At Real Lawyers Have Blogs, Kevin O’Keefe (whose Lexblog beer for bloggers meetups, by the way, are run in true Irish fashion: everybody drinks, everybody pays) posts about how public relations “professionals” (Kevin’s choice of words) should approach bloggers.

I just got off the phone with a good friend in Manhattan. She was talking with a large consulting firm that had begun to work with large law firms.

As a means of marketing to this new vertical (for them) the consulting firm’s PR professional advised outreach to influential legal blogs. Outreach by commenting on the blogs, emailing/calling the blog publishers introducing their firm, and perhaps offering to write guest posts. She asked for my counsel.

Wrong approach I advised. The consulting firm would be looked at like a wolf in sheep’s clothing. If you’re going to engage bloggers, you need to blog. It’s as simple as that.

It’s never clear what’s meant when someone writes about “influential legal blogs.”  Other than those whose fortunes are inextricably tied to blogging and social media, many of whom working their butts off trying to convince us that these media matter when experience suggests nothing of the sort, no legitimate blawger I know touts his “influence.”  I’ve been doing this for a while, and don’t have any clue whether anything I’ve written has persuaded any more than a handful of die-hards to buy a book, see a movie, change a thought. 

Yet PR folks, whom I refuse to call professionals given that it’s a job without licensure, educational requirement, “hard” code of ethics (meaning that a violation of which results in their being banned from every annoying anyone again), seem to think that bloggers can be of value to them.  For this reason, we’re deluged with their propositions.

It’s unclear to me why PR folks think that we might have any interest whatsoever in being their freebie promotional vehicles.  I’m sure there are many bloggers who do so because their own marketing gurus tell them they must to tap into the vast riches of the internet, but who have so little to write about that they are happy to post smarmy crap pre-written for them by PR folks.  These are the bloggers who have absolutely nothing to offer, but that doesn’t stop them from pretending they have a blog.  Kevin might dispute my description.

Kevin’s solution to the PR people is to “engage” bloggers; to blog themselves.  I have a difficult time seeing exactly how that helps, as there isn’t a chance in the world that I would care one way or the other whether the PR people blog.  I wouldn’t read it.  I wouldn’t care.  And if I did read it, judging from what I read by the marketing people and social media gurus, it would strike me as embarrassingly devoid of thought or value.  Stringing buzz words together in random order, or empty phrases that these people so love to use, mostly provides an opportunity for ridicule rather than engagement.

Rather than urge the PR people to blog, I have a different solution.  It begins with a basic premise.  You have something that you’re being paid to promote.  Maybe it’s something of interest.  Maybe it’s not.  But to the extent there’s any chance in the world that I would be inclined to even consider writing about whatever it is you’re selling, I would first have to like it.

This must be a novel concept, as maybe 1% of the emails I receive from PR folks offer to provide me with the opportunity to read, see or use whatever it is they want me to promote.  I’m perpetually amazed at this.  You want me to promote your movie (which would likely be of interest given the sort of stuff I write about), yet expect me to do so without seeing it?  Would I write book reviews without reading the book?  Would I urge people to eat at a restaurant I’ve never tried?  It’s absurd.

If I’m to take seriously Kevin O’Keefe’s understanding, that PR people sincerely want to “engage” with “influential bloggers,” then the first thing I would urge them to do is stop being pathological idiots.  Under no circumstances would I ever consider promoting something I haven’t used.  None.  Never.  Ain’t happening.  And any blogger who would do so is worthless and incredible.  If you expect me to consider writing about whatever it is you’re selling, the first step is to provide me with it, whether physically if it’s a gizmo or by access if it’s a movie or program or whatever. 

But here’s the rub.  Anybody with any credibility whatsoever will, after using, seeing, whatever, your product, write an honest review.  This means that there’s a chance that your efforts would not only result in giving a blogger a free ride on the use of your widget, but that the blogger hates it and posts about what a useless, worthless piece of crap it is.

You see, legitimate bloggers aren’t going to color their appraisal of whatever it is you’re selling because they got a free ride.  Legitimate bloggers will take your freebie and rip it to shreds if it’s a piece of crap.  That’s what makes them legit.  Their reviews are credible because they are not influenced by anything other than the quality of your product.  No matter how many empty adjectives you use in your press release, the product has to stand or fall on its own merit.

Based on my experience in fielding the dozens of PR pitches I get every week, very few have any interest in seeing whether their product can pass muster.  Most are just bulk emails to as many bloggers as then can find in the hope that some will be so desperately in need of fodder that they will post the crap blind.  Are these the “influential bloggers” that Kevin is talking about and that his “friend” in New York is trying to harness?

As for me, if you don’t think it’s worth your effort to show me what you’ve got, don’t waste your time (or mine) trying to pitch me.  There’s no way I’m promoting anything I haven’t both used and think is worthy of promotion.  Kevin says his idea is “simple.”  I think mine is too.  The only difference is that my way requires a bit more effort and a lot more substance.  If your PR desire isn’t strong enough to produce your goods, then drop me from your list and spend your time on Kevin’s “influential bloggers.”

“I’ve got this case . . .”

Occasionally, I receive a telephone call or email from a new lawyer with a question or in need of someone to bounce some ideas off.  I’m happy to help if I’m not otherwise preoccupied, and much prefer this call to the one from the Avvo reader who wants to know if I can represent them for free because, well, that’s what they want.

What makes these calls interesting is that they come from people who spend a decent amount of time reading blawgs, staying abreast of caselaw and often thinking very hard about way in which to help their clients.  In many respects, this is about as inspirational as it gets, knowing that there are young lawyers who really want to serve their clients, win their cases, beat the system, and are willing to put in the effort to give some serious thought to doing so.  

These aren’t the lazy schmucks, looking for someone else to do their legwork or spoon-feed them the obvious, easily found if they put in an iota of effort.  These are lawyers looking at tough situations, maybe even impossible ones, and hoping that another set of eyes can help.  These are the lawyers who we really want to help, who we admire and see as the future of the fight.

A problem that comes up all too often, however, is the desire to find the brilliant solution, the killer defense that will revolutionize the law and take the loser case and turn it into the huge win.  It’s understandable, both from a personal perspective as they have grand visions of their success, as well as their immersion in outlier cases and decisions.  We spend an inordinate amount of time talking about the unusual, whether good or bad, in the law.  The norm, as Amy Bach wrote, is ordinary injustice.  Nothing fancy.  Nothing unusual.  Just pedestrian, everyday, ordinary injustice.

I recently received a question about a situation involving a failure to turn over exculpatory information, a victim who identified someone other than the defendant as the shooter, until it was too late to lock it in and make it stick.  The explanation was that the cop who took the statement would testify that the victim was incompetent at the time the ID was made, and was clearly incompetent now.  Had the defense known, it would have put the victim and statement before the grand jury and preserved it for use at trial when the victim was no longer capable of testifying.  But the defense didn’t know and the victim’s statement was now left to the interpretation of the cop who took it.

Note: This is just an example, not the point of the post.  I have not provided enough of the background for anyone to pose any meaningful ideas on the case.  Please do not offer your thoughts on how you would handle the situation or I will ridicule you unmercifully, alter your comment to make you look ridiculous and then call you mean names.

The question posed was about remedy and preclusion as the sanction for the Brady failure.  First, the defense needed to get the statement before the jury.  Second, the defense needed to prevent the cop who took the statement from testifying the statement was worthless as the victim was incompetent when it was made.  Either way, the ID of another as the shooter would be rendered worthless. 

The argument, that this dilemma was created by the prosecution’s failure to alert the defense to the exculpatory ID was sound.  The prosecution’s response was that it wasn’t Brady since it was made by an incompetent victim, the old circular argument that it isn’t Brady if the prosecution doesn’t believe it.  While this doesn’t quite wash, it’s more than enough to remove the taint of a deliberate withholding of Brady for malevolent purposes, a finding that only the rarest of judges would reach under only the worst of circumstances.  That’s just how it goes.

I was asked whether and how this remedy and sanction could be achieved, whether the theory was correct.

There’s a tendency to become myopic when striving to find an answer to a troubling question.  You start down a path and then continue to push, hoping to break through brick walls and overcome insurmountable obstacles.  Unfortunately, the zeal of making a theory work sometimes blinds you to easier paths.  This happens all the time.

My reaction to the question was that the judge would be hard-pressed to refuse to allow the exculpatory identification in, he would similarly be hard-pressed to refuse the prosecution’s rebuttal witness, the cop who would testify that the victim was incompetent.  Since Brady remains one of the great jokes of the law, whether it exists and when it must be disclosed, the imposition of such a severe sanction as preclusion of testimony would only be available if the defense could show the failure to disclose as deliberate and designed to conceal and deny this evidence to the defendant.  Given the availability of a somewhat rational explanation, even though wrong, the likelihood of a judge imposing it was slim.  Very slim.

On the other hand, a shooting victim would receive medical treatment, meaning there would be medical records, doctors, and nurses who would be in a position to testify that the victim was alert and competent to make a statement, and that the identification of the shooter as someone other than the defendant was accurate and credible.  Of course, trying to find these witnesses wouldn’t be easy, and it was certainly possible that after all the effort to locate them, the defense may learn that the victim was indeed incompetent, if the witnesses had any recollection of the victim at all. 

The point is to consider whether to lock the defense into the low percentage play, the one in a million shot of winning the outlier ruling, or to spend the time and effort on the higher percentage play.  Should there be no witnesses, the long shot would still be available, but to go straight for the low percentage play would be to deny the defendant his best opportunity. 

It’s the legal version of heroic efforts, the killer win.  We see if often in the media and blawgosphere, because it’s the rare and bizarre that makes news and generates interest.  And every once in a while, sometimes once in a generation, we come up with a spectacular win, a Gideon or a Miranda.  Even a Brady.  A game changer.  We all want to be responsible for a game changer.  Who wouldn’t?

But for every win that makes history, there are thousands of spectacular defeats.  Often, it’s the same argument, as cogent and correct as they may ultimately turn out to be when a court embraces it for the first time, but crashing and burning the first time made.  Maybe even the first 100 times made.  And each time the argument crashes and burns, there’s a defendant and his family that goes down in flames with it. 

What tends to distinguish the spectacular win is that the defendant whose name becomes a household word was left with no other choice.  Every avenue was closed, and going for broke was all that was left.  You know, “freedom is just another word for nothing left to lose.”  We can afford to get a little crazy when that’s all we have left, and it’s often the crazy argument, the out of the box defense, that gives rise to these spectacular wins.  The problem is that the vast majority of these efforts produce stunning defeats.  Fascinating cases for lawyers, but horrific losses for defendants.

I hate throwing cold water on an interesting theory, an audacious approach, especially when it’s one that could have a monumental positive impact if it prevails.  Like everyone else, there’s a voice in the back of my head that spurs me on toward changing the unfairness, the injustice, the ugliness, pettiness and nastiness of the criminal justice system, when I see that special case that offers an opportunity to make a grand statement.

But I’ve got a client to represent.  As much as it would be beyond cool to come up with a complex, sophisticated, game-changing theory that would make my client’s name a household word, the interests of the defendant have to come first.  Always use the most viable defense, the one with the greatest chance of success, over the spectacular.  Better to be a hero to one, even if it means passing up the one in a million chance of being a hero to all.

When Professor Jeffrey Fagan concluded that the sun shines during the day, people like the taste of chocolate and New York City cops stop and frisk blacks and Hispanics for no particular reason, there was a collective yawn.  It’s not like everybody didn’t already know this.  Bob Herbert takes up arms over the obvious in his column in the New York Times.

The police in New York City are not just permitted, they are encouraged to trample on the rights of black and Hispanic New Yorkers by relentlessly enforcing the city’s degrading, unlawful and outright racist stop-and-frisk policy. Hundreds of thousands of wholly innocent individuals, most of them young, are routinely humiliated by the police, day in and day out, year after shameful year.

The rate of gun seizures is near zero — 0.15 guns seized for every 100 stops. “The N.Y.P.D. stop-and-frisk tactics,” wrote Professor Fagan, “produce rates of seizures of guns or other contraband that are no greater than would be produced simply by chance.”

More important, after studying six years’ worth of data, the professor concluded that many of the millions of stops are violations of the Constitution. One of a number of constitutional problems, according to Professor Fagan, is that the police frequently use race or national origin rather than reasonable suspicion as the basis for the stops.

Got it.  Check.  We’re all shocked.  So what?

The Center for Constitutional Rights, which filed the class-action suit, wants the Police Department barred from engaging in what the center describes as race-based and “suspicionless stops and frisks.”

Now I like the Center for Constitutional Rights as much as the next guy.  No, I really do.  But what exactly is the relief they seek from this class-action?  An order telling the cops not to do what they are already prohibited from doing?  Wow, then they’ll really feel bad.  “You should be ashamed of yourselves, you coppers.  Don’t do anything unlawful again!”

Yeah, that’ll fix ’em good.

This is a problem of massive proportions.  We’re talking about millions, MILLIONS, of stop and frisks over a period of six years of completely, totally, 110% innocent people.

From 2004 through 2009, city police officers stopped people on the street and checked them out nearly three million times. Many were patted down, frisked, made to sprawl face down on the ground, or spread-eagle themselves against a wall or over the hood of a car. Nearly 90 percent of the people stopped were completely innocent of any wrongdoing.

While the remedy for an unconstitutional stop and frisk that results in an arrest may (or may not) be suppression, the 90% ordered to kiss pavement and get some boot-love while wandering hands touch private parts get nothing.  Zero, zippo, nada.  There’s no incentive for the police not to stop and frisk at will because there’s no price to be paid for it.  Find something and get an arrest.  Find nothing and move on to the next black man (and by that, I do not mean white men in black robes, in which case the problem would be fixed lickety-split).

The well-intended, angry but naive reader at this point wants to scream, they should sue those nasty cops for every penny they’ve got.  Well that’s not going to happen, for  laundry list of reason, so let’s just get past it as it’s been explained ad nauseam why it’s not feasible.

Struggling with this question, however, I’ve come up with a solution.  Every time a cop frisks someone and comes up empty, he should have to pay the person $10.  Not so much as to strike fear in the wallet of a police officer, but enough to make a cop think twice before hassling someone for nothing.  After, ten dollars here and ten dollars there, and pretty soon you’re talking about a day without donuts.

Okay, it’s not a foolproof plan.  It’s got some flaws, like the cop who refuses to pay over the $10 and leaves the friskee without recourse.  Or the addicts begging for a frisk so they can get their next fix.

But no class-action decision is going to change anything on the streets, any more than another column by Bob Herbert about a policy that everyone knows stinks, and yet continues unabated, is going to make the police feel really badly about humiliating blacks and Hispanics.

We need recourse.  We need redress.  We need a way to stop this rampant refusal to honor a person’s constitutional right to walk the streets of New York City without being subject to one’s constitutional rights being violated at will.  The courts won’t do it.  The cops won’t do it.  The politicians won’t do it.  Heck, they all encourage it, though they would never exactly say so.

So anybody have a viable answer?  We could certainly use one.

The law is tested by bad cases and worse defendants, and Efrain Rosa was both.  Having sexually molested two boys and shown them images of others on his computer, Rosa was someone who needed to be stopped.  From the Second Circuit decision :

Based on the information provided to him by Deputy Sheriff Burke and another officer, the sworn statements of the two boys and one of the mothers, and his own specialized computer training, Investigator Blake prepared a search warrant application and affidavit, which he then presented to Granby Town Justice Bruce Wells in connection with his request for a search warrant of Rosa’s apartment.

The warrant was executed and evidence seized.  The warrant was sloppy and bad, covering pretty much everything under the sun.  Rosa moved to suppress and lost.  On appeal, the court held:

Rosa challenges the district court’s denial of his motion to suppress physical evidence seized from his apartment, arguing that officers violated the Fourth Amendment by executing an overbroad search warrant that was so plainly defective that the good faith exception to the exclusionary rule does not apply. While we agree with Rosa that the search warrant fails for lack of particularity and, in light of Groh v. Ramirez, 540 U.S. 551 (2004), cannot be cured by reference to unincorporated, unattached supporting documents, we conclude that the district court correctly refused to exclude the resulting evidence, and therefore AFFIRM.

Talk about a non-sequitur.  After reciting all the usual background caselaw, the court makes a sharp right and goes down a rather extraordinary path.

A violation of the Fourth Amendment does not necessarily result in the application of the exclusionary rule, however. “Indeed, exclusion has always been our last resort, not our first impulse.” Herring v. United States, 129 S. Ct. 695, 700 (2009) (internal quotation marks omitted).

Application of the exclusionary rule depends on the “efficacy of the rule in deterring Fourth Amendment violations in the future” as well as a determination that “the benefits of deterrence… outweigh the costs.” Id.

Herring?  Herring?  Herring?  You’ll recall that Herring  was the awful decision “forgiving” the police negligence in failing to remove a vacated warrant from a database, and another officer using that warrant as the basis for a search and seizure before the mistake was discovered.  Oops.

In this instance, officers in Coffee County, Ala., arrested a man, Bennie Dean Herring, in 2004 after being informed by the Sheriff’s Department in neighboring Dale County that he was the subject of an outstanding warrant. But the warrant, although still in Dale County’s computerized database, had in fact been withdrawn five months earlier. In the 10 or 15 minutes it took for the Dale County officers to realize their error, the Coffee County officers had already stopped Mr. Herring, handcuffed him, and searched him and his truck, finding methamphetamine and an unloaded pistol.

Following the Herring decision, Kurt Scheidegger suggested that some wag judges would read it to incorporate a new element into suppression, not merely showing that the 4th Amendment was violated “but also that there was no “deliberate, reckless, or grossly negligent conduct.”  His dream was my nightmare.

At first blush, the answer of course is “nah, that’s not what it said.”  Kent ignores the attenuation language.  Kent hates the exclusionary rule, preferring instead a right without a remedy because it’s good for his political agenda. 

But he has a point, much as I hate to admit it.  Roberts’ language for the majority does suggest that the remedy, the only remedy, is contingent on proof that the violation was due to “deliberate, reckless or grossly negligent conduct.”  It says it right there in the opinion.  It’s not like he made this up.  Must this be proven?

The answer, from my reading of Herring, was that this view ignored the critical distinction of Herring, also in the language of the majority opinion, that the mistake must be “attenuated” from the violation.  In Herring, the mistake was the failure to remove the vacated warrant from the database in another county by other police personnel.

In Rosa, the mistake was in preparing a facially overbroad warrant, in which no police officer could in good faith rely due to its obvious overbreadth.  To overcome this, the court indulges in some curious slight of hand:

In this case, a reasonably well trained officer is not chargeable with knowledge that this search was illegal in the particular circumstances before us. While we may no longer rely on unincorporated, unattached supporting documents to cure a constitutionally defective warrant, those documents are still relevant to our determination of whether the officers acted in good faith, because they contribute to our assessment of the officers’ conduct in a particular case.

So while the court is precluded from relying on “unincorporated, unattached supporting documents to cure a constitutionally defective warrant,” the police are not for purposes of the court deciding whether they were acting in good faith.  So much for Groh v. Ramirez.  The court may be legally precluded from holding good faith, but that doesn’t stop them from  finding it somewhere else on the exact same basis.

Yet the primary distinguishing factor of Herring, that the mistake was so attenuated from the search that imposition of the remedy of suppression would serve no purpose, was completely ignored.  Remember the rubric and forget the rationale. 

Upon examining the circumstances of the case, we conclude that the officers acted reasonably and that the exclusionary rule would serve little deterrent purpose in this case. Given the time pressures and the content of the application and the affidavit, it is only reasonable to conclude that the failure to ensure that the items to be seized were properly limited under the express terms of the warrant was simply an inadvertent error that was the product of “isolated negligence.” Herring, 129 S. Ct. at 698.

Moreover, the Court has made clear since Leon that while the objective inquiries underlying the good faith exception and qualified immunity are the same, see Groh, 540 U.S. at 565 n.8, application of the exclusionary rule requires the additional determination that the officers’ conduct was “sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system,” Herring, 129 S. Ct. at 702. Because there is no evidence that Investigator Blake and his team of officers actually relied on the defective warrant, as opposed to their knowledge of the investigation and the contemplated limits of the town justice’s authorization, in executing the search, the requisite levels of deliberateness and culpability justifying suppression are lacking.

(Emphasis added.)  Whether this wholesale adoption of Scheidegger’s dream scenario reflects the Second Circuit’s approach toward suppression in all instances, or only where a defendant is as despicable as Rosa, remains to be seen,   For the moment, however, it appears that the court has concluded that a conceded violation of the 4th Amendment need not result in a remedy absent the subjective “requisite levels of deliberateness and culpability” by the police.

Under the facts of this case, we conclude that the benefits of deterrence do not outweigh the costs. In so holding, however, we reiterate the importance of law enforcement’s compliance with the probable cause and particularity requirements of the Fourth Amendment and emphasize that application of the exclusionary rule will vary in accordance with the facts of each case.

So it’s not that the 4th Amendment isn’t a nice right any longer, but that its violation only results in a remedy if done by a bad cop.  And there’s no telling what, if any, violation will be tolerated until after the court decides.  Now there’s deterrence for you.

The boondoggle of Continuing Legal Education, so often lacking in relevence to trench lawyers or so frequently taught by those whose knowledge and experience are, shall we say, underwhelming, is a constant source of irritation for lawyers.  It thus struck me, when a mind as sharp as Orin Kerr’s offered a CLE at Volokh Conspiracy, that it commanded attention.

This past summer, I was elected to serve on the Steering Committee of the Criminal Law and Individual Rights Section of the District of Columbia Bar. As part of my ‘steering’ duties, I wanted to steer readers to an interesting brown bag lunch we’re putting on next Monday, Representing Cooperators in Criminal Cases. Details, with a link to the registration page, are here.

It’s very impressive that Orin was “elected to serve” ona steeting committee.  Most steering committees have to pay to get anyone to join.  To get elected usually requires missing a meeting.  Yet Orin’s mention suggests a certain pride of accomplishment.  Good for him!  We can never have enough people who desire to hold official positions.

And what is there to learn?  Representing cooperators. Snitches. Rats.  Don’t make that face.

There’s much to know about representing the rat.  No, it’s not just directions from your office to the United States Attorney’s office.  No, it’s not just to remember to bring knee pads and a vente mochaccino (with lots of whipped) from Starbucks.  Hardly.

Experienced prosecutors and defense counsel will discuss the mechanics, advantages, and common pitfalls of client cooperation with the government.  Topics will include: Attorney and client proffers; Seeking immunity, deferred prosecutions, and plea agreements; Negotiating proffer and cooperation agreements; The factors prosecutors consider before granting concessions for cooperation; The pros and cons of transactional immunity, use and derivative use immunity, letter immunity, and court-ordered immunity; Preparing your client for interviews, the rigors of cooperation, and the collateral consequences; Staying in the government’s good graces after agreeing to cooperate.

That’s right, boys  and girls.  Staying in the government’s good graces is critical and often spells the difference between that 5K1.1 that you sucked so hard to get and the deep belly laugh as they haul your client off to prison after he gave up his mother.  Why do you think the barrista is so happy to see you, knowing that you will be buying vente mochaccinos for years to come to keep your assistant happy.  One cup and they own you.

Matters so serious and complex as staying in the government’s good graces can’t be taught by just anyone.  Obviously, there will be the requisite assortment of government lawyers, who will each explain their beverage preferences (and never forget Hawkeye’s admonition, “what’s a drink without a nosh?”).  But this CLE offers the huge advantage of some of the finest and most experienced lawyers from the defense side when it comes to bending one’s knee.

Everyone gets incensed at what they perceive to be a wrong, an injustice, especially when it related to them.  Some are inclined to act out, to say things they later regret.  The beauty of putting one’s arguments in writing, however, is that we can reflect on every word rather than utter the first one that comes to mind.  For this reason, California lawyer Paul Hupp is, well, unpersuasive.

Hupp received an adverse decision from the 9th Circuit on his personal bankruptcy case.  Kevin Underhill explains:

This case has a long and tortured history, but it looks like it began as a bankruptcy case in which the debtor wanted to discharge (among other things) student loans. The main issue on appeal was whether he had shown “undue hardship,” which in turn requires a showing of “good faith efforts” to pay back the loans and “insurmountable barriers” to doing so.

According to the debtor, his efforts were not just good-faith, but “heroic.” According to the bankruptcy court, though, not so much: “For most of this decade,” the court wrote, instead of working “[Debtor] continued his education in law school and then spent several years pursuing lawsuits in an attempt to eliminate the student loan debt, not pay it.” Debtor appealed and lost.

Emotionally charged.  Hard times.  Frustration.  All likely true.  So Hupp did what any good lawyer would do; he petitioned for rehearing.  Having lost once, he apparently decided to change directions a bit, and be a tad more forceful in his argument:

Second, let Plaintiff make this very clear hear and now at the beginning of this petition — this Court is now on notice that public will no longer tolerate violations of the Constitution, by the Congress or the judges/judiciary that think they can rig the system, violating basic constitutional rights (such as due process of law) and engage in these acts with impunity.

Plaintiff has news for these slime ball, piece of shit, ass clown judges (Bowie, Canby, Thomas and Fletcher-this means you) that think they are going to rig the system and railroad the poor and innocent — such as blocking the discovery process so the poor cannot defend themselves, commit perjury in their orders and a host of other constitutional violations, and do it with impunity — that is simply not going to happen in this case. You cock suckers are now on notice.
 
The facts of this case are going to come out, one way or the other.  Remember that bitches.

An opening designed to catch one’s attention for sure, but effective?  It clearly conveys a seething, threatening, explosive anger, but being angry does not, in itself, change many minds.  It’s not likely that Hupp’s rhetoric was going to be effective. 

Still, he knew enough to include legal argument along with his invective, but he had a curious way of ending each argument.  For example, the crux of his case hinged on whether he met the “undue hardship” test, and he sought to address it in his most lawyerly manner:

11 U.S.C. § 523(a)(8)- Undue Hardship” Test Is Vague, Ambiguous And Overly Board – 11 U.S.C. § 523(a)(8) the “undue hardship” test is unconstitutional because it is vague, ambiguous and overly broad, and cannot be validly or reliably interpreted. That fact has been well documented by Expert Witnesses in this case. And that ambiguity is exactly what has happened in the present case — nothing but vague and ambiguous bullshit catch phrases. These loser judges didn’t even apply the so-called “Nys” application. Hey, no surprise there-this Court has left that ambiguity and vagueness in place on purpose, so they can railroad the innocent. Sorry bitches, this issue will be addressed-one way or the other.

Once again, there’s a certain clarity to Hupp’s argument. And yet, it doesn’t seem to be presented in the most persuasive fashion.  He goes on in the same vein, argument after argument.  Inexplicably, he seems inordinately fond of the word “bitches.”

In case it’s unclear, this is not a winning strategy.  Perhaps it felt good to Hupp to send this petition to the court, though I have to wonder whether, after a little more deliberation, the bloom is off the thorn.  To no one’s surprise, Hupp’s petition was denied.  To everyone’s surprise, it was only denied.  No referral to the United States Attorney for threats, nor even the disciplinary committee for impropriety.

Underhill uses this petition, reluctantly, as a “teachable moment,” that one should be circumspect in threatening civil unrest unless you’ve got the goods to back it up.  Hupp, like Bluto in Animal House, failed to command a following.  That makes one appear a bit silly.  While Kevin reminds us that it’s never a good idea to threaten a federal judge, it appears that Hupp’s threat lack the credibility to do more than raise a chuckle.

As for those who troll the internet to express their anger and frustration at the government by screaming threats and epithets, do you find Hupp’s argument’s compelling?  If not, you may want to reconsider your compulsion to make similar points in the hope of stirring the populace to action.  But at least you’ve shown the good sense to play the fool online rather than in front of the 9th Circuit.

Lux Alptraum expected a pleasant flight back from Chicago to LaGuardia.  Who doesn’t look forward to landing in Queens?  When her seat mate sat down, he seemed pleasant enough.  Then came the iPad.  From Jalopnik :

But as the plane started moving, and he pulled out his iPad, I started to get a bad feeling about things. At first I gave him the benefit of the doubt: who among us hasn’t wanted to flout the electronics rule? Who among us really thinks that that one iPad is going to send the plane crashing to its doom? I figured he was just trying get one over on the flight crew, and that, when they inevitably asked him to turn the iPad off, he’d politely honor their request and that would be that.

As I’d predicted, one of the flight attendants did come over and ask Mr. No-Fly to turn off his iPad. But instead of simply apologizing and turning off his iPad, my neighbor responded with, “Wait, so you mean that if my iPad is on, the entire plane can’t take off? I had no idea I had so much power!”

No doubt he thought he was being funny.  When waiting for a plane to take off, nothing is funny.  After turning it off, he played the game again, and again was caught and admonished.

The second time the flight attendant asked Mr. No-Fly to turn off his iPad, he was less forgiving. This time, there were threats involved: if the iPad wasn’t turned off, the plane would go back to the gate, and police could explain FAA regulations to the offending passenger in person. Shortly after this second warning, the plane’s captain came on the intercom to remind passengers that, yes, the electronics rule was an FAA regulation and serious business, and something that needed to be followed. That seemed to do the trick: Mr. No-Fly finally stowed his iPad, and it seemed, at last, that we could all put this whole nasty business behind us.

The plane was now facing an hour and a half wait to take off, and so Alptraum’s seat mate asked for an alcoholic beverage, having already been denied one addiction.  The stew refused.

This set him off again. I didn’t quite catch his side of the argument, but the flight attendant—who’d clearly been warned about him by her coworker—announced that she wasn’t a waitress, but a safety professional, and that dealing with his petty concerns was not her priority. In fact, she was ready to throw him off the plane right then and there.

The plane finally took off, but it was decided that he was not a good candidate for heavy drinking, and the flight crew refused to serve him a drink.  He decided to engage in another fight.

And not just a fight: a fight that involved Mr. No-Fly getting out of his seat and following the beverage cart as it made its way to the very back of the plane. I’m not sure why he thought this was a good idea, I’m not sure how he thought it was going to get him alcohol: I suppose he just assumed that since he hadn’t gotten into any real trouble yet, this would be just another infraction that he could talk his way out of.

When finally the plane landed at LaGuardia Airport, Alptraum assumed that her “interesting flight” was over and all would go home to sleep it off.  Instead, he was met by police.

I thought they might have let him off easy, that he might have just gotten some sort of ticket and been allowed to go on his way. But in the cab line outside LaGuardia, one of the flight attendants told me that, not only was he arrested, he’d also be added to the no-fly list for a pretty long time.

Let there be no doubt whatsoever that this fellow was a monumental jerk.  I’m surprised I can’t guess who it is, since we have so few monumental jerks in New York.  His behavior was atrociously rude and shockingly narcissistic.  We have so few narcissists as well.  And he did, of course, violate the rule against electronic devices.  Damn the allure of the iPad.

But the No-Fly list isn’t a punishment for bad boys, or a means of removing annoying people from the ranks of air travelers.  As the Transportation Safety Administration explains:

The “No-Fly” list has been an essential element of the aviation security – it keeps known terrorists off planes. TSA and our Federal partners, including the intelligence and law enforcement communities, have worked together to combine our collective knowledge into one list that protects our country, transportation systems, and airline passengers.

Or anyone who pisses off a stewardess.  And those who can’t control their iPad addiction.

It’s not that anyone, myself included, will feel any particular sympathy toward this fellow, and few of us would want him to plop his butt down in the seat next to us, or even on the same plane, but this is not what the No-Fly list is for.  Then again, as long as there is a list, and the list keeps people off planes with the government’s might, why not make the flight crew’s life a little happier and use it to keep the major annoyances out of their hair.  Oh, come on.  What could it hurt to take a list designed to protect us from terrorists and use it to remove annoyances.

It’s not like it could ever happen to us.  It’s not like we have iPads.

When law students look at a courthouse, they see a land of opportunity.  So too did Damon Ridley.  Except Ridley wasn’t a law student.  Or a lawyer.  From the Cleveland Cincinnati Herald :

Damon Ridley, a former bailiff in the Hamilton County Common Pleas Court of Judge John “Skip’’ West, was sentenced April 29 to 14 months in prison after a jury a month ago ruled he attempted to obtain a bribe from a defendant by promising him he could reduce his sentence.

Ridley had promised drug dealer Charles Johnson in a meeting at a ball field near Spring Grove Cemetery that for money he could get his sen­tence reduced. Johnson had being convicted of a drug charge in West’s court, and testified during Ridley’s trial he gave Ridley $1,000 to have his punishment to be administered by West reduced.

It’s not that Ridley did anything, or had the ability to do anything, to influence Judge “Skip” West’s and reduce Johnson’s sentence.  But then, it’s not like he charged a lot either. 

Chances are pretty good that any member of the court staff, from clerk to bailiff (using whatever names are given in any particular jurisdiction), has some great opportunities here.  Not that they necessarily have the ability to affect a disposition, though I wouldn’t ignore that possibility entirely as judges often ask the nice folks they work with every day their thoughts about a case or person.  But people talk.

After the last case is called, and the lawyers and litigants walk out of a courtroom, eyes roll, heads shake and words are uttered.  People often believe that judges go back to the solitude of their chambers and ponder the decisions they are required to make.  Sometimes the decisions are made before the first word of argument emits from counsel’s mouth.  Sometimes the decision is done before the echo of the last word dies out.  Sometimes, the folks who work the courtroom know what that decision will be.

Marketable?  You bet.  But more importantly, it offers an opportunity to those inclined toward entrepreneurialism.  After all, it’s the American way.

A defendant facing sentence doesn’t know, in the absence of a done deal, what number will come out.  Most believe that there’s influence to be had somewhere, and that the powerful and savvy know how to play the game better than others.  And if they can gain access to influence, even if it costs them a few bucks, it’s money well spent.  Ridley merely played into the myth.

It’s unclear from the story whether Ridley knew in advance what sentence West would impose on “drug dealer” Johnson, or whether this was just an easy touch for a guy with some extra cash and the will to blow it.  Either way, Ridley was well positioned to take advantage.  It’s not like Ridley planned to do anything bad, provided you don’t consider lightening Johnson’s load a problem.  But if a drug dealer wants to waste his money by handing it over to a hard-working court clerk, why should Ridley be so prissy not to gracefully accept it?

Damon Ridley was sentenced, following his conviction, by Common Pleas Judge Norbert Nadel, who used the opportunity to express his feelings.

Nadel admonished Ridley for messing up his life by associat­ing with bad people. “You are a nice guy who associated with thugs. Why were you down there doing that? When you wash your hands in garbage, you smell like that,’’ Nadel said. “It rubs off on you every time.’’ Ridley has denied using information he obtained in West’s courtroom to bribe Johnson. He also told Nadel he would continue to associate with his friends whom Nadel described as “thugs.’’

For obvious reasons, Nadel’s post-judicial future as an inspirational speaker is limited.

Nadel said sentencing Ridley was not pleasant for him in light of the positive circumstances in his life. “However, there are overriding circum­stances,’’ Nadel said. “You were an officer of the court and in a position of trust, and you violated that trust. It tends to lessen public confidence in the entire system of justice.’’

Tends?  One might go a step farther, as in it fundamentally undermines the legal system when a court clerk sells purported influence.  But that’s just me projecting my sensibilities on Norbert. 

This may well have been a good case to use for general deterrant purposes, rather than focus on Ridley’s association with unsavory characters.  And that’s just the people he hung with in court.  It not only feeds into every paranoid’s dream, but destroys the credibility of all who participate in the legal system and maintain their integrity in the face of rife opportunity.  We could all make some extra money if we just didn’t mind lying, cheating and stealing.  Let’s try to keep that stuff under wraps, Norbert, no matter how “unpleasant” it may be.

H/T Steve Magas

Every once in a while, somebody who ought to know better says something so breathtakingly stupid as to command attention.  The honor today goes to Colorado District Attorney Martin Beeson who, along with his staff of 14 prosecutors, covers Pitkin, Garfield and Rio Blanco counties, which includes “ritzy” ski resort, Aspen.

From the Aspen Daily News, via Jeff Gamso, the statements stem from one of the most critical aspects of any elected official’s function, getting more money.  You see, Beeson was being asked to cut his budget by 5% by the Pitkin County Commissioners, akin to having a forced circumcision without anesthesia in front of all the hot girls in your high school gym class.  Beeson struck back.

Beeson met with the Pitkin County commissioners this week, asking for a $600,000-plus contribution to his $3 million budget covering the tri-county area. He declined to cut his budget by 5 percent, as the commissioners had asked, and the county board appears poised to grant his full request.

A bit of a budgetary swing?  Maybe if it was you, but no biggie for a guy like Beeson, who knows how to put on his man-pants.  They ask for a decrease?  You just “decline”.  Is there a problem?

Beeson has good reason to not merely refuse the “request” of the purse-string holders, but let them know what he expects them to cough up.  After all, how is he supposed to keep evil under wraps without a budget that “is largely inflated by the cost of investigating cases, and paying for witnesses and experts to travel here and give testimony.”  It’s not like he can let the police, who have their own budget, do all the work for him.

And lest you think he’s being greedy, consider that money goes to public defenders as well, about 20% of what the prosecutor gets, even though they handle more than 60% of the cases.  Fortunately, this differential is easily handled by the low salaries paid.

Some may surmise that there is a certain unfairness to all of this, perhaps even a lack of parity between the prosecution and defense functions.  Beeson clears up this fallacy:

Asked about the public defender’s budget after his Aspen meeting on Tuesday, Beeson criticized the office for abusing the 6th Amendment right to a defense counsel by needlessly frustrating the DA’s efforts and using legal loopholes to suppress incriminating evidence against their clients.

“Public defenders are not defenders of the public,” Beeson said. “They are not serving the public good. They are taxpayer-funded attorneys for criminals.”

Come on.  Admit it.  He’s got you there. 

Gamso tries to take Beeson on:

From the New York County Lawyers Association press release:

Be there or be square.  No word on what they will be serving for dinner.