If there’s any common denominator in the commission of crimes, it’s that they reflect a terrible error in judgment.  Not all, but most.  Here’s a pretty good example.

Andrew John Bornen, 16, was lying handcuffed and face-down on a busy suburban roadway in the Ipswich suburb of Brassall when he was struck and killed by a car on February 7, 2009.

His heart, aorta and pulmonary trunk were ruptured and he died before an ambulance arrived six minutes later.  Officers had forced the Ipswich teen down after reports a youth was armed with a machete in the area.

However, Andrew was only carrying a baseball bat when he was confronted by police and an inquest found he had not been acting aggressively.

Maybe the car that ran over Bornen would have seen him, lying there handcuffed, face down, in the roadway, but for the headlights of the police care shining into the eyes of oncoming traffic. 

State Coroner Michael Barnes called the police conduct “a terrible error in judgment.”  Ding, ding, ding.  Where have we heard that before?  For once, the government felt compassion.

The director of public prosecutions, Tony Moynihan SC, said he had carefully considered evidence that would be admissible in any trial.

‘‘There is no suggestion that the police officers were acting unlawfully or not in the execution of their duty in arresting Andrew Bornen who was intoxicated and armed in public,’’ Mr Moynihan said in a statement.

‘‘Given the momentary opportunity the police officers had to assess and act in this situation, the efforts made to alert the driver of the vehicle and the contribution of the driver of the vehicle which ran over and killed Mr Bornen, there is no reasonable prospect of a conviction.’’

Oddly, that rationale applies with enormous frequency to terrible errors in judgment.  People are confronted with unusual, even volatile situations with which they are ill-prepared to assess, and are constrained to make snap decisions about their behavior.  Like whether to stand, run or shoot. 

Police are trained to do police-type stuff.  Regular people are trained to do fingerpainting, sometimes physics.  They aren’t trained to handle threats, violence, potentially dangerous conditions that may threaten life and limb.  Hard as it is to imagine, people find themselves in difficult, sometimes confounding situations, demanding immediate reactions.  Sometimes, their choice is a mistake. Often, they can’t quite explain why they made a particular choice, except that something had to be done and they responded. 

Sometimes, when confronted by these crazy scenarios, they make terrible errors in judgment.  This is one of the reasons I urge everyone to have a criminal defense lawyer standing by their side at all times.  Unfortunately, not everyone heeds my advice.

Of course, in most instances, the decision made in the heat of the moment, under the most arduous and unanticipated of circumstances, will be reviewed at enormous leisure and with deep deliberation by people who have the luxury of sitting at a desk or on a bench, and can decide whether the choice made is the best one possible.  The law demands much of us, good judgment included.

For the two of you who haven’t realized it as yet, this terrible error in judgment occurred in Australia, where everything happens upside down.  Don’t think you can adopt this argument for your clients, that their choice was merely a terrible error in judgment and not the product of an evil person.  That only works if you can utter the argument in an Aussie accent.  And if your client happens to be a cop.

H/T Turley

It’s a far more serious problem than people realize, and it’s about time that the American Bar Association recognized it and dealt with it.  Given that lives hang in the balance, the ABA has  established a committee.

The question of whether the role of the criminal defense lawyer has been affected by the U.S. Supreme Court ruling in Padilla v. Kentucky, 08–651, will be the focus of a task force established last week by the American Bar Association’s criminal justice section.

The goal is to explore the obligations on lawyers to advise clients about the consequences of criminal convictions and help criminal defense lawyers understand and meet those responsibilities.

Ms. Schreibersdorf said that since October 2009, she has hired two immigration attorneys who are available to the office’s lawyers to provide advice about the possible adverse immigration consequences of pleas.

Robin Steinberg, the executive director of the Bronx Defenders, said her office for many years has had four immigration attorneys available to advise its defense attorneys on immigration issues.

In some instances, she said, such as where a prosecutor makes a plea offer at arraignment, the office’s lawyer needs accurate information immediately. The four immigration lawyers are scheduled to be on call for set periods, including night arraignments, she said.

This doesn’t help the private bar, of course, since they can’t keep lawyers on staff just in case.  Then again, that’s why the United States Department of Justice  put out a handy-dandy  92 page pocket reference on immigration consequences.

Of course, nobody has even begun to figure out the interstate implications of sex offender registry warnings in advance of a plea.  There are just way too many bridges under which they may be forced to sleep some day.

Obviously, I am in awe of the importance of the ABA in the daily practice of law for criminal defense lawyers across the nation.  It’s therefore not entirely surprising that for the past two decades, lawyers stood in court drooling rather than advising their clients, whether it was their Padilla duty to do so or not, that the quickie plea would mean they could never see their children again.  After all, if the ABA doesn’t tell them, how can they be expected to know that they should explain everything that affects the decision to their clients, as if they were real lawyers and actually gave a damn.

I speculate that this blue ribbon task forces arrives at the conclusion that it would be really cool if lawyers explained to defendants what they are getting into, and that might mean that those lawyers who spent the past two decades awaiting the word of the ABA before treading into such dangerous waters as competency, will have to change the way they practice.  But once they do that, maybe they can figure out how lawyers are supposed to stay abreast of every change and permutation, federal, state and local, of non-criminal, life-changing consequences dumped on top of whatever criminal sentence a court might impose?

Better still, maybe the ABA, composed of so many powerful and persuasive people, could refocus its task force on the propriety of using collateral consequences dreamed up by every hillbilly legislator and congressman, to create secret punishments to be named after dead children or trotted out for the next campaign?  Yeah, I’m sure that’s the next task force on their list. 

Being a cutting edge blawger, and therefore infallibly knowledgeable about all things social media, it struck me as critical that I keep abreast of trends in the coming year.  After all, did I not move from LPs to 8 tracks almost immediately? 

My journey began at Social Media Today, which bills itself as the “web’s best thinkers on social media.”  I want to hear from the best thinkers, so I turned to Eric Rice.

Propelled by one billion peer users, social media has become the fastest growing marketing medium in the U.S. — nonetheless, the much-anticipated monetization of social media remains an unrealized quest for the Holy Grail. Legions of traditional marketers have predictably descended upon Facebook, Twitter, and countless blogs with transparent greed, but have largely failed to monetize social media, due to clumsy efforts that violate peer-to-peer trust etiquette.

However, for lawyers, professionals who stand to benefit from blogging, I predict that the use of blogs by law firms will increase slightly. Blogs serve the dual purpose of increasing a law firm’s search engine rankings while showcasing the firm’s legal expertise. However, legal blogging will not be as popular as was in year’s past and rate of the deployment of new law blogs will slowly begin to decline in 2011.

Twitter use by attorneys will either remain steady or decline, while their participation on Facebook and LinkedIn will increase drastically. This is because the functionality of Twitter is changing and is used to share information rather than interact. I predict that lawyers will flock toward sites that allow them to interact and network and thus Twitter use will decline.

And now I feel pretty darned foolish for not having sought out Facebook friends to demonstrate my social media prominence.  Then there was the guy named Gabe Acevedo.  I have no clue who he is or why anyone would care what he has to say, but he’s got a column on Above The Law, and David Lat would never give someone a column unless he really knew what he was talking about.

The big secret with social media is that it’s not easy. In fact, it can be hard work. One needs to build an online audience, find or write entertaining content, link to others, and most of all keep at it. There is no magic formula. You can’t just sign on to Twitter or start a Facebook page and expect to turn into Adrian Dayton, although I’m sure many of us would if we could.

It didn’t strike me as being unduly difficult to become a laid-off lawyer of 8 months tenure who reinvented himself as a twitter expert, but then, Gabe must know stuff because he’s on ATL telling lawyers how to be more like him.

That said, you can certainly use social media to enhance your career. To be honest, I started my e-discovery blog mainly so I could tell people I had a blog. I was working as a legal recruiter for a small outfit in 2008, and I thought having a blog might help distinguish my company from the competition. I figured I would give it two weeks or so and see how things went.

Before I knew it, lawyers from across the country began to contact me for my opinion on e-discovery “trends.” This encouraged me to keep at it. In addition, I was learning a lot more about e-discovery because I was constantly researching the topic. As a result, I was able to speak with more authority on the matter, with my clients and potential clients.

Sorry. I thought he was a lawyer, since he’s telling lawyers how to use SM to enhance their career. My mistake.

Here’s my predictions.  Unless you’re in a discrete niche practice (like Dan Harris’ China Law) or a very small market where people can’t otherwise find you, social media will fill the time of your day that would otherwise be spent playing spider solitaire.  Niki is right that twitter is fading, as people realize that it’s boring and you don’t “network” with anyone you would talk to in real life anyway.

People who like to write will continue to write.  People who want to read what other people write will continue to read.  Nobody will get rich off either writing or reading.  As more people become aware of both, the quality of content, both posts and comments, will continue to go down and the deception will increase.  It won’t really matter, however, since it never really mattered.

Lawyers who are both skilled and provide excellent service to their clients will continue to have successful practices, regardless of whether they blawg, twit or maintain a lot of Facebook friends.  Some will have Blackberries. Some will have iPads.  Some will have legal pads. These are just the tools, not the goals, of practicing law.  I predict that all will have pens in the coming year.

In the coming year, law schools will continue to produce tens of thousands of graduates more than can be absorbed in the practice or needed by society.  They will join the ranks of the currently unemployed, and those who are more ambitious, scurrying for $500 felonies, then blowing the cases on quick pleas while oozing angst over their having lost another poor innocent to the vicious system. 

They will all be on twitter proclaiming what great lawyers they are, bolstered by those oldsters who want to curry favor with the baby lawyers to prove they’re hip and pretend their relevant, who struggle to keep abreast of their own practice of $500 felony pleas.  Every new lawyer will have a shiny iPad and flip flops.  They will kvell every time someone notices they exist, then demand their due respect for having 24/7 internet access.

In the coming year, the swarm of legal marketers that has descended upon all things social media will disappear, trying to get back their former position as assistant manager at Dairy Queen (apologies to Mister Softee), as they finally realize that the people who might be tricked into using their services have no money left.

I predict in 2011, people will pay more attention to Dan Hull at  What About Clients?   They will toughen up, start putting their integrity and effort ahead of shiny electronic objects, and realize that neither whining, work/life balance nor political correctness are going to pay their bills nor save their clients.  They will stop embracing meaningless words and ideas that justify their belief that the legal profession is all about making themselves happy. 

Of course, I’ve been wrong before.

USA Today has an article on what it calls the least recognized consequence of prosecutorial misconduct, that it puts criminals back on the streets to commit crime again.

We all know someone who has died.  Some of us know a young person who died.  We know it’s different.

George Washington Law Professor  Jonathan Turley writes of the passing of a 1L in his evening class, Eric Fatla.  The first time I heard the name was on Christmas day, when Turley  passed along information of a terrible accident, his student falling four stories at the Union Club in Chicago and suffering traumatic brain injury.  He reflects on this young man.

When I first learned of Eric’s fall on Christmas Eve, I was heading to Midnight Mass with my kids. I sat at St. Mary’s of the Lake trying to comprehend the incomprehensible loss of a person so young and so full of life. Eric had already accomplished more than most people accomplish in a lifetime. He had gone to China on a research project, gone to Honduras as an election monitor, and worked in Congress as a staffer. He was currently with a lobbying and law firm while attending class in the evenings.

He told his Dad about his “five-year-plan,” which included finding a wife and having children. Ever since Eric almost died of a brain hemorrhage in high school, he led a purposeful and active life. He was constantly in motion — planning new adventures and organizing his life with precision and passion. He was a unique and extraordinary person.

For every door that technology opens, there seems to be a corresponding opportunity for a prosecutor somewhere to find a new crime.  In Rochester Hills, Michigan, Leon Walker will find out whether reading his wife’s email is enough of a reason to spend five years as a guest of the state.

From The Detroit Free Press :

Oakland County prosecutors, relying on a Michigan statute typically used to prosecute crimes such as identity theft or stealing trade secrets, have charged Leon Walker, 33, with a felony after he logged onto a laptop in the home he shared with his wife, Clara Walker.

Using her password, he accessed her Gmail account and learned she was having an affair. He now is facing a Feb. 7 trial. She filed for divorce, which was finalized earlier this month.

That there is a law prohibiting the access, without authorization or in excess of authorization, the emails of another isn’t particularly controversial.  Hackers would do so, and no one would complain that they shouldn’t be prohibited upon pain of criminal sanction.  But this was a husband on a shared computer.

Oakland County Prosecutor Jessica Cooper defended her decision to charge Leon Walker.

“The guy is a hacker,” Cooper said in a voice mail response to the Free Press last week. “It was password protected, he had wonderful skills, and was highly trained. Then he downloaded them and used them in a very contentious way.”

Walker used the emails, about his wife having an affair with her second husband, who was abusive, by providing them to her first husband who was the father of their child who, according to Walker, might be at risk.  Leon Walker said he did what he had to do.  The story is a bit too convoluted to get any sense of whether he was really protecting a child or angry about being cuckolded.  It provides little basis to suggest that the son of the wife and first husband was at actual risk.

Naturally, Walker’s lawyer thinks the prosecution is out of its mind.

Walker’s defense attorney, Leon Weiss, said Cooper is “dead wrong” on the law.

“I’ve been a defense attorney for 34 years and I’ve never seen anything like this,” he said. “This is a hacking statute, the kind of statute they use if you try to break into a government system or private business for some nefarious purpose. It’s to protect against identity fraud, to keep somebody from taking somebody’s intellectual property or trade secrets.

“I have to ask: ‘Don’t the prosecutors have more important things to do with their time?’ “

An interesting but irrelevant question.  The prosecution doesn’t require defense counsel’s approval to bring charges.  The problem isn’t that the broader rationale for the law is stop outside hackers, but whether a spouse can be a “hacker.”  Aren’t wives allowed to keep secrets from husbands?  Even third husbands?

The fact pattern suggests that this isn’t likely to be the best test case for such an extension of law, criminalizing access between spouses.  This was a shared computer, and the wife kept her passwords in a small book next to the computer.  This hardly seems to suggest that she demonstrated an intent to keep her email private, given that access was readily available.

On the other hand, what exactly does a person have to do to maintain privacy from a spouse?  Separate computers?  Double secret passwords?

This is a far bigger issue than would appear to many, given that electronic communications play a significant role in divorces.

About 45% of divorce cases involve some snooping — and gathering — of e-mail, Facebook and other online material, Lane said.

If you want to find out if your spouse is doing you wrong, chances are awfully good that the proof is on the computer.

On the other hand, many of us allow our spouses unfettered access to our personal email.  It’s less that we have nothing to hide, than that our email is so boring that we can only hope someone else will read it and save us the trauma.  But then, there always remains the potential that something will appear in our inbox that we prefer to keep to ourselves, for whatever reason.

As electronic communications are not going away soon, it should be anticipated that there will be both new laws criminalizing related conduct (usually after some high profile tragedy that wouldn’t be affected by the new law), and extensions of existing law to cover unanticipated scenarios. 

While I would expect that Leon Walker’s defense is on solid footing, I can’t help but wonder why this statute shouldn’t apply to protect the confidence of one spouse against another.  Whether it should be criminal, or how criminal, is another matter, but if it isn’t criminal, what’s the solution to maintaining personal privacy, even from a spouse, in the digital age?

According to the heads on the television news, twenty inches of snow fell since the blizzard of ’10 began. Not having gone outside to check, I can neither confirm nor deny.  It makes no difference.  Whatever fell, fell.  And it’s falling still, as the wind continues to blow.

One of the things that distinguishes people is whether they’re proactive or reactive.  It’s always been my view that we take charge of our lives and circumstances, rather than let circumstances dictate how our lives will be.  This isn’t meant as a commentary on free will, but rather a reason to wake up in the morning and get out of bed.  Maybe we are destined to get up and out, and maybe we make the choice for ourselves. 

But there’s nothing like a snow storm to remind us that that there are forces great than us, greater than governments, greater than our politics or philosophies.  We tend to get very puffy about our beliefs, as if they matter more than anything else.  They don’t matter a whit to snow.

After the disastrous Giants loss to Green Bay yesterday, Dr. SJ informed me that it would be a wise idea to do some snow shoveling.  It was certainly piling up, and her thought was that I should jump on top of it and make a dent before it grew to such large proportions that we would have to wait for spring to get out of the house.  My initial reaction was that she just wanted to pay me back for giving her a snow shovel for Christmas.

I told her that it was a fruitless gesture.  Given the high winds and ongoing snow, whatever I removed would be swiftly replaced by nature, as the wind blew snow into the void. Nature abhors a vacuum, I explained.  My knowledge of physics seems to improve whenever it works to my advantage.

She put on her coat, gloves and hat and went outside to shovel.  She did a fine job of it.  I felt awfully badly watching her working so hard, as I drank my hot chocolate with those tiny marshmallows covering the top surface of the mug.  She came in, glistening from the snow that caught on her cute little hat, satisfied that she had made a significant dent in the snow.  I handed her a mug of hot chocolate.

Of course, this morning the path she shoveled last evening doesn’t exist.  It was filled, probably within minutes, and then completely covered by the new snow whipped by the wind.  She took charge of her world by braving the cold, the wind, the snow, and making a difference.  But she made no difference at all, as the morning revealed.

There are a number of lessons to be learned.  To let go of things we can’t change or control, despite our desire to seize control of our world and make a difference.  To come to grips with the fact that we will face frustrations, and despite our best efforts, will find ourselves unable to fix things or make them better.  Over time, even the most proactive of us will realize that we can’t change everything.  Some things, like a blizzard, will happen regardless of what we do, and some things, like the snow filling in the shoveled path, will render our efforts to change things futile.

Rick Horowitz hasn’t been doing much writing lately, but he posted yesterday when few others did.  He explains that it’s not because he had nothing to say, but because of his cognitive dissonance.

You see, what I might want to say is that it’s about time for blood to run in the streets. What I might want to say is that it’s time for a revolution. What I might want to say is that if you work for the government, you are someone the rest of us should consider putting down.

But that’s not really right.

And I haven’t figured out yet how to deal with the fact that I do, actually, think it’s true that we need a revolution, with the fact that people really do get hurt in revolutions, and with the fact that I also don’t think this line of thinking is really right.

The inability to make things better, whether for yourself or others, breeds frustration.  To the proactive person, living in a state of frustration is unacceptable.  Something must be done.  As lesser efforts fail to produce improvement, more extreme measures seem necessary.  It eventually reaches the point where a person might think that it’s time for “blood to run in the streets.”

But as Rick realizes, “that’s not really right.”  He knows that it’s just frustration talking, and sense of hopelessness and futility.  If blood ran in the streets, it would likely be his.  That’s not going to help anyone.

One of the things that contributes to this sense of hopelessness is the constant bombardment of bad things we endure at the hand of what’s supposed to be a benign government.  Some become hyper-radicalized by knowing too much about the bad, where we begin to get the sense that the blizzard will never end. 

In almost 30 years, I’ve seen more than my share of bad things happen in our system.  There has also been plenty of good.  While we occasionally applaud the good, it seems rather unnecessary.  Isn’t the whole point of this exercise to serve society, to provide good for all, all the time?  All of our favorite platitudes remind us how great we are, yet the reality we read about daily tells a different story. 

One such platitude is “ignorance is bliss.”  Sadly, proactive people aren’t satisfied with being ignorant.  There is a blissful state out there waiting for us, and we run from it as fast as we can.  We can hide our heads, squint, and make the world seem acceptable, maybe even pretty good.  And guess what?  It actually is pretty good. 

Almost every person reading this has a wonderful life.  There are people whose suffering, whose frustration, whose problems dwarf ours. As many problems as our country, our system, has, we can’t begin to compare the horrors of scope and grope with watching our children die of starvation or cholera.  As the wind blows and snow comes down, I’m sitting in my library where it’s warm.  Not everyone can say that.

Coming to grips with the fact that no one, no matter how proactive you are, can control everything is difficult.  There are some new blogs around demanding extreme measures of lawyers, because the system is so awful that we can no longer take it. 

While we all feel frustration from time to time, we similarly realize that we are no more likely to foment revolution today than we are to stop the snow from falling.  Indeed, I’m as fearful of those who proclaim the time for revolution is at hand, as they have the arrogance to believe their vision of “justice” is somehow true, and should be summarily imposed on us.

The time will come to start shoveling snow in earnest, when it will be worthwhile and the path won’t be filled by new drifts.  As much as proactive people want to have an impact, it can’t happen until the snow gives way.  That’s just how it is.  We can’t change some things.  Knowing what we can change, knowing what is worth the effort and then making the effort despite the frustration, is a difficult thing for proactive people to accept. 

But we don’t have a choice.  We can’t stop the snow that’s still falling.  And when it does stop, we can’t sit by and do nothing to improve our situation.

This has been on my sidebar for your enjoyment for the past few years during the holidays, but for those who have missed it, here’s another shot.

You’d better watch out,
You’d better not cry,
You’d better not pout;
I’m telling you why.
Santa Claus is tapping
Your phone.

He’s bugging your room,
He’s reading your mail,
He’s keeping a file
And running a tail.
Santa Claus is tapping
Your phone.

He hears you in the bedroom,
Surveills you out of doors,
And if that doesn’t get the goods,
Then he’ll use provocateurs.

So–you mustn’t assume
That you are secure.
On Christmas Eve
He’ll kick in your door.
Santa Claus is tapping
Your phone.

It requires no explanation that this holiday tends to bring out pardons and commutations.  Peace on earth, goodwill toward men.  So those in positions of authority think about the exercise of mercy, some to grant it on Christian holidays to show their hearts are pure and others because they don’t think about mercy any other time of the year.

Governor David Paterson, New York’s blind squirrel, offered a gesture of Christian mercy to John White.  White, you may recall, was convicted of the killing of 17-year-old Daniel Cicciaro, who came to White’s home with a mob to beat up his son because of a prank gone awry. 

White  came out with a gun rather than call the cops. Cicciaro died.  White was sentenced to 2-4 years. 

After serving five months, his sentence was commuted.  Merry Christmas.  The Cicciaros were not amused.

Reached at his auto body shop in Port Jefferson Station, the teenager’s father, Daniel Cicciaro, reacted with annoyance when a reporter identified himself.

“Yeah, what do you need? An oil change?” he said. “We got nothing to say about it.”

Apparently, nobody from the governor’s office gave the Cicciaros an opportunity to be heard.

Thomas Spota, the Suffolk County district attorney, said in a statement, “I strongly believe the governor should have had the decency and the compassion to at least contact the victim’s family to allow them to be heard before commuting the defendant’s sentence.”

It would be fair to believe that the hole caused by the death of their 17-year-old son had yet to heal.

Mr. Cicciaro’s mother, Joanne, declined to comment on the case on Friday. Dano’s Auto Clinic in Port Jefferson Station, which is run by the victim’s father, was closed on Friday, but a decoration, the face of an African-American Santa Claus, was taped to the outside of the front door. It was unclear who had put it there.

No lengthy explanation is needed to clarify why John White and his family are happy this Christmas.  White would likely have served about 20 months before being released, and now his sentence is over.  He has returned to the bosom of his family, his church, his God. 

But this gift to White was at the expense of the Cicciaros.  The latter aren’t a very sympathetic family, despite having lost their child.  They don’t understand why others outside their socioeconomic and ethnic niche are so harsh, but they reflect the stereotype.  Anger, arrogance and racial hatred.  At least that’s how they’ve been painted, and how some of their friends  tainted them in support.  Frankly, that’s how I see them as well.

But there are people who believe that John White could have made better choices, called the police, stayed inside his house, behaved in a way that wouldn’t have left a 17-year-old boy dead.  They see the sentence he received as an invitation to kill, a Texas-style approach to the Castle Doctrine rather than making the decision to de-escalate a heated situation.  

White’s sentence has been commuted after a mere five months.  This reopens the wounds of that night of bad choices.  One family was given a Christmas present.  One family was not.  No matter how one feels about the Cicciaro family, they still lost a child.  Goodwill toward men extends to them as well.