens.  It happens over and over.  And then it happens again.  The larger question, of course, is why we continue to tolerate police doing this, and the answer can be found in the comments to the story at My Central Jersey :

7:44 AM on February 12, 2011

So many are quick to judge before all the facts are in. I’m sure these two “college students” are not as pure as the driven snow. The term “Brutal Beating” has become a standard whine for media releases and frivolus lawsuits.

8:09 PM on February 11, 2011

These type of things tend to happen when you live in a drug house!

2:51 PM on February 12, 2011

Are you referring to one where 4 of 5 cops are on top of a guy who is still resisting arrest, and the cop hits him four times? In my opinion, and most the people who commented on that article, the guy got what he deserved. A cop tells me to do something, and I do it. These cops have a tough job, dealing with strong young men with poorly developed brains.

5:59 AM on February 12, 2011

Because the smell of $$$$$ is more attractive when you sue for it instead of earning it. When they lose a case, those who file frivolous lawsuits should be made to pay ALL Court Costs! Students don’t want their parents (who are paying tuition for their little darlings) to know what they are up to and try to distort things so that they look like the victims. Remember Tyler Clementi. Over the years we have seen the drunkeness, DWI’s, drug use, fights, assault, theft by these little angels away from home for the first time and it creates a huge expense for the taxpayers here. We are sick of it and the media should not pander to it.

7:48 AM on February 12, 2011

Many Rutgers students have become as bad as some of the local low lives in New Brunswick. It took 2 months so they could get together with their schiester lawyer and come up with a greatly embellished tale of woe.

They don’t call it the Garden State for nothing.  Plant a seed and it grows.  Sometimes it grows stupid.

I’ve expressed concern that those of us who are inclined to find these isolated incidents disturbing are becoming desensitized to them by the onslaught of videos and images of brutal police conduct.  But what of those who don’t find it troubling at all?

It strikes many of us, myself included, as impossible to learn of these isolated incidents and not have them influence our realization of what happens on the streets.  We see kids, college students, beaten, sometimes killed, by police.  By mistake.  For nothing.  What part of a brain allows a person to disconnect the harm done with the recognition that these are our children, our brothers, our friends, and makes it acceptable to sacrifice them in the name of order?

I fear the answer remains that until it happens to them, until it touches them personally, there will be a way that those who adore order, and the enforcers of order, to excuse it.  The only good news is that at the pace police abuse and misconduct is going, it may touch them sooner than they think.  Only when it touches their lives will these apologists and blamers get a higher education.  And then they’ll wonder why everyone doesn’t feel bad for them.

But I wonder whether it will reach a point where police officers, most of whom I want to believe are men and women of good will and conscience, have had enough of watching videos of their own doing this to people.
Will cops ever reach the point where they won’t tolerate the beatings anymore?

“I don’t think anyone should ever be allowed to just come into your house and just beat the crap out of you,” Kostman said.

Will cops ever agree?

Ah, Brady.  It’s the carrot always dangling just a bit too far in front of criminal defense lawyers to reach.  So much promise.  So little process.  It’s the most illusive of rights ever given by the Supremes, what I once called the  worst joke ever played by  William O. Douglas.

Nathan Burney (of royal blood, no doubt, thus explaining his use of the majestic “we”, as opposed to the more common explanation of schizophrenia)  explains the gamesmanship surrounding Brady disclosure:

What happens often enough, unfortunately, is that prosecutors try to game the rule.  Any game-playing by a prosecutor is abhorrent, beyond unethical, as it abuses the overwhelming power of the government.  But gaming the very rule intended to prevent such game-playing is perverse.

How do they do it?  One simple way is to just not hand it over, secure in the expectation that the defense won’t ever find out.  The prosecutor can justify this by claiming it wasn’t really Brady material.  Perhaps they spin it as something that isn’t really helpful to the defense, as if their perspective is the only correct one.  Perhaps they spin it as just discovery-type stuff, which unfortunately is not discoverable at this time, if ever.  Or they can just cross their fingers and hope nobody ever gets wise.

And it goes on and on, there being no shortage of games to play when it comes to failing to disclose and finding excuses, justifications, explanations and rationales for depriving the defense of exculpatory evidence.

The bottom line of it, of course, is that no matter what path is taken to deny either its existence or its turnover, or its turnover in a timely fashion so that the defense can actually make use of it, is that Brady is one of the best sounding rights that never happens.  And somehow, miraculously, no judge has ever lost a minute of sleep worrying about what might have been.

So the ABA, our shining White Knight, steps into the breach to fix what ails us.  Do they issue a blanket condemnation of unethical prosecutors and their deliberate concealment of exculpatory evidence in order to convict the innocent?  Nah. Not that it would give rise to more than a hearty belly laugh, but nah.  Do they demand that courts enforce Brady disclosures at the earliest opportunity with the most severe sanctions possible?  Nah, not that it would fix the underlying gamesmanship, though the time of disclosure has always been problematic.

So what does the collection of the most important lawyers in our nation, at least in their own minds, beloved of committees and consensus, come up with as the ultimate solution to the Brady debacle?  A resolution to create a committee to make a checklist.  You can’t make this stuff up.

RESOLVED, That the American Bar Association urges federal, state, territorial, tribal, and local courts  to adopt a procedure whereby  a criminal trial court shall, at a reasonable time prior to a criminal trial, disseminate to the prosecution and defense a written checklist delineating in detail the general disclosure obligations of the prosecution under Brady  v. Maryland, 373 U.S. 83 (1963), and its  progeny  and applicable ethical standards.

FURTHER RESOLVED, That the American Bar Association urges  federal, state, territorial, tribal, and local courts in implementing the above procedure to require a criminal trial court to create a standing committee of local prosecutors and criminal defense attorneys to assist the court in formulating and updating the written checklist delineating in detail the prosecution’s general disclosure obligations.

FURTHER RESOLVED, That any omissions or deficiencies in the written checklist provided by the court should not relieve either the prosecutor or defense counsel of their legal and ethical responsibilities with respect to providing and seeking disclosures.

Lest you think this was a slam dunk, they struggled over this resolution, and finally added in the third decretal paragraph, as there would be open war lest the resolution didn’t uphold the primacy of legal and ethical responsibilities.  As if anybody cared.

Let’s be clear, the relevance of this resolution to the practice of law is dubious at best.  Any prosecutor disinclined to comply with the Supreme Court and the occasional admonition of a trial judge isn’t likely to melt because of an ABA resolution to create a checklist.  But let’s suspend reality for a moment and pretend that the ABA carries some persuasive authority.

A checklist?  Because it works so well for grocery clerks? 

What about the idea of dealing with the reasons why Brady has been such a monumental non-starter, like prosecutors playing games with Brady, or courts ignoring the disclosure coming in the middle of trial, or a day after the verdict?

The Nathans, perpetually optimistic, try to find the positive in this resolution.

So it was with some cautious optimism that we saw the resolution that the American Bar Association adopted today, basically telling courts to devise detailed laundry lists of things that count as Brady material in their courthouse, and to provide them to prosecutors and defense counsel in the cases that come before them.  If adopted, this practice would make it at least more difficult for prosecutors to claim ignorance of material that could have existed.  And it would make it easier for defense attorneys to spot particular bits of police paperwork and other kinds of evidence that they might not have known to ask for, if not disclosed.  It would help the hard-working defense lawyer to root out the Brady that might be there, and it would help the ethical prosecutor collect such material that they might not otherwise have obtained.

I’m constrained to disagree with both the Nathans optimism and the efficacy of being optimistic.  One reason Brady has been such a miserable failure in action is that efforts to make it real seem to invariably fall into the lawyerly fantasy that it’s not that prosecutors don’t want to give the defense exculpatory evidence, but that they just really can’t figure out what it is.  If only someone would hold their hand, wipe their brow, show them the way, then the prosecution would happily fulfill its duty to the defense.  Gag me.

So here’s my checklist:

1. Find anything that could possibly show, or lead to something that could possibly show, the defendant isn’t guilty or that a prosecution witness is wrong.
2. Hand it over.
3. Now.

Let’s see how that pans out.

The first post at Simple Justice appeared on February 13, 2007, entitled Justice is a funny thing.  The first  comment to that post came from Paul Kennedy, about two and a half years later.

Since then, I’ve published 3,976 posts.  There have been nearly 30,000 comments.  The blawgosphere has changed over a few times and we’ve had some pretty good discussions.  Hopefully, it has served some purpose for you, as it’s been cathartic, fun, frustrating and educational for me.

Thanks to all for four years of Simple Justice. 

And if you’re so inclined, please say something nice about me to the parole board.  I really am rehabilitated.  No, really.  Though I may blawg again.

My guess is that he owed back some overtime, which is why Baltimore Police Officer James Fowler’s signature was on red light tickets, the ones issued after cameras caught motorists running red lights.  The way it’s supposed to work is that an officer reviews the images and issues tickets only to those who earned them.  The issuing officer then signs the ticket.

From Packratt at Injustice Everywhere, a  WBAL-TV 11 News story exposed a bit of a problem with 2,000 of the tickets signed by Officer Fowler.

The problem concerns the sworn statement that appears on the citations confirming a police officer has reviewed the camera images to verify a violation has occurred.

On the citations in question, that signature belongs to Baltimore Officer James Fowler, who was killed in a car accident in Pennsylvania on Sept. 27, I-Team lead investigative reporter Jayne Miller said.

The Police Department said it does not blanket approve citations, and only the violators got the erroneous copies. A department representative said internal copies show the name of the officer who actually reviewed the violations.

Carolyn Elefant takes up the gauntlet of the free-ride blogger, those who author content which others than use for their own benefit.

Conventional, 21st century wisdom says that content wants to be free. That content isn’t worth paying for. That “exposure” in exchange for content is sufficient reward.

Funny thing is that those who try to sell you this line don’t have content. And not only do they want yours free, but they want to profit off of it as well.

Some, like [Molly] Secours, are simply cutting their ties, while others, like one blogger on the Hey Arianna Facebook Page is trying to determine whether there’s any legal basis for a lawsuit for retroactive compensation in recognition of how the bloggers’ collective efforts contributed to the success of the site.

As Jay Foonberg, author of How to Start and Build a Law Practice famously says:

Would you rather do the work and not get paid? Or NOT do the work and NOT get paid.

My 21st century spin on Jay’s old Chestnut is this:

If you get paid, I get paid.

Maybe that’s an old-fashioned sentiment in a free-wheeling, crowdsourcing kind of world. But then again, so is freeloading.

If you’re going to blog for free, then blog for yourself.  Your slice of the pie may be worth nothing, but at least it’s your pie.