While the interests that appear in Eugene Volokh’s post vary widely, sexual themes are rarely among them.  So it figures that the one time he decides to get wild and crazy, some nutjob would try to shut him down. 

Check out the Appellant’s Emergency Motion to Seal Portions of Court Filings Referencing Libelous Statements Made by Others in Wolk v. Olson (3d Cir.). To review the bidding, Arthur Wolk sued Overlawyered.com, alleging Overlawyered had libeled him. The case was dismissed on statute of limitations grounds, and Wolk appealled. Glenn Reynolds (Instapundit), Marc Randazza (Legal Satyricon), Ed Whelan (National Review Online), and I signed an amicus brief supporting Overlawyered’s position in the appeal. Wolk’s lawyers then filed a response in opposition to the motion for leave to file that amicus brief.

That response, filed on Wolk’s behalf by his lawyers, made a false assertion about a post of mine on incest law. And it also wrongly suggested — with no foundation whatsoever — that my incest law post gave Wolk “more than a reasonable basis to question whether at least one of the amicus bloggers seeking this Court’s audience, one of whom apparently has a penchant for discussing sexual misconduct, may be responsible for the horrible accusations of sexual misconduct against Wolk on Reason.com.”

No one asked me to sign on as amicus, which deeply hurt my feelings.  On the other hand, I try to avoid posting about incest, which may explain why I was left out of the club.  But I digress.

Eugene’s point is that his post, ripping Wolk for his absolutely irrational allegations and utter absence of logical reasoning, would be subject to being “unposted” by dint of Wolk’s attempt to have paper submitted in the open subsequently sealed, post hoc.  In other words, what is will no longer be, and a published post based on open allegations would then be subject to court order directing that it be unpublished.  There’s a concept.

This raises a few interesting notions on the internet.  Initially, the idea that publication of something that appears in open court papers would be subject to post hoc revision would put free speech in the toilet.  Wolk’s crazy allegations were a worthy, almost mandatory, subject of scrutiny.  He made the allegations, and they demanded Eugene’s attention.  He made them in paper filed in court, and that’s just about as open as it comes.  Wolk did what he had to do, and Eugene did what he had to do.  That’s how scrutiny works.

Now, Wolk is ashamed of being exposed as irrational, so he wants his papers sealed.  My bet is that he wishes that he never wrote the papers, never made such ridiculous allegations.  But he did, and he can’t unfile his papers.  Sealing them is the next best way to keep the craziness under wraps. 

So Wolk files in the open and then seeks to have his openly filed papers deemed sealed, nunc pro tunc.  Because we all know how well the legal fiction nunc pro tunc unrings the bell.  It would be one thing if that’s where it stopped, but Eugene’s point is that his motion to seal isn’t the ending point, but the beginning.  It’s the set up for obtaining an order to take down Eugene’s post, because it quotes the contents of papers that, in the world only a lawyer could love, can’t be seen because of the after-the-fact sealing. 

The question isn’t whether Eugene quotes Wolk faithfully, before ripping his head off, but whether his post, entirely proper at the time, can be rendered improper afterward.  Imagine the havoc that could wreak.  I wonder if the order would require me, having read Eugene’s post, to forget everything I saw?

But there’s a secondary aspect to this that makes it even more ridiculous.  Even if the court granted Wolk’s motion, sealed his papers nunc pro tunc,  and ordered Eugene to take down his post that quotes from sealed papers, what about the cache?  This is the internet, guys.  Nothing is every truly taken down.  Nothing online really disappears.  It’s out there somewhere. Always and forever.  There is no unringing the internet bell.

I can imagine the day after Eugene is ordered to remove his post about Wolk, and Wolk googles away to make sure that Eugene isn’t being contemptuous.  “Aha!”, Wolk exclaims.  “There it is, the offending post that faithfully quotes my improvident submission,” says Wolk.  “That Volokh was ordered to make it disappear and yet it’s still there for the world to see.”  What would the court have Eugene do?

The power of the Third Circuit Court of Appeals is awesome.  Truly awesome.  But not as awesome as the power of the internet.  It can order a man to be put to death, but it cannot order the internet to obey it’s legal fiction.  It can order Eugene Volokh to take down his blog post to protect Wolk from himself, but it cannot order the virtual universe to forget it existed.  It’s there, forever and ever.  There’s no going back.

Eugene asks that others who share his interest in maintaining the integrity of critical commentary on the internet stand with him and oppose Wolk’s attempt to retroactively censor the blawgosphere when it calls him out.  Even though I wasn’t asked to sign on as amicus, I stand alongside Eugene Volokh now.

And to the Third Circuit, my expectation is that the court will not only reject Wolk’s application with extreme prejudice (of the legal sort), but recognize that the publication of critical commentary in the blawgosphere is every bit as worthy of full and unfettered protection as any other publication. 

If Wolk doesn’t like being ridiculed, then he ought to think long and hard about what he puts into his court papers.  The solution to nuttiness isn’t to shut down the people who point it out, but to not behave nutty.

At Reason,  Radley Balko writes about the settlement in the case of Sal Culosi, a 38 year old optometrist in Fairfax County, Virginia, who was gunned down by Detective Deval Bullock as a SWAT team came down on him for the violent crime of sports betting. 

The SWAT team came to Culosi’s house because another Fairfax County detective, David Baucum, overheard him and some friends wagering on a college football game at a bar.

After overhearing the wagering, Baucum befriended Culosi. During the next several months he talked Culosi into raising the stakes of what Culosi thought were friendly wagers. Eventually Culosi and Baucum bet more than $2,000 in a single day, enough under Virginia law for police to charge Culosi with running a gambling operation. That’s when they brought in the SWAT team.

In a heartbreaking entry on a website she set up for her son, Anita Culosi addressed him directly last week:

I’ll beg your forgiveness Son…because I am not able…to go the distance. They call it…settlement. I call it something else…and because of that…my heart…is not settled…and my hope for justice…and my promise to you…have both been compromised…I believe in my heart that we would have won in court but I was told to consider the risk of that not happening…Our family has already been through almost 5 years of pain, frustration, disappointments, and stress…and there was the opinion that even if we won the county would appeal and that would mean a few more years and resources fighting what could still be a losing battle.

Two million dollars in hand, and yet they felt empty.  Sal’s mother apologized for her decision to settle the case, as if she had compromised his death. 

That the settlement included an explicit assertion that the settling party admitted no wrongdoing is par for the course.  It’s the nature of settlement, that “thing” that so many who adore consensus and compromise above all else prize above all else.  Descriptions and examples always involve settling parties being so much kinder, more mature, more empathetic and understanding than the churlish ideologues who insist on an outcome. 

Of course, those who stand firm also stake their win on the system working like a well-oiled machine, one that not only produces the right outcome but does so within the time from of a life in being plus some two-digit number of years.  Not a great bet.

Both Anita Culosi’s pain, and Radley Balko’s complaint, miss a crucial aspect of the law.  The law often fails to provide a remedy for all that people can do to each other.  In this case, people includes governments, and even police officers.  In fact, the law is a particularly worthless instrument when it comes to government and police officers, and this is deliberate. 

The reason is clear: Governments and police officers screw up all the time, and if they were held responsible every time they screwed up, they would (a) never do the job we require of them and (b) cost the citizenry a bloody fortune. 

Lawyers realize what a blunt instrument the law can be.  We live with the reality that it works poorly, if at all, to satisfy the purposes society expects of it while covering its failure in sweet platitudes.  That we can occasionally get in one solid blow to the head is a huge win.  Huge.  But only to us.  Not to the people we fight for. 

People expect too much of the law.  They expect it to meet all the silly platitudes etched over courthouse doorways, the sort of stuff that we teach grade school children to make them want to win the good citizenship award.  It’s not that we shouldn’t expect the law to be better, though what would constitute better depends largely on where one’s standing, but that the system as it exists is rough at best.  Perhaps it’s time for a new third grade civics lesson. Nah, that would just make people feel badly about the law, and as all officials know, we could never keep people in line if they don’t respect The Law.

Rather than feel the pain of having settled rather than demanded a declaration from a judge or jury that SWAT Detective Deval Bullock was wrong to kill Sal Culosi, his mother Anita needs to understand that she won on Sal’s behalf.  In fact, she won big.  She got her admission of guilt, two million admissions of guilt.  Guilt, guilt, guilt.  She has nothing to feel badly about.  She did right by her son.

Let’s not bemoan that the system didn’t scream out to the world that Bullock needless, stupidly, violently killed Sal Culosi.  It did.  It did exactly that, to the extent the system is capable of doing what people want it to do.  Not only was this a blow to the head, but she knocked the system clean on its butt. 

We need to recognize a win for what it is.  We need to stop having naive expectations of a system that isn’t yet capable of giving us what we were told as children it can do.  The system doesn’t work that way. It doesn’t work that well.  The system doesn’t vindicate rights and produce justice in clear, simple words that express all the pain in our hearts and minds. 

When the system gives us two million admissions of guilt, it’s a damn fine day for the system.  This is the best it works, and to let that pretense that the defendant admits no wrongdoing bother us is silly and childish.  Everyone knows they were wrong, and they put two million dollars on the table to prove it. 

Bullock was wrong to kill Sal Culosi, and rather than decry that lack of express admission, let’s scream out that it was wrong and this proves it as best a lousy system can.

Martin Luther King, Jr., advocated civil disobedience as means to achieve equality.  Not moral wrongs, but refusal to adhere to the rules that prescribed the orderly society that kept blacks subservient to whites.  If one accepts that notion that there are three competing political interests, order, equality and freedom, then Martin was prepared to sacrifice order for equality.

Order is the interest that most people are concerned with, as it protects the normality of life for the majority. And, after all, people are always guided by their self-interest, whether they want to admit it or not. 

Today, the battle still rages, but it’s between equality and freedom, with order long since acknowledged as nothing more than the convenient means of keeping the troublemakers in their place.  Advocates for equality today argue that freedoms must be curtailed in order to achieve equality.  The question remains, however, whether Martin would have taken that stance, or saw freedom as the roadblock to equality that needed to be overcome.

In his most famous speech, I have a dream, two themes emerged.  The first is summed up in this sentence:

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.

The second theme is seen in his repetition of the phrase, let freedom ring, culminating in his closing:

And when this happens, when we allow freedom to ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God’s children, black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual, “Free at last! free at last! thank God Almighty, we are free at last!”

Rather than view equality and freedom as competing values, this suggests that they were both necessary aspects of each other, that one without the other necessarily failed to be realized.

I suspect that Martin saw equality as an artificial roadblock on the path to freedom, constructed by some foolish and troubled people who needed to come to grips with their own limitations and challenges before they could recognize the impropriety of accepting others as human beings and fully equal in all respects.  I suspect he believe that equality, though not easily achieved, would eventually be realized.  And then, I suspect, he believe that equality would put those who suffered discrimination on the road to achieving freedom. 

Equality, therefore, was not part of the three conflicting interests, but a subset of freedom that had to be achieved in order to ultimately attain freedom itself.  If that’s so, then Martin would never have traded off the long term goal, freedom, for the interim goal of equality.  To do so would have rendered equality less meaningful, less worthwhile, if it only led to order, to being equally subject to control and limitations.  It’s like saying everyone, regardless of race, is free to eat at the same table, but the cost of this equality is that the food will taste awful.

Martin would never bargain away freedom to achieve equality.  He knew that the latter without the former was a hollow victory, and that the true purpose of equality is to attain freedom.  Yet those who follow in Martin Luther King, Jr.’s intellectual footsteps today are fully prepared, if not chomping at the bit, to give up freedom for equality.  It’s become a flagrant battleground with freedom of speech, a great right provided no one’s feelings get hurt in the process, in which case it gets tossed out the window in a flash.

It’s much easier to argue for equality at the expense of freedom.  It’s a big, shiny bargaining chip, making every potential trade very attractive.  It may well offer the clearest, fastest path to equality.  But it’s a deal with the devil.  Give away freedom and your equality has lost some meaning.  Give away more freedom and equality is rendered worthless.  So what if we’re all equal, and all miserable, and all equally subservient to ordered?

Martin wouldn’t have bargained away freedom.  Who are you to advocate doing so?  Equality must be achieved, but never at the expense of freedom, as it’s freedom that makes equality so worthwhile a goal. 

Happy Martin Luther King Day, and honor his memory.  And see Gideon’s MLK Blawg Review #294.

Mark Bennett has written a  series of  posts  explaining why he exhorts his fellow Texas criminal defense lawyers to vote against a  state bar proposal to do away with flat fees.  The impetus of this proposal is somewhat obvious, the concern on the part of bar-types that lawyers are receiving fees for work they don’t do, which seems wrong.  It’s not.

The nature of criminal defense has always been different than others practice areas.  Our clients are different.   Their situation is different.  We, the lawyers who defend them, are different.  Rules that work fine for other niches don’t work at all. 

The basic notion is that in the normal course of affairs, we either get paid up front or don’t get paid at all.  The latter might be okay with some, who aren’t deeply concerned with lawyers getting paid, but they ignore the consequences.  If criminal defense lawyers don’t get paid, then no lawyer who like to eat will be able to sustain a practice as a criminal defense lawyer.  Whether we all run off to do real estate, or wills, or mergers and acquisitions (because their fees make complete sense) doesn’t matter.  We won’t do criminal defense, no matter how much we want to.  Our kids still need shoes on their feet.  That’s life.

Some will argue that our clients can pay in pieces like the clients in other litigation practices.  Not only is this untrue, but not even comparable.  Personal injury collects the fee from the proceeds of the case.  Corporations are an entirely different matter for obvious reasons.  In civil litigation, the lawyers can beg off anytime the bills aren’t paid, plus hold the file with their retaining lien as a bit of extortion to get the past due balances.

Criminal defense is different.  Once we’re in, we’re often stuck.  Even if we’re let out, we’ve just burned our client in the process, something few of us can, or want to, do.  As the judges tell us when we don’t get paid, that’s our problem, not hers.  “Proceed, counselor.”

There are some clients who can be billed for their fees, and have the wherewithal to pay and the desire to do so.  They are few and far between, as the vast majority of criminal defendants are poor, barely able to muster enough for their own subsistence.  Those in sufficiently better state that they can afford to retain private counsel are at the edge.  They have whatever they saved, put together from friends and relatives, and stuffed into their pocket.  But that’s it. 

Clients, in a spurt of irrational exuberance, make promises of future funds with the best of intentions.  They ask, “don’t you trust me?”  They mean well.  But they fail, almost invariably.  If I had a dime for every dime that was promised me, I would be rich.  Instead, I work for a living.

No decent criminal defense lawyer can live with himself if he’s not doing right by his client.  We fight because it’s a fight that needs to be made.  We compromise because it’s in the client’s best interest.  We can do this because money isn’t in issue; we are not in a conflict with our client.  This will change.

Just at the moment in their life when they need us most, legal fees will prove an impenetrable divide between lawyer and client.  They owe it and they don’t have it.  We are forced to choose whether to work for free or hurt a client.  This is an untenable situation.  This situation cannot happen without undermining our purpose for being lawyers.  Worse still, they don’t necessarily mean to stiff us on the fee, yet you can’t get blood from a rock.  The lawyer gets screwed and has to eat the loss.

With that as a future, who would want to practice criminal defense?  Who could afford to do so?  Without flat fees, there could be no viable private criminal defense bar, unless the lawyer happened to be heir to so vast a fortune that he never needed to make another dollar.  How many guys like that are around?

While the theoretical underpinnings of flat fees, such as the right to contract freely which would be available to everyone other than criminal defense lawyers, are worth arguing, there remains a fundamental point that can’t be ignored.  Without flat fees, there can be no private criminal defense bar.  Except for that one rich guy who does it for kicks.

That means that every criminal defendant except the wealthy (who can be billed because they’re, well, wealthy) will turn to “free” indigent defense. which means that we all pay for people who would otherwise pay for themselves, that our indigent defense services, already overwhelmed, would be even more overwhelmed, and that the future existence of a criminal defense bar would depend on the largesse of the government.  The day they cut off the fee spigot, there will be no more criminal defense lawyers.

Except for that one rich guy who doesn’t need the money.  He’ll be the last Texas criminal defense lawyer.  That’s it.

One of the questions asked by people who aren’t lawyers is why trial courts don’t deal with the big picture, like the introduction of scientifically flawed evidence, by allowing the defense to introduce testimony that the evidence routinely used to convict is crap. 

Lawyers are trained in materiality and relevance, and can explain the rationale. But the truth is, it’s because some judges lack the guts to take the lead, preferring instead to be part of the crowd, do as others have done before them and take no risk of being wrong.  Other judges refuse change because they’re pretty satisfied with the way things are now.  Many, perhaps the majority, sleep well at night knowing another defendant was convicted.  They don’t share your concern.

So when Texas Judge Kevin Fine decided to take on the big picture, whether the state could put a person to death based on flawed evidence, it was huge.  No judge had ever opened the doors so wide before.

Then bam.  The Texas Court of Criminal Appeals slammed the door shut.  Slamming doors shut is something of a favorite of Presiding Judge, Sharon “Killer” Keller.  But like a good court,  the opinion expressed the court’s ruling in lawyerly words.

The 6-2 decision agreed with the district attorney’s office that there is no basis under Texas law to conduct a pretrial hearing to determine the constitutionality of a law.

In addition to saying Green did not have standing to object, the court repeatedly said that the Legislature, not the trial court, is the proper venue for a debate on capital punishment.

“These are indeed weighty public policy issues, greatly deserving of considerable debate by the appropriate people, in the appropriate forum, and at the appropriate time,” according to the opinion.

Of course, the judges are well aware that the “weighty policy issues” have nothing to do with the issues being presented to Judge Fine.  Legislatures will argue whether people need killing, and whether their constituents will vote for them it they support killing or not.  How they get to the killing isn’t their concern.  That’s for the courts to decide.

Except when a court tried to decide, it was shut down.

In the case of John Edward Green, in whose name all of this is happening for the benefit of the rest of us as well as him, a trial will be had.  During the trial, issues may be raised about the quality and validity of the evidence being used to convict him.  Those issues will be constrained by the concepts of materiality and relevance.  That’s how evidence works. 

Should Green be convicted of murder, the death penalty will be the focus of punishment.  By then, however, the questions of whether a person can be constitutionally put to death based on crap evidence will be moot because he’s already been convicted of the crime. 

The Texas Court of Criminal Appeals knows that Judge Kevin Fine was doing the unthinkable, putting it all together in one place, at one time, so he could make a decision based on the big picture.  They know that the law makes no provision to allow this to happen.  Under our scheme, we don’t admit that the process developed over centuries with the incremental approval of judge after judge is flawed.  Since we don’t admit it, there’s no reason to have a legal process to correct it.

While it’s true that the legislative branch of government could correct all of the problems and issues that were being presented to Judge Fine, that’s not its job.  The Legislature is a representative body, existing to satisfy the whims of the majority.  The judicial branch exists as a check on the whims of the majority.  To fulfill this purpose, the judicial branch would have to be allowed the opportunity to hear what problems might exist with these whims.  Judge Fine was bold enough to take it on.

The Texas Court of Appeals says that the issues that were being raised and presented to Judge Fine could be resolved at “the appropriate time.”  They say this knowing that there will never be an appropriate time.  Case closed.

When the story appeared in the Daily News, it was more cringe-inducing than anything else.  O.J. Simpson was a closed chapter in legal history,  Dead and buried.  So too was F. Lee Bailey, the one-time Dream Teamer who has since been disbarred, but he’s apparently determined not to stay that way.

In a 46-page document posted on the website of his consulting firm, F. Lee Bailey wrote that he had additional evidence that would finally erase all doubt about the Heisman trophy winner’s innocence.

“The facts offered here are either largely unchallenged, or much more persuasive than those contrary views which have been argued,” he promised.

That’s quite a promise.  Of course, it’s easy to promise. Delivering is another matter.

The 77-year-old lawyer says that despite what the public may believe about his former client, Simpson wasn’t the type of person to use “raging violence to solve his emotional problems.”

“O.J. – apart from the infliction of injury on Nicole – has no history of resorting to raging violence to solve his emotional problems,” Bailey wrote in the documents, adding that a psychiatrist agreed the former football star had never been psychotic.

Not persuaded yet?  Then chances aren’t good that the beef of Bailey’s argument will win you over, that there were “witnesses” who never testified, which Bailey believes to be a huge mistake on Johnny Cochran’s part (notwithstanding the small detail that he won the acquittal).

*Testimony of Tom Lang, a dog walker, who said he saw a blonde woman arguing with a man near a white pickup truck on the night of a murder with another man crouching 70 feet away. He said he didn’t think anything of it, until he learned of the murder.

*A key witness, Keith Douglas Zlomsowitch, was never called, though Bailey claims Zlomsowitch would have testified that Simpson wasn’t jealous of other men’s relationships with his ex-wife. “The public never heard from Zlomsowitch, even though his testimony would have posed a powerful contradiction to the prosecution’s only claim of motive: that Simpson killed Nicole because of a jealous rage. We had him under subpoena and were prepared to call him, but like so much other critical evidence, the threat of further erosion of the jury was just too great,” he said.

Inexplicably, there’s no mention of O.J.’s Bronco mechanic or the postman at Nicole’s apartment complex. 

This is just embarrassing.  Regardless of what one thinks of O.J., and it remains one of those iconic cases where everyone seems to have an opinion of his guilt or innocence (thought mostly guilt) despite having no actual knowledge, the notion that anybody wants to exhume the case now is bizarre.

According to the Daily News, F. Lee Bailey thinks people are now, more than 15 years after the acquittal, open to new information that will change their view of Simpson.  The 33 years he’s serving doesn’t seem to enter into the equation.

Bailey said he didn’t publish the evidence to clear his client in the public eye because he felt people were too biased following the explosive trial.

“I had always decided to move forward, but was convinced it would take time until anyone has an open mind,” he said.

Why that time is now is unexplained, but based upon the reception his explosive disclosures have received, he may need to get a new watch. 

Seriously, this obviously isn’t about O.J. Simpson, whose legacy is etched in stone whether rightly or wrongly.  This is about F. Lee Bailey, one of a handful of lawyers who have become household names in America.  That’s nothing to sneeze at.  But at 77, and despite his own legal issues, Bailey is not ready to be put on the sled and dragged out to the woods just yet.

It may be that he needs some money and the new consulting biz isn’t paying off as well as hoped.  Maybe another book will do the trick, but there needs to be some demand, some interest, to generate an advance.  Would a new take on O.J., Bailey’s last big case do the trick?

The problem is that his position on the pedestal is at risk.  Sure, being atop a pedestal doesn’t pay well, but that’s a sacrifice one has to make to maintain a legacy.  Then again, legacies don’t pay as well as they used to.  Just ask O.J.

The upshot of this effort, particularly when combined with the multitude of other problems Bailey has faced, is that he’s not likely to do much to make a buck, free O.J. or help his badly tarnished public image.  Lose, lose, lose is a terrible way for a lawyer who had been such a powerhouse at one time to go out, but reopening O.J., on skimpy (to be kind) evidence, isn’t going to save him.

And there aren’t a lot of criminal defense lawyers around who can lay claim to being a household name.  If F. Lee Bailey can’t make a buck off his stories, at least he can keep his dignity so he has something to leave behind.

H/T Above the Law

The call came in just after 5 p.m., as I was dotting “i”s and crossing “t”s and preparing to wrap it up for the day.  She informed me that she needed a lawyer to represent her in a “petite” larceny.  Not being able to discern her stature over the phone, I took her word for it.  She told me she found me on Avvo.

I apologized, and informed her that it wasn’t the sort of criminal defense work I did.  “Petite” larceny wasn’t my thing, unless she happened to murder a few people in the process or was CEO of a multinational.  That’s just my cute way of saying that her case wasn’t serious enough for me, a concept which I agree is arrogant but, sad truth told, realistic. 

She started screaming at me, “But you’re a criminal lawyer. You must take my case!”  I began saying, “I’m sorry, but,” and got no farther.  She was raging about my duty to defend her.  Avvo said so.  Avvo said I was a criminal defense lawyer, and she was a criminal defendant.  Therefore, I had no choice in her mind.

According to twitter, the internet is all about marketing.  Though that’s not my belief, nor that of many others, the message remains loud and strong, ringing in the ears of consumers who seek to use it for their purchasing decisions.  Including consumers of legal services.

From my lawyer perspective, obviously no relationship is established by dint of my happy face being visible on Avvo.  The same is true of my having a website and a blawg.  I may be here, but that doesn’t mean that anyone who stumbles in is my client, a person to whom I owe a duty of representation.

But that doesn’t mean the consumer of legal services shares my understanding.  Clearly, the woman who was irate with me for not being willing to sell my services to her, to take her case, an obligation she believed existed merely because she found me on the internet,

Her rationale was that I held myself out to be a criminal defense lawyer.  I was selling.  She was buying. That was that.  Contrary to what some might think, I don’t enjoy fighting with people.  I didn’t want to have this woman I don’t know furious with me, screaming at me on the telephone.  But given the way that lawyers market themselves, it’s not exactly surprising that she believed she was in the right. 

After I finally disengaged from this very unpleasant telephone call, the woman no happier with me at the end of the call as she remained unconvinced that I didn’t have to represent her upon demand, I pondered what I could do to avoid another confrontation.

My thoughts first turned to Avvo, where  my profile lists me as doing 50% criminal defense and 50% white collar defense, with a graphic to prove it to those for whom reading is problematic.  Neither is really accurate, and I despise the phrase “white collar defense,” but Avvo’s practice choices ram it down my throat.  Having had this discussion with Mark Britton, Avvo’s CEO, previously, I had added into my profile language noting that my practice was limited to “the defense of while collar and serious criminal accusations at investigative, trial and appeal stages in state and federal courts.”

I struggled with what to say to stop the calls from coming by nice folks who got nabbed for shoplifting, or peeing in the park, or riding their bicycles on the sidewalk.  Those are the people who tend to call me from Avvo, and while I appreciate that they are trying to find a lawyer to represent them, I’m not their guy.  I don’t want to be arrogant or mean about it.  I’m not suggesting that they are unworthy of a defense, or that their cases are too trivial.  I’m merely saying that I’m not the lawyer they’re looking for. 

Perhaps part of the problem is that people look at the graphic, the part of Avvo that lists lawyers in such broad categories as to invite confusion that I’ve tried to avoid by including more specific information to let them know that I don’t do shoplifting defense.  If Avvo was to take the category of criminal defense and break it up into three categories, for example, of misdemeanor, felony and serious felony, it might help to clarify?

My guess is it would work for some, but not for the nice woman who grew irate with me.  She might have had a misdemeanor, but she wanted the best lawyer the internet had to offer.  If there was a “most serious felony ever in the world” category, that’s where she would have look for a lawyer to defend her.  Even though she had (yet) to murder anyone.

Still, this wouldn’t address the problem of people on the internet deciding that an attorney client relationship exists merely because they decided that they want me to be their lawyer.  This isn’t the first time this has happened.  I once got a call from a court clerk asking where I was, a defendant having informed the court that I represented him even though I had never spoken with the defendant and had no clue who he was.  It was surreal, and embarrassing. I didn’t want the judge to think the defendant was nuts, but the defendant was nuts.

It doesn’t require a great deal of sophistication for a potential client to realize that no relationship is established merely because they stumbled across a website or Avvo profile, but as more people use the internet to go lawyer shopping, the likelihood of such mistakes increases.  Nobody wants to deal with angry, screaming people on the telephone as their closing up shop for the day.  I know I don’t. 

Yet they see our existence on the internet as a promise of availability to them, of the creation of a relationship based solely on their decision to purchase.  That’s the problem when lawyers hold themselves out for sale.

It’s a scary, threatening symbol, found on hats and tats of its members.  Not the sort of people you would care to run into on dark night or a lonely street corner.  There’s a name that goes along with the long-toothed skull.  The Punishers.  Would it surprise anyone that this group, this gang, is terrorizing the streets of Milwaukee?

It surprised Edward Flynn, the Chief of Police.  From the Milwaukee Journal Sentinel :

Police Chief Edward Flynn declined to be interviewed, but issued a statement Wednesday, calling the Punishers a “rumor.”

“Since 2005 there have been rumors of the existence of an organized group of officers engaged in vigilante-style activity calling themselves ‘The Punishers.’ There are indications that an investigation took place into these rumors prior to 2008,” Flynn’s statement said.

“I directed the Professional Performance Division in 2008 to conduct a thorough investigation. PPD interviewed a number of officers, they reviewed the complaint file and could find no evidence that such an organized group ever existed nor is there any record of citizen complaints to any local or federal authority regarding the activities alleged.”

Not exactly.

Shortly after Frank Jude Jr. was beaten, a Milwaukee Police Department commander investigated a suspected rogue group of officers known as “the Punishers,” who wore black gloves and caps embossed with skull emblems while on patrol, according to newly released documents.

Capt. James Galezewski examined what his report calls a “gang,” first in 2005 and again in 2007. The police academy supervisor concluded both times the Punishers represented a danger that warranted further investigation and action by the department, according to documents newly unsealed in Jude’s federal civil rights lawsuit against the city.

“This is a group of rogue officers within our agency who I would characterize as brutal and abusive,” Galezewski wrote in a December 2007 report.

The distinguishing feature of this gang, aside from the long-toothed skull, is that they all had shields.  And like any gang, they had to be careful in recruiting only members who fit their mold.  Where better to find them than in the police academy, where young minds are molded.

In 2007, Galezewski learned a police recruit had a tattoo of the Punisher logo, a skull with long teeth. The recruit – whose name was blacked out in reports at the urging of the city attorney’s office before the documents were unsealed – had been acting arrogantly in police academy classes, Galezewski wrote in his 2007 report.

Galezewski wrote the tattoo demonstrated the recruit posed a danger: “He is sending a clear message that he has every intention of exercising his authority as a police officer in an inappropriate and abusive way, and in my judgment, it would be irresponsible to allow him that opportunity.”

Galezewski recommended the recruit be fired. He was not and remains on the force as an officer, according to court documents, in which his name was blacked out.

This is the stuff of top of the line grade B movies, the type of action flicks that teenagers and lonely men enjoy immensely as the tattooed heroes show their machismo by beating people mercilessly.  Except this wasn’t the film, and was happening in a place like Milwaukee, where locals still sing polkas at Friday night fish fries.  Where movies, and Marvel comic books, are taken seriously.

Somehow, Galezewski’s findings never made their way to a subsequent report by Deputy Inspector Mary Hoerig of the Professional Performance Division, Nobody apparently noticed the long-toothed skull with the number 7 on the locker of Andrew Spengler, the cop who was convicted of beating Jude.  Or the same skull with long teeth tattooed on Jon Bartlett, another cop also convicted of the beating.

The notion that this both existed, and existed since 2005 (a year after the Punisher movie came out) is beyond shocking.  That a gang of rogue police officers, dedicated to taking vengeance into their own hands a meting out their own brand of “justice” should rock a city, rock a police department.  There should be no higher priority than to ascertain the existence of such a gang, and shut it down hard and fast, as it is not only outrageously criminal and wrong, but fundamentally contrary to the purposes of law enforcement.

And yet the police chief, despite the information that has since been revealed by Jude’s federal action and the disclosure of Galezewski’s report, says it was merely a rumor. 

When last I was in Milwaukee, we had dinner in a restaurant that lit up when the accordion player sang, “In heaven there is no beer (NO Beer!). that’s why we drink it here.”  The song was cheerful and gay.  Now I can’t help but wonder whether anyone lifting their mug high had a tattoo on their arm of a long-toothed skull.  Last time, I didn’t look.  Next time, I will.

More importantly, it serves to give a far deeper understanding of the risk faced by lawyers like Eric Brittain who stand up to the Milwaukee police department.  They may not be too good at investigating their cops, but they are right on top of going after criminal defense lawyers who challenge corruption. 

It goes without saying that no normal person reads the terms of service of any website or ISP used on the internet.  (Yes, I know you do.  I said “normal.”)  Buried in the verbiage is their right to disclose your private information in response to a court order.  Nowhere does it require them to challenge the court order. 

It’s not that orders can’t be challenged, but that they have no reason to do so.  It’s not their private information at stake, but yours, mine, ours.  The closest they have to a horse in the race is any repercussions should they be lambasted for having been so weak as to ask the government agents if they would like cream in their coffee as they rifle through your life.

From the hearts and minds of corporate counsel, the incentive system is clear.  Why go through the expense, both in money and goodwill, of fighting the government over something that has no upside for the enterprise.  This is standard operating procedure in corporate legal to curry favor with the government when it costs nothing, and hopefully collect the interest when the day comes that the government is looking askance at them.  Regardless, there’s never a good reason to pick a fight with the government over someone else’s problem.

And why should they?

Because the path of least resistance, and greatest potential benefit in the future, is the same path that encourages the government to continue pursuing the course of using internet enterprises that collect our private data as an easy means of government surveillance. The telephone companies have long embraced the government as eavesdropping partners, and as tech develops, new friends are added to the fold.

As noted at the Legal Satyricon, when a subpoena shows up at the digital doorstep, it usually includes a gag order that precludes the recipient (the third party ISP, for example, that maintains the information sought) from disclosing the order to the target.  The target of the subpoena, thus, has no clue that there is a demand for private information and can’t take action to quash the subpoena.  The ISP, on the other hand, accepts the subpoena and, shrugging its shoulders, hands over the private information without hesitation.

But not Twitter.

To Twitter’s credit, the company didn’t just open up its database, find the information the feds were seeking (such as the IP and e-mail addresses used by the targets) and quietly continue on with building new features. Instead the company successfully challenged the gag order in court, and then told the targets their data was being requested, giving them time to try and quash the order themselves.

This is both curious (to put it mildly) and inspiring.  Well-established corporations, raking in huge profits and far better capable of standing up to the government, routinely cave as soon as the fellow at the door says, “I’m from the FBI.”  Twitter is still in the hand-to-mouth phase, yet made the decision to say “no”.  Why?

By standing up for its users, Twitter showed guts and principles. Much of it is likely attributable to Twitter’s general counsel Alexander Macgillivray. As security and privacy blogger Christopher Soghoian notes, Macgillivray was one of the first law students at Harvards’ Berkman internet law center and at in his previous job at Google “played a major role in getting the company to contribute takedown requests to chillingeffects.org.”

Macgillivray declined to comment to Wired.com through Twitter’s spokeswoman.

There isn’t a criminal law specialist at major law firm in this country who would have advised this fledgling behemoth to fight the government.  There isn’t a former associate fed into the corporate counsel system who would have stood tall.  Despite the inability to offer straight advice at almost any other juncture, on their they would universally agree:  Don’t piss off the government to save someone else’s butt.  Not one.  Well, maybe one.

Alexander Macgillivray must not have gotten the memo.  Instead of stepping onto the slippery slope of government obsequiousness and risk aversion,   What was he thinking?  Princeton and Harvard Law educated, with some Silicon Valley law firm time behind him before he jumped to Google, then Twitter, one might expect him to toe the line, know his place, advise his enterprise to not make waves.

Instead, he took a stand and protected the privacy of twitter users. 

For all the bravado of the brash internet folks who are the holders of every detail of our lives, that they are different,  digital nihilists who laugh at authority and scorn conformity, the equation changes when it’s their brand new Ferraris at risk. 

Twitter has yet to turn a profit, though, so it’s unclear how many Ferraris sit in their parking lot.  If for no other reason than this, Alexander Macgillivray’s decision to stand up to the government and say no on behalf of all those users who, inexplicably, believe that there is someone out there with the guts not to bend over whenever the government asks, I hope they have a parking lot filled with Ferraris.  I hope Macgillivray gets a red one.  If that’s what he wants.

Regardless of whether one finds Twitter’s services critical to the future of humanity or a fun way to kill a few minutes, this bold move speaks well of the heart and guts of those in control, and should embarrass the hell out of all those pseudo-cool digital executives who have traded in their flip-flops for wingtips. 

That’s right, the list has been updated.  Are you on it?  If not, then why are you wasting your life?

Not sure what the list is? 

Wild Men. Wild Women. They love Value. And Quality. And Stepping Up. Wild Men and Women are people who listen only to the little voice in their head. They get things done. They build things. They don’t care what you think. Uncertainty and turbulence–in the economy, stock markets, governments, the weather, you name it–only get their juices flowing.

You don’t have to know about the list to make it.  You just have do whatever you have to do, and if there’s something to prove you existed by the end of the day, you may be on the list. 

So who’s on the list?

1. Ben Franklin
2. Ted Turner
3. Dr. Johnson
4. Dr. Thompson
5. Theodore Roosevelt (yes, he was wild)
6. Andrew Jackson
7. Ayn Rand
8. Ana Marie Cox
9. Boudica
10. Dustin Hoffman
11. Winston Churchill
12. Benjamin Disraeli
13. Arianna Huffington
14. Bucky Fuller
15. Jerry Lee Lewis

This is Ted. He’s never cared what you think.

16. Bill Buckley
17. Bill Clinton
18. Steve Jobs
19. Captain Harry (Charleston SC fishing/hunting guide)
20. Welsh and Irish guys when they’re sober
21. Nick Nolte
22. Ernie from Glen Burnie (DC lawyer, alias of WAC? childhood friend)
23. Christopher Columbus
24. Jann Wenner
25. Sean Penn
26. Ken Wilbur
27. Plato
28. Catherine the Great
29. Val Kilmer (way wilder than Jim Morrison)
30. Harry Dean Stanton
31. Scott Greenfield
32. Julius Caesar
33. Pete Seeger
34. John Lennon
35. Joseph P. Kennedy, Sr.
36. Peter Sheridan
37. Christopher Hitchens
38. Craig Young, Bush Pilot
39. Warren Beatty
40. The waitress at Kelly’s who poured beer on me. Twice.
41. John the Baptist
42. Rahm Emanuel
43. Robert Mitchum
44. Joan of Arc
45. Dylan Thomas
46. George Kaufman
46. “E”
47. Boswell (he was wild, too)
48. Ben Jonson
49. Mae West
50. Daniel Pinchbeck
51. Daniel O’Connell
53. Robert Johnson
54. Pima County, Arizona Sheriff Clarence W. Dupnik.
55. St. John of Patmos
56. John Henry “Doc” Holliday

Check the list again.  If your name isn’t there, ask yourself why.  Better still, ask yourself at some point during your morning routine why you’re bothering if you have no intention of making yourself matter today. Just go back to bed.

And if you’re not on the list, then nobody cares who you think should (or shouldn’t) be on it. You don’t get a vote.