Senior Judge John Kane in the District of Colorado enjoys a benefit that many of his juniors can’t.  As he’s not on the short list for the Supremes, and doesn’t plan to displace Nancy Grace as the most dangerous mouthpiece misleading the public about the law on television, he’s left to think long and hard about the failings of the system and ways to improve it.

I’ve become a huge admirer of Judge Kane.  It’s not that we’re necessarily on the same page on every issue (which is said in concession to him, since he’s a federal judge and I’m just some lawyer with a keyboard and internet access), but he does what few have the balls and gall to do: He looks squarely at a system that too often fails, says so and tries to find a way to do better.  Sometimes it’s good to be a senior judge with life tenure.

In Stephanie West Allen

At Cato @ Liberty , Walter Olson posts about a little appreciated aspect of cleaning up the mess left behind by dirty, abusive cops.  Rank and file police officers, or as they’re thought of in labor relations terms, a public employee collective bargaining unit, operate under a collective bargaining agreement.  It provides for many things, from new shoes to days off to salary. 

It prevents them from being questioned about their criminal conduct, whether driving drunk or shooting unarmed people for the hell of it, within a certain period of time following their seizure to having their union representative at their side.  It makes the social compact, the “agreement” under which the rest of society operates, look downright tepid.

But what it does, much to the chagrin of those of us who wonder why it is that when we shoot and kill someone, we face the life in prison at best while they get a two week paid vacation, is require that the decision to terminate a police officer because of misconduct be put to binding arbitration or some civil service panel.  In other words, it’s not the police chief or the public that gets to dictate the outcome. 

Rather, it’s a person on a negotiated list who hangs a shingle calling herself arbitrator, or some amorphous appointed board no one has ever heard of, who decides whether a bad cop stays or goes.  We don’t know who this person is, or have a vote in his election.  She doesn’t have to please us or run for re-election.  And after it’s all over, we live with the consequences of his decision, both financially and physically, as he has the authority to put a gun back in the hands of a killer and set him loose on the streets to use it.

Can this possibly be true?  Listen to Walter.

Why are public-sector managers often reluctant to fire errant employees, even when the stakes of misbehavior are high? One reason is fear of outcomes like that in Aurora, CO, where a civil service commission has just ordered reinstatement and back pay for an officer terminated from the police force after he “allegedly kneed a female suspect in the face while she was handcuffed and on the ground,” to quote the Denver Post, and then failed to report her injuries even though she was bleeding profusely. The police chief said he considered the incident an “egregious” use of excessive force, and the woman, whose orbital (eye-socket) bone was broken, won $85,000 in a settlement with the city.

That was not good enough for the civil service panel considering the officer’s firing, which said excessive force had not been proved to its satisfaction. It did find that the officer had violated a number of department policies — he should have reported the woman’s injuries, for example — but said termination was too severe a penalty; instead, it said, he should be docked 160 hours of pay and made to undergo training. The docking of pay seems to be of a somewhat notional variety, however, given that the commission ordered him awarded back pay for the salary he would have earned had he not been dismissed in June 2010 (the underlying incident took place in February 2009).

What distinguishes the decision maker from us is that they lack our focus on cleaning up the mess of abuse and misconduct, saving human beings from the harm, maybe even death, and instead focusing on this as a labor relations issue, a question of comparative discipline between employees. 

The stakes are huge.

When reinstatement is ordered, it means that the police department, a budget driven enterprise like any other in government, has to pay twice for a very expensive employee.  When the officer is fired or suspended, another officer has to take his place.  Someone has to be on the shift patrolling, and that someone gets paid for it.  Sometimes it’s a new cop. Sometimes it’s a cop on overtime. 

Should the officer be given his job back, and the termination be deemed too extreme a punishment for the conduct, he gets back pay, meaning that the police department now has to pay the full freight, salary and benefits, to an officer who didn’t work as well as the one who did to take his place.  For the “wrongfully” discharged officer, it’s a huge windfall, a paid vacation on top of getting away with, well, murder, maybe.  In Denver, granted it was only kneeing a handcuffed woman in the face.  Imagine a place where such conduct isn’t worthy of termination.  That place would be Aurora, Colorado.

Consider the rarity of a cop being fired for engaging in misconduct.  Only in the most egregious cases is anything done, any consequences at all for abuse.  And then consider that it’s subject to reversal by someone who couldn’t care less about Carla Meza, the handcuffed woman, but instead considers only whether the severity of the punishment, the firing of Police Officer James Waselkow, the he-man law enforcer who kneed her in the face, was comparable to the treatment of other abusive cops.

Normally, discussion about cops harming people is defended on the issues of right and wrong, giving cops a break, making snap decisions in the midst of dynamic situations.  None of these typical issues play a role in this decision.  It’s merely a labor relations issue, sanitized from the nasty details that we entrusted this cop with a gun and shield, and he abused that trust and engaged in conduct that would have meant some serious prison time for anyone else.  No, labor arbitrators don’t concern themselves that way.  It’s only about what’s fair to the public sector employee.  Ultimately, that’s the only issue that matters to this higher authority.

Aurora Police Chief Dan Oates never fired a cop before Waselkow.  Want to bet how long it will be before he first another for misconduct and abuse?  Forget about the harm done to the public, and consider what the true power behind the shield will do.

Antonin Pribetic, the Trial Warrior, pointed this fellow, Jack Toomey, out to me on a website called AllExperts.  His expertise is criminal law.

Expertise

Please do not ask me about potential jail sentences that you, your friends, or family might receive in court. There is no way for me to know that. Only a judge could answer a question like that. I am also NOT a probation officer or parole officer so I cannot answer questions that relate to parole or probation. Also please keep in mind that every state has different laws. If you are planning to ask a question about a specific law or criminal charge that pertains to your state only it could be difficult to answer. I also cannot give you legal advice on what to do or what not to do in court. Retired police officer with 26 years experience. Worked in the patrol division as well as over 14 years in the detective bureau. Investigated a wide range of crime such as murder, rape, robbery, theft, fraud, missing persons, and other very sensitive crimes. I am available to answer your questions about criminal law and especially as it applies to police work. I taught at the police academy for several years and am especially knowledgeable about search and seizure. Any question about criminal law is welcome! Please don’t ask me to do your homework or ask me questions that obviously come from your teachers or professors. I also do not do online interviews or surveys. Young people need to gain face to face interviewing skills. Local police officers usually are very agreeable to assist in these assignments.

Experience in the area

I am a retired police officer with 26 years experience. I investigated almost every type of crime including murder, rape, theft, missing persons, fraud, and domestic abuse. I am very knowledgeable about search and seizure and taught at the police academy for several years on a variety of subjects. I can answer questions that a lot of attorneys cannot since they do not have “street experience”.

Education/Credentials

Bachelor of Science degree in Criminolgy from the University of Maryland.

What do you still hope to achieve/learn in this field?

Please do not ask me what someones jail sentence is going to be. There is no way for me to know that.

I am very knowledgeable about search and seizure and taught at the police academy for several years on a variety of subjects. I can answer questions that a lot of attorneys cannot since they do not have “street experience”.

The word “Quora” has been bandied about by the early adopters as the newest greatest/worst way for lawyers to craft an online reputation for brilliance.  Because the internet needed a  new place for lawyers to give advice for free.

The  Cult of Positivity promoted by social media gurus urges lawyers to promote themselves by posting answers online to questions asked by people who can’t afford lawyers or just don’t want to pay for advice.  The failing of this concept eludes many lawyers (and all social media gurus), but those of us who get the daily calls asking for free consultations or answers to “just a couple of questions” know the score.  You don’t?  You’ll find out, after wasting a hundred hours pretending to care deeply about people who have no potential to be your client and only want a quick freebie from you.

But time-wasting isn’t the only potential problem you’ll endure in trying to build that internet reputation that everyone says you need to survive as a thriving lawyer in the internet age.  Huntington, New York, matrimonial attorney Gary P. Field learned that the hard way.  I don’t know Gary Field, and he may well be a fabulous lawyer, but he had at least one person who didn’t like him.  That person had a keyboard.

[S]omeone had been posting anonymous comments about him on two websites, blasting him as, among other things, “dumb,” a “fool” and “the most worst attorney licensed to practice in the State of New York.”

Mr. Field suspected that Robert Grant, the ex-husband of a client, was responsible for the posts. Mr. Field sued Mr. Grant for defamation and asked the court to order Mr. Grant to turn over his hard drive.

Mr. Grant moved for dismissal and sanctions against the lawyer.

Suffolk County Supreme Court Justice Thomas F. Whelan dismissed the lawyer’s action, Field v. Grant, 34898-2010, although he declined to order sanctions.

“Viewed in the context in which they were relayed and the website forums on which they were posted, the comments constitute pure opinions which cast general reflections upon the plaintiff’s character and/or qualities which are not a matter of such significance and importance so as to amount to actionable defamation,” Justice Whelan said.

Judge Whelan understood what Gary Field didn’t, that reputation on the internet is a two-way street, where expression of opinions about a lawyer can just as easily be negative as positive.  A negative opinion, even if utterly groundless and borne of antipathy for a lawyer having done his job too well, is still just an opinion.  Nobody wants to talk about the fact that people can say bad things as well as good things on the internet.

This reality gap in online comprehension is preventing lawyers and the consumers of legal services from gaining a meaningful appreciation of what the internet has to offer, and what it doesn’t.  The attack on Gary Field was anonymous.  Where are the social media gurus explaining to the public that anonymous attacks are worthless as any angry idiot with a keyboard to vent his spleen. 

They won’t do that, however, as it simultaneously informs their target audience, lawyers who don’t know any better, that there are pitfalls in the digital world.  It’s hard to sell marketing when acknowledging that there are major risks involved.

As the hype about Quora heats up, one has to wonder whether it has occurred to lawyers that their answer to questions, intended to promote their expertise, may reveal them as incompetents?  Just as Bennett shows, and Windy shows, with the misbegotten Avvo Answers, answers are easy to come by.  Correct answers are not. 

Sure, there are opportunities on the internet to show the world your competence.  And there are opportunities to show the world your lack thereof.  And there are opportunities for others to say wonderful things about you, and opportunities for others to say less than wonderful things.  We tend to believe that kind words are humbly deserve, but unkind words are an assault on reputation. 

Maybe, just maybe, they are all well-deserved.  After all, the underlying claim is that this vast resource of information is empowering people to know what they’re getting into.  Sometimes, the accurate information is that they’re getting into trouble.

Judge Whelan made the right decision dismissing Gary Field’s complaint.  Not because the attack was necessarily undeserved, and I will assume arguendo that he’s an excellent divorce lawyer, but because the nature of opinion is that it can go both ways.  Field can fight the attack by offering demonstrable evidence of his competence.  The internet is there for him as well as his erstwhile detractor.

But Gary Field, like each of us, should be aware of the reality that any effort to prove our brilliance on the internet may well do just the opposite.  We may get the reputation we deserve, whether we like it or not.  With Quora added to the mix, there is certainly no shortage of places to strut our stuff.  The only question is whether we look as attractive in hot pants as we think we do.

While some of you were fighting the good fight, standing firm for the Constitution and protecting a human being from the vast might of the government, I was snowbound.  My small piece of New York has seen wave upon wave of snow this month, to the point where we’re within an inch of the all-time record.

My love of snow has waned significantly over the years.  It’s beautiful for a few minutes, until Dr. SJ yells that she needs to get the Prius out and go see her patients.  The Healey has never seen snow while in my care.  When I took a look outside the back door the other morning, I realized that I was in trouble.  The five inches predicted overnight fell short of the reality.



The only aspect of snow that still brings a smile to my face is the opportunity to fire up the John Deere 6×4 Trail Gator with electric plow.  During Long Island’s typical winters, the Gator is just right for plowing the drive and garages, and I enjoy riding around, manicuring the grounds. 

One of the complaints of the Slackoisie is that old lawyers, and those who don’t cry whenever someone suggests that being a lawyer takes work, is that we lack hobbies.  While I can’t speak for others, I have a ton of hobbies.  The notion that hard work and hobbies are somehow inconsistent is hogwash.  Busy people manage to do everything they want, and need, to do. 

Plowing with the Gator is something of a hobby with me.  It’s peaceful and serene out there as I carve paths in places where only a field of white existed.  I usually spend about an hour plowing, even though I could finish it up in far less time if I had to, if I limited my plowing to just the necessities.  But stopping at the earliest opportunity isn’t my way.  As with most of what I do, I do the best I can, striving for plowing perfection.

But on that morning, it was clear to me that the snow had beaten the Gator.  Five, six inches were no match.  Eighteen inches, sadly, was well beyond its limits.  I called my gardener, who plows in the winter, for help, only to learn that his plow had broken overnight under the weight of the snow.  He had worked with me for more than 20 years, and I rely on him.  He apologized, but he was stranded. So was I.

I started calling others to find someone to compensate for my Gator’s inadequacies.  I was only able to reach one person, who informed me that his price was $250 per 100 feet of driveway.  While I might have been cutting off my nose to spite my face, I was outraged at his gouging, and turned him down.  I kept on calling, but no one else answered, and so I went to sleep that night wondering whether I would make it out before spring.  Dr. SJ was not happy.

The next morning, one of the fellows picked up my message from the day before and returned my call.  Willy told me he would be there that morning.  I explained that it was not only deep, but now icy from having sat for a day.  He told me not to worry, he had a way to deal with it.

Dr. SJ, concerned that Willy would arrive at the bottom of our driveway, see what the county plows had done by piling their snow and mush over the end, and drive away rather than deal with the disaster.  She sent my son and me down to the end of our drive to shovel out the six foot high, six foot wide, ice-mound that formed. 

It was the closest to envisioning a heart attack coming I’ve ever experienced.  But we did it, though my son took off in the middle to go on a breakfast date to IHOP (nothing, but nothing, stops a teenager from going on a date), leaving me gasping and wheezing by myself.  In anticipation, I brought along my walkie-talkie so I could tell Dr. SJ my final words if the big one hit. I was barely able to make it back to the house when I was done, but somehow I did.

Then I heard a roaring sound.  I went outside and saw it.  It was incredible.



Some days, the fight is against The Man.  Other days, it’s a fight against mother nature, weather, physics and a variety of natural laws.  Regardless, we just keep fighting, whether we wield swords or plows. 

Thanks to Willy and his Bobcat, I won the fight yesterday.  The TV weather guy says we’re getting another 12 inches this week.

The past few days have seen a number of press releases from LEAP, Law Enforcement Against Prohibition, a group of current and former LEOs who seek the end of the war on drugs, not because they believe that drug use is a fine thing, but because they believe drug prohibition has been a disastrous failure.

LEAP member and retired deputy sheriff MacKenzie Allen entered YouTube’s “Your Interview with the President” competition, where users submitted and voted on questions to be posed to President Barack Obama.  He won, and here’s the asked and answered:

The caption of this video on Youtube is “Obama Says Legalizing Drugs is Worthy of Debate”>Obama Says Legalizing Drugs is Worthy of Debate.”  This strikes me as overly optimistic, as I don’t hear President Obama saying that at all.  Rather, his response is the same string of words that suggests we consider drug use a public health problem (like smoking, drunk driving and wearing seat belts!?!), but that the war itself go forward unabated.

The president does say that steering first-time, non-violent drug offenders into alternatives to incarceration is “worth exploring.”  Worth exploring?  Like forming a blue ribbon committee of current and former prosecutors to study for a decade whether putting a hundred thousand people in prison for possessing small quantities of drugs?  Is this idea so novel, so wildly radical, that it gets a “worth considering” rather than a “you bet” from our president of hope and audacity?

Many of us, and this includes my old buddies at LEAP, believe that we’re making some headway in restoring rationality and proportionality to the war on drugs.  But when a president, the most liberal we’re likely to have for the foreseeable future, refuses to offer any affirmative support to the notion that a half century of the war on drugs has failed to eradicate drugs from our society and solve all the problems attributed to it, then there’s little justification for optimism.

As much as I admire what LEAP is doing, and the LEOs who risk castigation by their “high and tight” brothers in blue, and despite the hope that arguments by police officers might be taken more seriously by those whose re-election depended on their being perceived as tough on crime, the answer to this question was notably unsupportive. 

My guess is they can put away their reflective Ray-Bans, as the future doesn’t look too bright at all.

Yet another reason validating my decision never to jog.  Duane Starkenburg, an avid jogger and admirer of womanhood in spandex, was been arrested as the suspect in the Lincoln Park jogging attacks.  The official version:

Just before 4 p.m. Tuesday, a 27-year-old woman was jogging on the waterfront trail in Lincoln Park, in the 8000 block of Fauntleroy Way Southwest. According to police, an unknown man ran up behind her and attempted to tackle her, throwing his arms around her legs. The woman, who was not injured, was able to break free and get away.

And the unofficial version:

Starkenburg, who lives with his parents in West Seattle, told his mother the whole thing was an accident, according to his mother, Lois Starkenburg.

She said her son, an avid jogger, was jogging when he bumped into the woman and fell to the ground.

“He told me he looked up at her and said, ‘I’m awfully sorry,’ ” and went on with his jog, his mother said. “But two guys told her he’d tried to tackle her.”

As the media splashed Starkenburg’s face on the screen, two other women came forward to say that they too were victims,  as police “urged anyone who might have been a victim of “unwanted touching” anywhere in West Seattle to come forward.”  Who could pass up an offer like that?

Nonetheless, Starkenburg was released on $25,000 bond, and immediately ambushed outside the courthouse by reporters.



While one might suspect that his attorney would have escorted him from the building, or at least advised him not to be goaded into answering questions and to offer nothing more than a smile and the tepid words, “my lawyer has told me not to say anything about the case,” Starkenburg talked.

What’s particularly interesting about this interview is that he’s quite articulate, despite his being dirty, tired and hungry as would any just-released defendant.  The footage is raw, and his responses are raw, revealing both the anger and frustration at the charges as well as some well-founded issues with the allegations against him.  Rarely do we get such an untouched, unrehearsed, uncontrolled view.

Still, the spandex comment isn’t likely to help, even if he makes a valid point.

H/T Venkat Balasubramani

If the only point of the letter was to grab the judge’s attention, then Massachusetts law student Ray Wolfe was certainly successful.  But if he hoped to persuade the judge, not so much. 

The underlying problem was rather typical, a couple of traffic tickets in Missouri returnable while a student was out of state, creating appearance issues that happen with some regularity.  The solution is to write the court a letter seeking an adjournment to a date when the student will be back in Missouri.  No big deal, unless the student takes an overly aggressive tone. 

To let you know I use the word “Judge” lightly in your case. Your asshole (traffic cop) wrote me that ticket, committing constructive treason, and perjury of his oath, as you are about to do. If I come down there you damn sure won’t want me in your courtroom. I know you have people in the courthouse guarding your sorry “Communist” ass. I told you I am currently “Out OF STATE” and I demand a continuance. This is no longer a request!
…
I left that State to get the education so I to be able to fight on there playing field. (In the courtroom) instead of where I have been trained to fight (On the Battlefield) which may be where this winds up if you keep your shit up.

The State of Missouri has failed to provide me with justice, with the securities provided in the Missouri, and United States Constitution, and I will not pay for any injustice in Missouri “Unless it is in BLOOD.” So the question is? Do you want to meet me on my turf “The battlefield” —JUDGE. You best leave me out of that State until I get ready to return.

I would refer to you as Judge but you already proved that you are not interested in justice by the warrant you issued. What do you want BLOOD, because that may be what you get.… Injustice breeds contempt, and with judges like you I am really surprised that people have not got together and started a revolution to hang communists like you, the prosecutor and of course your butt buddies that keep you busy.
…
I know you really do not want me in your courtroom now that you have violated my rights. You have better be glad that no officer stopped me while I was on vacation from college. As I am sure it would have made the headline news. As you might be able to ascertain by now that [sic] I am tired of your shit, and the city of Springfield’s shit! If I pay the city of Springfield anything – it will be in BLOOD. Your lying no-good officer started this shit, I will try to make him pay the ultimate price for his lies since you do not have the integrity to do what is just, fair and proper.
…
[Y]ou are doing nothing more than committing usurpation and tyranny. “Tyranny and usurpation are illegal, and they may be resisted by force, and governments founded thereon may be dissolved in the same manner that people may resist robbers or pirates” (Second treatise of a civil government, p. 170, 174, 177). There is nothing I would like to see more in this country than a good old-fashioned bloody revolution where the people can take the trash out of government and hold them accountable for the tyranny and treason that they have committed. We could once again install a people in government that is for the people and by the people, instead of the communist greedy bastards that are currently serving themselves and their masters.

With this being said and forwarded to various agencies, you can take that arrest warrant and shove it up your communist ass!

In its closing argument, the defense openly conceded that Wolfe was trying to “shock” the judges into taking a judicial action that Wolfe wanted: The words of this letter is [sic] inspiring. These are words, that Jeffersonian style words which have been used to inspire people. However, this was not the purpose. This is for shock. It was for shock value to get the attention of a judge, get the attention of the Court and look at this and take a look and let this man have a continuance, getting past his days where he’s on vacation from law school, where he’s going to be home. Don’t make him travel 3,000 miles, you know, each time for multiple conferences, accommodate him. It’s not that hard, they do it every day.

…

It’s the same language that we’re using today to get the attention of an overloaded municipal judge to look at the case and do the right thing. [our emphasis]

Naturally, the snarky prosecutor responded,

I might have missed some days in history class in high school, but I don’t remember Thomas Jefferson ever telling you, “You can take that arrest warrant and shove it up your Communist ass.”

At Above the Law, Elie Mystal, himself a graduate of a Massachusetts law school (coincidence? Hmmm.) attributes Wolfe’s strategy to a personal failing, calling Wolfe “dangerous and unhinged.”  But can this “deranged” behavior be so easily brushed aside?  Was there no hint of Wolfe’s somewhat unorthodox approach in his law school discussion?  Or perhaps this is what he was taught to do by his law professors.

Putting aside, for the moment, that the Massachusetts law school brand just took a major hit in my office, some might question whether Wolfe sought to threaten the judge with harm or, as his attorney argued, employ “Jeffersonian style words” to “inspire” an “overloaded municipal judge” to “do the right thing.” 

Wolfe’s purpose. to obtain an adjournment to a date when he would be back from law school and physically in the court’s jurisdiction, was unremarkable.  The opinion purposefully omits any discussion of why the judge set the case down for dates when Wolfe was unavailable, and it may well be that the judge was particularly cavalier in his lack of concern for the viability of a student in Massachusetts appearing in a court in Missouri to answer some tickets. 

Judges can be rather demanding that way, you know.  After all, some are more concerned with moving their calendar along than with the cost and burden it imposes on a defendant.  While they could easily accommodate a reasonable request for an adjournment, some prefer to flex their judicial muscles by holding fast to their schedule, no matter how difficult they make it on others.

But even if the judge was less than reasonably accommodating, Wolfe’s approach, to grab him by the collar of his robe and shake him as hard as he could, was unavailing.  There’s a lesson here in both picking battles and persuading others to do as we want.  Don’t make threats against someone whose power far exceeds your own, and upon which you can’t deliver.

There has been a growing sense amongst law students, and even newer members of the bar, that we are all relative equals in the law.  It’s given rise to the prominence of libertarian values on the internet, the expectations of the Slackoisie that they will be ushered into their very own corner office on the first day of their job, the arguments for compliance with their wishes (not requests, but demands).  What’s optimistically seen as a war of words, heated rhetoric, a right too many ascribe to themselves no matter what the circumstances, comes out as a bizarre, indeed deranged, string of threats.

Maybe Ray Wolfe meant what he said, and was ready to spill blood on the courthouse steps if he was forced to return to Missouri to answer the bench warrant.  One can never be sure.  But if that wasn’t really his intention, and he sent those letters with the hope that he would influence the judge to see things his way and grant an adjournment, then he did a very poor job of it.

And this is who fills a seat at a Massachusetts law school?  The most important questions unanswered are whether the school knew they were taking tuition money from a nutjob, or whether this is the mind they molded.  Either way, it should be clear to all that this is not the way to influence a judge.

Via the Legal Profession Blog, a New Jersey appeals court explains why it’s a very different animal to sue your criminal defense lawyer for malpractice, as opposed to alleging ineffective assistance as a basis for reversal.

The plaintiff, Jeffrey Marrero, served 20 months of a five year robbery sentence, until he was released following reversal on appeal and a decision by prosecutors not to retry the case.  While the conviction was reversed for judicial error, cellphone evidence was raised in anticipation of retrial that would support the defendant’s alibi claims and contradict an equivocal identification.  And so the case was dropped.

Dissatisfied with the lawyer who tried, and lost, his case, and with merely being freed and his case dismissed, Marrero went the next step: malpractice.  He sued Howard Feintuch, the lawyer who, Marrero claimed, was negligent in investigating his defense, amassing the evidence and presenting it to the jury, all resulting in Marrero’s conviction.

This is the point where a criminal defense lawyer shifts gears.  While it’s long been my view that our ongoing duty to do no harm to former clients continues when they raise ineffective assistance of counsel claims, and indeed, if the defendant’s argument turns out to be truthful and accurate, we should support their position and fall on our sword,  But then, a claim of IAC is the defendant’s pursuit for vindication, not an attack on his lawyer.  Yes, I realize it feels like an attack, but the lawyer has nothing at risk except some possible hurt feelings.  You’ll get over it.

Suing for malpractice, however, terminates the obligation to support a former client.  Like grieving, it demands a response.  Your lawyer may love you dearly, but not enough to let you dig into his pocket and see what you can find.  Did you really think otherwise?

Feintuch subpoenaed a dear friend of Marrero’s for a deposition, a friend who was on the prosecutor’s witness list at his trial but who failed to show.  Now that’s a real friend.  Marrero moved to quash the subpena, and the trial court granted the motion.  The trial judge held that the friend went to Marrero’s “actual innocence,” which she held was not at issue in the malpractice action, rejecting the widely held premise that a defendant cannot benefit from his “iniquity,” and must prove actual innocence to maintain a malpractice action against his lawyer.

Instead, we accepted as a founding premise that “both the innocent and the guilty are entitled to competent counsel.” Id. at 288. Noting malpractice cases focus on “whether the plaintiff was damaged by an attorney’s negligent performance in the underlying criminal action[,]” we favored allowance of a remedy when a criminal defendant was damaged by the negligent conduct of an attorney who was duty bound to protect the client’s interests.

The appellate court accepted, as it must, the rule that actual innocence was not a required element of an action for malpractice, but nonetheless held that evidence that his defense was as defensible as he made it appear was indeed relevant to the action.

We reject Marrero’s assertion to bar Stenzer’s testimony because the State’s decision not to retry him resulted solely from defense counsel’s failure to introduce the telephone records. The ultimate decision not to pursue retrial was also greatly impacted by the victim’s equivocal identification and the unavailability of the assistant prosecutor who had participated in the first trial but had been deployed for military service in Iraq. We are told the defense had uncertified telephone records at trial but did not use them and that the State had listed Stenzer on its witness list to blunt any effect once the telephone records were offered. Thus, the production of the certified records alone did not cause the State to decline prosecution. Believing Stenzer’s testimony would have been damaging to Marrero in his criminal trial, defendants may have withheld the records, so as not to trigger the State’s presentation of Stenzer. Therefore, Stenzer’s deposition may confirm defendants’ assertion that their decision not to present the telephone records was not negligent.

That the rule in Jersey that even guilty defendants are entitled to competent representation is a good one, indeed an important one given that the guilty defendant is more in need of competent counsel than anyone else.  Beating weak cases isn’t nearly as difficult as beating the slam dunk guilty case.  Yet, a defendant should never forget the little details that go along with subsequent exoneration when deciding whether to sue the lawyer for malpractice.  Like the fact that you did it, and just skated, and there are witnesses who can turn you from hero to zero in no time flat.

There is an odd thing that happens in the heads of people who win their criminal cases, whether before, during or after trial.  They tend to forget that they were guilty, committed the crime and got lucky.  This may skew their perspective just a bit, causing them to have an inexplicable belief that the exoneration makes all the evidence of guilt disappear.  They similarly tend to forget that their defense lawyer knew all about the evidence that would sink them.

In revisiting how a trial might have ended differently, the criminal defendant may not have the best viewpoint on how their trial strategy developed.  For example, they may forget that the reason their lawyer decided not to open a particular door was because he knew about the huge, looming evidence monster hiding behind it.  Raise an issue and the prosecution is alerted to even better, stronger evidence than what they already have.  You didn’t want to do that in preparation for trial for a reason.  It doesn’t disappear because you’ve forgotten the reason after the case was dismissed.

This isn’t to suggest that lawyers who defend the accused should be allowed to commit malpractice with impunity, whether the defendant is guilty as sin or pure as the drive snow.  Both the innocent and guilty alike deserve competent counsel, and the fact that the rule is that only the defendant who was actually innocent suffers cognizable injury from malpractice doesn’t provide the proper incentives to those plead ’em and weep lawyers to do their jobs.

But the primary focus should be winning the case.  Once done, regardless of the basis for dismissal or reversal, take a serious step back before suing your lawyer. Think long, hard, and realistically about what was more responsible for your conviction, your guilt or his.  If you push the envelope, you may go from innocent in prison to guilty man walking.

Brian Tannebaum pisses off a lot of early adopters, harping as he does on such IRL concerns such as honesty, integrity and the fact that no hi-tech device makes you a better person.  He wasn’t the only person who thought this, apparently, as  he posts about someone named Loren Feldman.

Loren Feldman is a big thorn in the side of all the losers who see social media as a road to riches, as something that defines their existence, as a “real” world of “friends.” Social media evangelists hate Loren, because for one, he makes videos (all now deleted from the internet) that can be summed up with this message:

Are you people kidding me?

Loren attacks the phonys, the frauds, the ones whose image is nothing more than a twitter account and Facebook fan page. He goes after those in social media who have attempted to make money off telling people what they already know, while trying to convince them that the riches will follow if only their advice is heeded.

I hear a lot of talk about the web social graph. Another made up meaningless word these web clowns thought up. It’s a fancy way of saying people you know online. Apparently these dopes think that this is important to you. It’s not. Here’s why your web social graph is meaningless to you and your life.

Firstly, you barely know the people in your social graph. These aren’t real friends, they are people whose avatar you recognize. Following someone and giving a shit, about them, or their opinion on what soap to use are two very different things. I’ve met some nice people on the web, but I do not know them well enough to care about their opinions. About anything. You care about the opinions of smart people you know and trust. Think for a second and be honest. How many smart people have you met online? Would you trust these people?

You already have your social graph. It’s your friends in real life. Your friends online? Sure they are nice and all, but do you really trust them? You haven’t even met them in real life, and you are going to trust their opinions? That’s just stupid. Real stupid. Trust me, after all I’m in your social graph.