Over at Spamnotes, Venkat Balasubramani riffed off  my post on the downside of undeserved self-esteem by providing bit of historical context, if there is such a thing as historical context when referring to an internet phenomenon that’s existed for slightly less time than a fruit fly.

What’s interesting about this is that this is a relatively recent phenomenon.  I don’t have any claim for being an early active participant on the internet, but my anecdotal observations are that in the “early days,” you could put yourself out there, but you were just as likely to be ripped to shreds as you were affirmed by the adoring masses (or by your “tribe”).

In fact, one of the big benefits touted of the internet is that it is a gigantic merit-based system where the crowd functions as an adequate screening mechanism to separate the good ideas, arguments, and positions from the bad.  You can put whatever you want out there, but chances are, someone else (somewhere) would cut it down to its appropriate size.  Somewhere along the way, between GeoCities and Facebook, all of this changed.

What’s changed?  You guessed it.  With interactions increasingly becoming social (i.e., attached to our “true” and “authentic” online personas), flattery and faux kudos are on the rise.  In fact they are the norm.  People compliment each other endlessly and mindlessly.  The internet has become a giant self esteem pyramid scheme of sorts.

As new people arrive daily, they want nothing more than to be welcomed and embraced.  Cynical old timers have seized upon the fragile and needy newbies by tossing them a stray kiss and receiving their uncritical devotion in return.  In the process, It’s home, home on the range.  You know, “where seldom is heard a discouraging word.”

Venkat asks whether we’re creating a self-esteem bubble, with people roaming the internet with an inflated sense of self-worth that will ultimately burst? It seems pretty likely, as all this unwarranted love and goodwill is undermined by the reality that rises to the surface that everybody online isn’t the most wonderfulest person ever, that you don’t really want to complement your latest twitter follower for getting out of bed without falling down and that you don’t truly care what trauma is endured by a second year law student. 

At some point, thoughtful people will start yearning for something more thoughtful.

Does this make the bursting bubble a bad thing?  I think not.  Venkat’s allusion to a pyramid scheme is particularly apt.  It seems inconceivable that people will find it perpetually worthwhile to engage in this delusion of self-congratulatory drivel.  We can only applaud others for burping so many times before we’ve had our fill and demand something a little more worthwhile to generate a compliment.

At this phase of the blawgosphere’s maturity, there are many who have captured an audience via this pyramid scheme of mutual undeserved applause, but whose substance is lacking.  When the bubble bursts, they will disappear.  When it’s no longer enough to spread the love, when there isn’t enough time in the day to offer another empty gesture in the hope that it will be requited, it will fade.  Then, I hope, we can return to a time when blawgers, and readers, will scrutinize carefully for merit.  Then, when someone applauds, it will mean something rather than just be an even exchange.

In the meantime, the self-promoters and scammers will have their day.  Those who thrive on the pyramid scheme will enjoy the attention they receive in return for their faux blown kisses.  But like all pyramid schemes, it will eventually collapse onto itself.  And we can go back to the meritocracy that the blawgosphere once promised.  For now, it’s all about blowing smoke up each other’s butts.  Eventually, the smoke will clear.

My only hope is that the bubble bursts before those who are putting in the effort to provide substantive work, solid thoughtful effort, get too disgusted and move on to more worthwhile pursuits. 

The quest to create a news portal that’s truly neutral has produced some great moments in journalism.  Think Fox News’ Fair and Balanced tagline. It even said that on a tie they gave me to wear back when I did their legal analysis.  It was a pretty nice tie, really.

An email came across the other day promoting another entry into the mix, called Newsy.

Newsy is a news site that uses multiple sources to get across the core of the story. Newsy doesn’t lean to one side over another. They are in the middle kind of like this issue. I think you should consider embedding this video and other videos from Newsy to use on your website because of it’s approach to the newsy

On Tuesday, the Supreme Court gave an answer to the $7 billion question: “How can California cap its numbers?”

NOOOO!  The Supremes heard argument.  They gave no answer.  A massive failure for a news story, to offer something so completely and fundamentally wrong. 

As a consumer of news, I welcome credible and intelligent sources of information, recognizing that its often hard to put together a story about something important in the few minutes given to issues of grave consequences between happy dog stories and dead baby interviews.  But when the story starts out with something so basically false, nothing that follows matters.  It has perpetrated a fraud.  It has illuminated nothing.

I’ve never been a fan of the concept of journalistic fairness.  I’ve argued the point with friends in the media, who believe the myth that there are two sides to every story and want to offer each an opportunity to be heard.  Often, there is no other side, and one side is correct while the other is full of malarkey.  To offer equal time, and thereby equal stature, to a nonsensical, false or deceptive position isn’t a point of journalistic integrity, but one of adding to the noise and confusion that renders people incapable of understanding and appreciating the events around them.

The downside to my view is that it requires someone to figure out which side of a story is valid, which invariably is colored by the belief system of the person making the call. 

Aside from the apparent absence of anyone working at Newsy capable of distinguishing between oral argument and a decision from the Supreme Court, its broadcasts tend to cut the money quotes out of news reports by others without the substance.  It reminds me of the fast paced but inherently vapid MTV news reports crafted for those with attention deficits and little concern for facts.  It’s the anti-Sgt. Friday: No facts, Ma’am, just conclusions.

That traditional media sources, like television news, are too far behind the curve and perceived, at least, as too partisan to provide reliable information has become the rule of thumb.  But the nouvelle approaches, such as Newsy, may save some time by putting together an amalgam of multiple sources, but does little to illuminate the issues it addresses.

For example, in a story about indicting Wikileaks’ Julian Assange, the Newsy piece gave time to Andrew Napolitano’s discussion of first amendment issues, but never raised the fact that it exists outside the United States’ jurisdiction, an obvious precursor to prosecution.  One problem is that the media sources from which it draws offer a lack of depth, thus depriving Newsy of any opportunity to offer content that doesn’t exist.  But then, given the model Newsy uses, this will be a perpetual issue, limiting its content to what others have created. If others do a crap job, then Newsy will only have crap to offer.

Ultimately, the promise of offering a more neutral airing of issues, or “middle kind” as it strangely thinks is a more attractive way to put it, still requires Newsy to both start with a sufficient understanding of its subject matter to avoid rebroadcasting flagrantly inaccurate statements, as well as including some substance upon which the viewer can weigh the value of its money quotes.

Will it be good enough that it moves quickly, saves the viewer the time of actually having to watch more in-depth reports and pretends to provide it all in a few minutes?  Not for me, but then I harbor no delusions that my view reflects that of others, for whom fast and easy conclusions without substance will let them rush back to their Gameboy (before all their lives are lost) with the satisfaction of believing that they are now on the cutting edge of information.

Between Thanksgiving, when the president performs the annual “pardoning” of the turkey, which is just as funny and poignant this year as the one before, and before that, and Christmas is one of the most important times of the year for the Chief Executive to exercise his power to pardon.  Real people, not just turkeys. 

President Obama was likely too busy the past two Decembers to flex his pardon muscle, and no one was saved.  In advance of this December, the lack of any pardons by the President of Hope gave many  a reason to question what he was thinking.  Maybe that little push was what he needed. 

From Pardon Power, President Barack Obama has, for the first time ever, finally, acted:

682 days into his presidency, Barack Obama, the slowest Democratic president in history to exercise the pardon power, has finally discovered the dark corners of Article II of the Constitution and has granted 9 pardons. Why, even William Henry Harrison, who only served 32 days before having the poor taste to die, found a way to grant 3 pardons!

The offenses addressed in the 9 most recent pardons are distributed across decades as follows:

    1960s (2)       1970s (1)       1980s (3)       1990s (3)      

As a result, the average distance between each sentence and the subsequent presidential pardon is a whopping 28.3 years! Even the smallest distance is over 11 years.

James Bernard Banks (1972) UT, illegal possession of government property (2 years probation)
Russell James Dixon (1960) GA, liquor violations (2 years probation)
Laurens Dorsey (1998) NY, false statements (5 years probation, restitution)
Ronald Lee Foster (1963) NC, coin mutilation (1 year probation. fine)
Timothy James Gallagher (1982) AZ, cocaine (3 years probation)
Roxanne Kay Hettinger (1986) IA, cocaine (30 days, 3 years probation)
Edgar Leopold Kranz, Jr. (1994) military (24 months)
Floretta Leavy (1984) IL, cocaine/marijuana (1 year and 1 day)
Scoey Lathaniel Morris (1999) TX, counterfeiting (3 years probation, fine)

In the course of a discussion about disclosing erroneously unredacted information about a witness to a defendant, a loose comment devolved into a raging debate.  This happens occasionally on a bar association listserv, but rarely does it reach the level of threats of violence.  This one did.

Because the listserv is intended to be private, and because it adds nothing to the discussion, there’s no reason to identify who made the comment.  It’s enough that the comment was made.

If a client wants to take a shot at a witness, that is 100 % their own stupid decision and they suffer the consequence.   Why should anyone even care whether a prosecution witness lives or dies

The Oscar Wilde of Pittsburgh, Dan Hull, reminds us that

When everyone is somebody, then no one’s anybody.

–Sir W.S. Gilbert (1836-1911). Dramatist, Librettist, Illustrator.

Hull can be such a downer sometimes.  After all, isn’t self-esteem what the internet is all about, allowing us to authentically engage with people of great accomplishment and talent despite our having nothing whatsoever to commend us?  We’re all worthy.  Get a twit from your hero and you’re just as important and heroic as anyone else, like a social media rock star. 

Right?  Come on, admit it.  You love being validated, affirmed, acknowledged.  Because in the back of your head, you fear that you’re just an unworthy fraud who will be revealed as having done nothing more than feigned being meaningful online.  You can blow smoke up the butts of 100,000 followers and manufacture an online reality that your real existence will never match, and you fear that someone will call you out as a fake.

We could chalk this up to your confusion of lack of self-respect with undeserved self-esteem, but that much thinking would make your brain hurt.  Nobody wants that.

It’s an article of faith that enhancing the self-esteem of others will increase the goodness of our society, make it a better place, a happier place, a place of greater justice and kindness.  Let’s applaud everyone, look for the good and make excuses for the bad.  No one is every wrong, but merely less right.  This is what you’re seeking, isn’t it?  This is what will alleviate that gnawing fear, the opiate of the Slackoisie.

But maybe feeding your need for unwarranted high self-esteem won’t produce Utopia.  Maybe it will  ultimately take you elsewhere.

This belief — that increasing self-esteem will increase goodness in society — spread through the rest of America like proverbial wildfire.

It turns out, however, that the premise was entirely misguided. There is no correlation between goodness and high self-esteem. But there is a correlation between criminality and high self-esteem.

Florida State University professor Roy Baumeister (Ph.D. psychology, Princeton University) has revealed that in a lifetime of study of violent criminals, the one characteristic nearly all these criminals share is high self-esteem.

Uh oh.  That doesn’t sound good at all.  Let’s cut to the chase, shall we? From the Atlantic Wire :

SUBJECT: The “self-esteem movement”

LENGTH: 937 words

OPENING SENTENCE: “By now, most people (with the exception of many psychotherapists) recognize that the self-esteem movement officially launched by California in 1986 has been at best silly, and at worst injurious to society, despite whatever small benefit it may have had to some individuals.”

MAN TO BLAME FOR SELF-ESTEEM MOVEMENT: California assemblyman John Vasconcellos, a “radical humanist”

WHAT THE ADVOCATES THINK:   “rais[ing] young people’s self-esteem  … will increase goodness in society”

WHY PRAISING YOUR CHILD COULD MAKE HIM AN AXE MURDERER: “There is no correlation between goodness and high self-esteem. But there is a correlation between criminality and high self-esteem. … Yes, people with high self-esteem are the ones most prone to violence.”

Could this be true?  Could your search for self-esteem, approval, acceptance, validation, affirmation, a group hug, turn you into an ax murderer?

PRAGER’S PERSONAL NAME FOR THE ’60S AND ’70S: “The Age of Feelings”

SELF-ESTEEM GOES UP, MATH SKILLS GO DOWN:

One result of all this has been a generation that thinks highly of itself for no good reason. Perhaps the most famous example is the survey of American high-school students and those of seven other countries. Americans came in last in mathematical ability but first in self-esteem about their mathematical ability.

BETTER TO ERR ON THE SIDE OF EMOTIONAL ABUSE: “To cite one example, one of the finest human beings I have ever known–an individual of extraordinary courage, integrity, and selflessness–had a father who constantly berated this person as worthless and stupid.”

MANDATORY DISCLAIMER: “Now, this father was, to put it mildly, a sick man.”

BUT STILL: “it had no negative impact on this individual’s sterling character”

CONCLUSION: “society has the strongest interest in not promoting self-esteem among children”

PARTING WORDS OF WISDOM:

If you don’t agree with this conclusion, do the following: Ask the finest people you know how much self-esteem they had as a child. Then ask all the narcissists you know how much their parent(s) praised them.

No, this is not an argument in favor of berating your children.  That’s just sick.  But it is to say that applauding them for burping may be the surest route to creating a person with a bizarrely unrealistic belief in his own entitlement.  Prisons are filled with such folks, many of whom can’t fathom why society doesn’t appreciate their importance.

Forget about desperately seeking the approval of others.  Do something meaningful, real, difficult, for yourself.  You will never twit yourself to love or importance.  Gain self-respect by earning it through your deeds and hard effort, and you won’t need to beg for some other fearful fraud to respond with a return twit telling you that you are a worthwhile person too.  You will be worthwhile because you’ve accomplished worthwhile things. 

Sometimes it will make your head hurt.  Sometimes you will fail.  But you will have the self-respect of knowing you gave it your all.  And you can take true comfort in knowing that. even though you are not the center of the universe, you are not revered by all who follow your twits, you are not entitled to the respect of every person whose path you cross, you have achieved something real by your own hand.  Be real.

Or there’s always prison.

H/T Stephanie West Allen

Chandler, Arizona criminal defense lawyer  Matt Brown posts about a common favor asked of pals in the courthouse, covering a case when the lawyer is unavailable because he’s tied up in another courtroom.

I do my best to personally attend every single hearing for every single client I represent. Every lawyer I respect does the same. Despite my best intentions, however, I admit I’ve had to ask for coverage. I’m sure I’ll have to do it again. Trials sometimes go longer than planned, and judges sometimes set things over my objection. Every judge thinks his or her orders are the most important.

This is particularly difficult early in one’s legal career, when it’s likely that lawyers will take on as much work as possible to both establish their worth as well as eke out a living.  I recall complaining to a court officer about being held in a courtroom on one case, awaiting a prosecutor who wanted to stand up on his case but who couldn’t be bothered to appear until the calendar assistant let him know that everyone else was present.  I fumed as I sat there, wasting my time, because I had a client sitting in another courtroom waiting for me.

The court officer, older and wiser, looked me in the eye and said, “you can’t be in two places at the same time unless you’re an amoeba.”  Okay, not quite catchy, but it sunk in.  It was an immutable rule, and no amount of anger on my part was going to change it. 

Matt told the story of his coverage for another.

Yesterday morning, the tables were turned when another lawyer asked me to cover two hearings for him. I told him I could do it; I was there anyway. I didn’t charge him, as I view coverage as a professional courtesy to a colleague and not a source of income. He sent me an email with fairly detailed notes about what was happening in each case.

One hearing went fine, but the other was an absolute disaster. What I knew walking into that disastrous hearing was that he’d filed a motion to continue, which he had attached to his email. He had a trial conflict, as did the prosecutor, and he had already bought plane tickets to go on his holiday vacation after the conflicting trial. He wanted some extra time, and nobody objected to his motion. Sounds like a no-brainer, right? What I walked into was anything but the easy continuance I was expecting.

It turned out the trial conflict he cited in his motion had gone away. I doubt he lied in the motion and expect it had been continued between filing and the hearing I attended, but I wish he would’ve told me. The last day for speedy trial purposes was also very close, and the prosecutor told the judge he could find another prosecutor to try the case for him. According to the judge, the Arizona Supreme Court’s policy is that a previously purchased vacation plane ticket isn’t sufficient cause to continue a trial. The icing on the cake was the client, who claimed his lawyer told him the case “was too hard.” I can’t remember when I’ve been so blind-sided walking into a hearing.

It’s long been a truism that no good deed goes unpunished, and Matt’s favor for a friend was no exception.  The problem is twofold, first, that covering a case for an attorney who cannot appear should be no more than ministerial, a quick explanation and adjournment to a date when the attorney can appear.  Second, that neither the covered nor covering attorney presume that the coverage lawyer is anything more than a warm body.

This is where the defense of a human being takes a turn for the worst, when one lawyer fills in for another and is put into the position of doing anything more than simply adjourning the case.  It’s a position that should be avoided at all costs, but that can be hard to do when the judge peers over the bench and refuses the basic request for an adjournment.  The judge stares down at the suit in the well and says, “you’re a lawyer; you’re here; start the hearing/trial/argument.”

While seeking coverage is a fairly common request, it shouldn’t be.  Through careful planning and some advance effort, it can largely be avoided.  The reason it’s not is that lawyers don’t consider it enough of a problem to put in the effort to avoid it, taking the path of least resistance of having a warm body stand up for the defendant instead.  It’s certainly easier than the alternative, but it is not acceptable.  This is how we wander down the path of ordinary injustice on the defense side.

There is no court appearance, none, that is meaningless.  Sure, some are going to be substantially less eventful than others, and we are often aware in advance that nothing is likely to happen, whether for lack of papers or action that’s needed to advance a case.  Still, every time your client, your defendant, stands in the well in front of a judge, his heart races and mind blurs. 

There is always the potential that something will happen, whether for good or bad, that can change everything in a case.  If you don’t appear, you can’t protect your defendant from it, or capitalize on the opportunity presented.  If you aren’t there, you won’t know.

In my time in the trenches, there have been 25 to 50 times when something unanticipated happened during what I would have thought to be a routine calendar appearance (or whatever you call it in your jurisdiction), giving me an opportunity to make a motion, demand dismissal, blame a prosecutor, alter the outcome of a case.  If I wasn’t there, it would have been missed.  If I wasn’t there, 25 to 50 defendants might have gone to prison who instead went free.  Tell those 25 to 50 defendants that it doesn’t matter whether their lawyer was standing beside them.

There is nothing we do as criminal defense lawyers that’s inconsequential.  At least that’s how we must think about our job.  Whenever I hear about a lawyer who says he goes from trial to trial, my thoughts immediately turn to the outrageous failure of representation.  If a lawyer is always on trial, that lawyer isn’t doing his job.  It’s usually a by-product of taking on too much work to compensate for low fees.  And usually, the low fees correlate to the degree of self-promotional puffery, which is never a substitute for excellence and only fools the fools.

Most of our most potent work is done out of court, in motions, investigation, preparation.  Sure, the most fun for us is prancing about the courtroom like a show pony with all eyes on us, but the hard work is done when no one is watching.  That’s where we win cases.

When a client retains us, he does so with the expectation that we, the person behind the law degree, will give him the best we’ve got.  Would anyone want your representation if you told them that you would be there when it was convenient, when you could be the star, but that elves in the backroom, inexperienced or unrelated lawyers whose names they would never know, would be doing the bulk of their work?  No matter how pretty you try to make the story, you’re just wrapping a bow around a turd. You are the lawyer, and it’s your work the client pays for.  Anything else is a lie, both to the client as well as yourself.

Perhaps it’s just a personal quirk, but it’s always been my practice to stand beside my client when he faces the court if it’s at all possible.  Once, when the court was seriously jammed, the judge was kind enough to send his law secretary out to let me know that he wouldn’t get to my case for a few hours, and would adjourn it to whatever date I selected.  He told me I could take off, and he would handle it for me.

I thanked the law secretary, but declined.  I told him that I would wait, even though waiting a few hours was an enormous burden as there was much to do that day, and sitting on my butt in a courtroom awaiting a simple adjournment was a terrible waste of time.  But I would wait.

When the case was finally called, the judge, glared at my angrily and called me to the bench.  He asked me sarcastically why I thought he, via his law secretary, would lie to me, that I couldn’t trust him to adjourn my case.  He was furious at my insult to the court.

I explained that I never doubted him for a minute, but that the defendant came to me, paid me, trusted me, and it was my duty to my client to stand beside him as he stood in the well that took precedence, even if it meant refusing the court’s kindness. 

In the rare instances when coverage is truly required, the most important skill is the ability to shrug.  As the court attempts to coerce the covering attorney into being more than a warm body, a smile and shrug leave the court with few options.  It says, “I know nothing about the case, I have no authority to do anything, and I’m only here to take up space while the defendant’s attorney is elsewhere.”  That’s because he can only be in one place at a time; because he’s not an amoeba. 

The coverage attorney is merely a warm body, and any attempt to be more comes at the defendant’s expense.  You don’t know the case. You don’t know the dynamic. You can’t provide the defendant with the representation he expects and deserves. You may be the most wonderful lawyer in the world, but you’re not the defendant’s lawyer.  Never assume otherwise.  Never let the judge goad you into presuming that you can handle it.  The judge isn’t interested in the defendant. The judge just wants to dispose of cases.

Better that the judge will be angry with you for screwing up his plans than find yourself sliding down a slippery slope.

Not only was your mother right when she told you to wear clean underwear, but you might want to consider wearing something that will make you look pretty hot on Youtube. 

Via Rick Horowitz , this just in from Gizmodo :

The story is that despite having purposefully stripped down to her skivvies, this 52-year-old (?) retired surgeon, now wheel-chair bound, was subject nonetheless to a TSA pat down.  Twice.

When I was a kid, we had to hide behind the woodshed to see things like this, and scramble if we heard somebody coming.  Things have certainly changed.

Given the scope and breadth of political interest involved, it comes as no surprise that the naming of 9th Circuit Court of Appeals Judge Stephen Reinhardt to the panel of three that will decide the constitutionality of California’s Proposition 8 has resulted in a near instantaneous call for his recusal.

At Bench Memos,  Ed Whelan first explains, in passive-aggressive fashion, all the negatives that shouldn’t disqualify this “arch-activist” judge:

One predicate fact, insufficient in itself, is that Reinhardt is the husband of Ramona Ripston, the longtime executive director of the ACLU of Southern California. I need not and do not argue here that the corporate affiliation between the ACLU of Southern California and the ACLU Foundation of Northern California, which has filed an amicus brief on appeal, requires Reinhardt’s disqualification. [Update: But see this follow-up post, which discusses the role of the ACLU of Southern California in the district-court proceedings in this very case.] Nor do I argue that Ripston’s financial contribution to the No on 8 campaign (which may or may not have come out of joint funds) compels Reinhardt’s disqualification.

Where’s barefoot and pregnant when you need it?  Whelan then proceeds with the coup de grâce.

Rather, I rely on the fact, reported months ago in this California Lawyer article, that Ripston consulted with the plaintiffs’ lawyers about the decision to bring this very case:

Earlier that month [May 2009], [Theodore] Boutrous [of Gibson, Dunn & Crutcher], [Chad] Griffin [board president of the American Foundation for Equal Rights, the group sponsoring the lawsuit], and [AFER board member Bruce] Cohen had opened confidential discussions with [Lambda Legal’s Jennifer] Pizer and Jon Davidson, Lambda’s legal director; Ramona Ripston, executive director of the ACLU of Southern California; and Mark Rosenbaum, its legal director.

Mandatory recusal is one thing, but “soft” recusal, where the determination is left to the judge, is a minefield.

The Code of Conduct for United States Judges requires that a judge “disqualify himself … in a proceeding in which the judge’s impartiality might reasonably be questioned.” How is it possible that Reinhardt’s impartiality in this case couldn’t reasonably be questioned when his wife took part in confidential discussions with plaintiffs’ lawyers over whether they should pursue the case? And, no, it’s no answer to say that Reinhardt is already so biased in favor of plaintiffs that his wife’s role couldn’t make a difference.

In tit-for-tat fashion, the easy answer is to point to Ginny Thomas, Clarence’s wife, who has become the very vocal darling of the tea party.  While few would argue that Justice Thomas needs to consider Ginny’s view in order to decide whether to snuggle up with Antonin Scalia, this fails to address the question of whether Ramona Ripston’s involvement, whatever that may be (which Whelan duly notes) taints Judge Reinhardt in a way that should compel him to recuse himself.

Soft recusal raises the specter less of actual impartiality, and more the appearance of partiality.  If the public believes that a judge was influenced not by the law and argument, but by outside influences, then the decision will fail to be given the respect necessary to maintain the integrity of the least dangerous branch.  Lose the public’s respect and the legitimacy of the system falls.  Since there’s little chance of the judiciary getting its own army to enforce its rulings, this could prove problematic.

Historically, we pretend that judges are neutral.  It’s among the many legal fictions that allow our society to function.  Even though we know it’s merely a fiction, there still remains some weird, naive belief that when someone walks into a courtroom, they will see a benign person wearing black, intensively focused on the matter at hand and willing to listen, consider and rule in a way that might be different than what passes through their heads as they drink their morning coffee and read the newspaper. 

And sometimes, that’s exactly what happens.

Impartiality, the ability to set aside our personal view of the world, right and wrong, sensible and stupid, and hear an argument on the merits as if we’ve never had a thought in our head before, is both incredibly difficult and the sine qua non of a good judge.  This is how every case should be judged, and it’s most assuredly not. 

Too many judges, particularly those who have spent a bit too long in the trenches and wonder why they didn’t become doctors like their mother suggested, grow hostile, terse and bizarrely presumptive.  They know it all, heard it all, just can’t bear to hear it again from you.  And their demeanor in letting you know is anything but judicial.  Judge Judy has clones.

But it’s absurd to suggest, as Whelan does, that Judge Reinhardt’s impartiality is compromised by his wife, any more than it is that Justice Thomas’ partiality is compromised by his.  Putting side the observation that people can disagree with a spouse on occasion, or that people tend to marry people with whom they share a similarity of views, the argument still fails. 

Judges are inherently subject to myriad influences outside the courtroom, from their mothers to their campaign contributors to the party leaders who support their job application.  Judges sitting on criminal matters routinely promote their support from police unions and prosecutors, often adding their own two cents about how they’ll be tough on crime and lock people away forever to protect the public.  This is an overt plea to prejudice, a promise that they will act with partiality.  Yet they are elected, despite having announced that they will perform the duties of the office in a manner favoring one side over another.  Yet calls for recusal are rarely heard, and never approved.

Whether the spouse of a judge is male or female, it would be untenable to require the spouse to take no position, hold no view, relinquish the right to speak or act in whatever way they chose.  We cannot demand that the wife of a judge be barefoot and pregnant, or at the least silent.  Judicial spouses are people, and imbued with the same right to be a person as anyone else.  The judge takes the bench, but the spouse isn’t subject to second class status as an adjunct to the judge’s appearance of impartiality.

Lastly, the fiction that allows us to believe that judges are impartial must similarly compel us to believe that they are strong enough to do their job fairly and take the heat when they get home for dinner. 

If it happens that the 9th Circuits upholds the district court’s ruling, supporters of Prop. 8 will scream that the fix was in.  The pre-emotive move to push Judge Reinhardt to recuse himself because of his wife is nothing more than an effort to get a seemingly sympathetic judge off the case.  In the scheme of things, I don’t fault anyone for trying to do what they can to pursue their agenda.

But as soft recusal arguments go, this one is facially flawed and substantively silly.  This panel can’t help but be incredibly aware of the scrutiny that its decision will receive.  The ruling must survive on the strength of its reasoning.  And even if it’s intellectually unassailable, the losing side will scream bloody murder and the cert petition will already be prepared.  Let’s just leave the spouses out of it.

Confidential to Orin Kerr:  I see that you’re unclear on  what to make of Ed Whelan’s argument.

I’ll leave it to the legal ethics experts to weigh in on this question, as I don’t know what to make of it.

I just want you to know that whenever you have these questions, feel free to come to me.  I would be happy to be Ramona Ripston to your Stephen Reinhardt.  I’m here for you.

Update:  From WSJ Law Blog, the motion has been made and decided.  To paraphrase Judge Reinhardt’s decision, “bite me.”

Stephen Hayes will be sentenced to death, and twitter is to blame.  That’s one of the arguments being advanced by his attorney, Tom Ullmann, according to the New York Times.

One of the most provocative is that the intense reporting on the trial — including mainstream reporters’ extensive use of Twitter — created a “circus atmosphere” and such widespread, instant saturation with inflammatory details that the jury was improperly swayed by public passions. The claim could force appeals judges to grapple with the question of whether new technology requires new courtroom rules.

“As I experienced it during this trial, I think there’s a real danger that the inclusion of new technology in the courtroom is affecting an individual’s fair-trial rights,” said Thomas J. Ullmann, Mr. Hayes’s chief defense lawyer.

The complaint is rather broad and generic, applicable to almost any high profile case involving horrible acts, especially in a “small market” where its news value is so monumental that it receives constant attention.  There’s no claim that a witness was lost, or a juror was reading the twits. or approached by someone seeking to influence the verdict who was inflamed by the twits. 

Despite the dearth of detail, particularly given the nature of the crime which was a lurid as it gets, and thus inevitably the cause of inflamed passions, it raises a very interesting question.  As the Times notes, the “circus atmosphere”  served to overturn the conviction of Sam Shepard, and there’s a certain allure to challenging novel technology in the courtrooms that have yet to pass muster on appeal.

“There is a general reason for concern about the impact of the new media” in high-profile trials, said John J. Donohue III, a Stanford Law School professor who studied the Connecticut death penalty and wrote a report that said it was arbitrarily enforced.

Professor Donohue said some appeals judges might be intrigued by the idea that limiting instant communication from courtrooms might make trials fairer.

It seems that Donohue’s point is backward, that twitter (or any similar tech that allows for instantaneous, constant broadcast of information) can influence the jury’s perception about their job, giving rise to unbridled public scrutiny that would alter their ability to fulfill their duty to be fair to the defendant.  When the atmosphere is changed to one where the jury realizes that everyone “out there” is watching them, the pressure to conform to widespread public expectations certainly has an impact, and may well be the driving force that influences their decision.

On the other hand, there is a strong contingent that believes that trials, as public forums, should be open for all to see, exposed to the public as a critical part of our acceptance of the legal system as the appropriate means of dealing with crime.  We don’t want trials conducted in secret, a star chamber, and twitter is nothing more than the shiniest new means of disseminating information.

There are two failings with this argument.  First, closing the courtroom to twitting doesn’t mean that the trial is conducted in secret. Reporters will still fill the benches, and write word after word about each sordid detail, and the number of times critical players scratched their nose.  No one is suggesting a star chamber.

Second, the defendant’s right to a fair trial is both more directly implicated, and of greater immediacy, than the right to get information on twitter.  Hayes’ life is on the line.  For the rest of us, it’s a matter of hearing the latest before the newspaper arrives the next morning.  On balance, Hayes wins.

Granted, this issue will raise some serious concerns amongst twitterers, who have come to believe that they are entitled to access any melodrama in real time, and will simply reject the notion that tapping kwerkeys in the courtroom could have any impact on outcome.  After all, it isn’t twitter that made Hayes do what he did; it’s definitely not twitter that made this case as horrific as it was, and therefore the focus of such intense emotion.
If you don’t want to be prejudiced by intense public interest, then don’t commit a crime that will intensely interest the public.

The trial judge, Jon C. Blue of State Superior Court, tersely rejected the claims in a ruling last week, saying that the news media were “carefully controlled” and that there was no evidence the jury was driven by passion.

While the former is subjective and the latter almost invariably unprovable, Ullmann had little chance of persuading Judge Blue that he mishandled the media.  And indeed, it’s unlikely that he expected Judge Blue to rule otherwise, though he had to raise the argument to preserve the issue.  To do otherwise would be foolish. 

Having “enjoyed” the media circus, it seems almost impossible to believe that it doesn’t influence the jury.  There’s certainly a different atmosphere in a packed courtroom, with people scribbling (twitting?) away, and jurors admonished over and over not to read the newspaper (or twitter), secreted out of the courthouse by a cordon of officers and observing the mob of paparazzi attack.  One cannot experience that atmosphere without a mark being left.  It has a pressure all its own, on everyone involved.

But it’s hard to say what impact twitter, as opposed to traditional media, has on this circus.  There is the constancy of twitter, keeping every word, sigh, eye roll, tear of witnesses in the forefront of that portion of the public who cared enough to watch.  Is this better, worse, different than the huge, lurid headline?  Does this affect the pressure-cooker in a way that old-media circus didn’t?

The view from the cheap seats is never the same as the view from the trenches.  I look forward to hearing the details that the defense argues in support of its claim, and remain open to the idea that twitter, that constancy and immediacy, alters the equation. 

There is one thing, however, about which I have no doubt.  Neither the thirst for melodrama nor the love of technology trumps the defendant’s right to a fair trial.  I can’t help but wonder how those who have adopted tech as their savior, an entitlement that only Luddites could disdain, will respond,

It had the makings of a perfect storm, two drunk driving collisions in two days, both driving the wrong way on highways, and one cop dead as a result.  Add to that a District Attorney who made her bones on drunk driving deaths in a county where there isn’t enough crime to grab a headline otherwise.  It wasn’t mere wind blowing, but a tsunami.

And yet the  first reaction of Kathleen Rice, slayer of drunks behind wheels to be treated as murderers instead of people with altered states of consciousness, was to call upon the state to do something to prevent drivers, especially drunken ones, from entering a highway in the wrong direction.

Oh my.  She’s got the right answer.  Check to see if the clocks are working.  Seriously, it was the right thing to do.

In a letter released Monday, Nassau District Attorney Kathleen Rice said the state should consider additional warning methods to alert drivers going the wrong way on highways.

“We need to come up with ways to bring to the attention of drunk drivers that they are going the wrong way,” Rice said in an interview Monday.

“While there exists no doubt that intoxication and impairment play the most significant role in many of these tragic crashes, such a fact does not eliminate the responsibility of our state’s transportation authority to thoroughly study and propose ways to improve the safety on state roadways,” she said.

This is as close as one could expect for Rice to acknowledge that drunk drivers aren’t murderers, bent on going the wrong way down a major highway in order to cause the almost inevitable crash.  Even drunks would generally prefer to make it home and sleep it off than end up dead on the road.  Or with the death of another on their hands. 

After a spate of wrong way collisions years ago, the state installed signs that said “wrong way” at exits to highways to prevent people from mistakenly entering the wrong path.  It happened to the sober as well as the drunk, and the results on the highway were similarly predictable.  Apparently, this wasn’t sufficient to alert the seriously intoxicated to the error of their ways.

Whether it’s big, bright, orange signs that could alert the dead not to enter, and even the stoned and drunk, a solution that prevents the death of a driver, a family, happily traversing the roadways is precisely what would help.  The idea is to save lives rather than avenge them.  Rice got this right.

But then she, with the self-aggrandizing help of state Senator Charles Fuschillo, went and did it.  It was just too good, too visceral, to pass up.

The proposal, by state Sen. Charles J. Fuschillo, would take discretion away from judges who under current law decide whether defendants are fined, jailed, put on probation or given community service regardless of a first or repeated offense.

Under the proposal, a second drunken-driving conviction within a decade would mean a minimum of 30 days in jail; for every conviction after that within a decade, drunken drivers would face at least 90 more days in jail, said Fuschillo, who advocated for the change at a news conference Tuesday with Nassau County District Attorney Kathleen Rice.

So it’s the fault of all those wimpy judges who exercise discretion and don’t send a second DWI offender in ten years to jail?  Would that be because drunken drivers, after a few vinos grande, stop and give some time to the contemplation of consequences before getting behind the wheel?  Or would that be because those wimpy judges don’t care about innocent people dying on the road?  Or would that be because mandatory minimums have worked to very well up to now at reducing wrongful conduct?

“There’s going to be no more judicial discretion to say you won’t go to jail,” Fuschillo said.

Rice and Fuschillo said that those arrested more than once for drunken driving are more than likely repeatedly driving drunk and not getting caught.

It’s such a great theory, that increasing penalties will persuade people from engaging in illegal conduct.  Consider how successful it was for drugs under the Rockefeller laws.  Well, maybe not,.

Marc Gann, a criminal-defense attorney who’s also president of the Nassau County Bar Association, said he doesn’t support the proposal because judges already can and do sentence people to jail for repeated DWI offenses and because education and treatment are better ways to address drunken driving.

“Part of the issue is they are impaired in some way,” Gann said. “They’re not thinking, ‘I’m wasted. I can’t get behind the wheel of my car.’ They’re not thinking right.”

Which is precisely what makes laws addressing drunk driving problematic; they have all the attributes that, by simplistic deduction, should alter behavior, and yet they don’t.  Because “they’re not thinking right.”

Neither is Rice nor Fuschillo, both for their insult to the judges who actually deal with the drunk drivers (notably with the acquiescence of Rice’s assistants, who have to offer the pleas to which the courts impose sentence), as well as their gut reaction of an answer that has not only failed miserably to serve its claimed purpose, but caused horrible unintended consequences that have devastated the lives of so many over the past few decades.

Of course, with two drunk driving crashes in 24 hours, it was just too good an opportunity.  To her credit, at least Rice is batting 500 this time, which is her best at bat yet.