A comment here yesterday caused me to check out a website that I’d never before seen, and it scared the daylights out of me.  The concept seems not merely sound, but actually quite good.  It offered lawyers “virtual law partners”:

The VIRTUAL LAW PARTNER concept: Our BRAIN TRUST. Add the Expertise of Highly-Experienced Legal Professionals to break into new practice areas and/or crack the tough cases:

For lifestyle, personal, and family reasons, some highly experienced attorneys, paralegals, and legal consultants enjoy being semi-retired or do not prefer to launch an entire law firm or work a full time job. Having earned the right to slow down and enjoy life, occasional consulting is perfect. Some top experts are willing to step in to help you add new areas of practice to your law firm and/or tackle that impossible case that is driving you nuts. They no longer want to file a new case and be chained to that courthouse for the next 2-3 years.

Why not?  There’s a lot of merit in the idea that JAMS isn’t the only job in town for the retired judge, and that some of us who’ve done our time in the trenches would like to do some legal work without the rigors of a full time practice.  But a quick romp through the website took the wind out of my sails.

Got a criminal case, here’s what it says:

Instant Law Partner’s founder has engineered with local counsel hundreds of acquittals in criminal defense, with an astonishing record of success in defending against criminal charges. He has also over-turned convictions even after trial using very advanced techniques of criminal law. Do you have a client or someone you know already in jail? Don’t give up just yet. Instant Law Partner might be able to vacate criminal convictions, working with a locally-licensed attorney.

Wow, “very advanced techniques” is an awfully intriguing phrase.  What sort of magic are they talking about that “locally-licensed” lawyers wouldn’t know about? And who is this founder who has “engineered” hundreds of acquittals. How does one “engineer” an acquittal anyway?   

Instant Law Partner is a nation-wide network of attorneys both currently in practice and retired, paralegals, law professors, former judges, experts, consultants, mediators, and researchers.

Even more wow.  Yet a thorough search of the website fails to reveal a single name of anyone in this nation-wide network.  There’s a page of testimonials by lawyers with only a single letter for their last name, who apparently have been using this service for years with unbelievable success.  One would suspect that they would be a household name amongst lawyers, given how they win the unwinnable case, but I’ve never heard of them.

While the sales pitch appears more directed at clients than lawyers, this service states that it’s only available to lawyers:

You, the Attorney (the client of Instant Law Partner) must be licensed to practice law in any and all jurisdictions and/or Courts involved in the case. Instant Law Partner only provides support services directly to licensed attorneys. This gives you confidence that we are here to support you, and we will never compete with you. We are not going to work directly with your clients or any other clients. It also simplifies our operations so we can focus on serving you. While in many if not most situations, Instant Law Partner’s experts, associates, or researchers working on your case or project will in fact be licensed attorneys, and may even be licensed in your particular State, you the Attorney must rely 100% on your own license to practice law, business license in your State, etc.

In other words, they get paid and you bear 100% of the responsibility. Well, the attorney who represents a client always bears 100% responsibility, though it’s a bit peculiar that they feel compelled to spell this out.

With so many interesting questions, coupled with the inability to find a name anywhere on the website of this lawyer who wins hundreds of acquittals in unwinnable cases, I couldn’t help but track back the source.  It appears that the Founder of this enterprise is Norman “Storm” Bradford,  His name was once listed on the website, along with a lawyer named Jon Moseley, whose office is the same as the “virtual office” of Bradford’s, and who gives the website as his own.  Avvo doesnt list any lawyer named Jon Moseley in Virginia.

There’s no indication that there is any lawyer in the United States named Norman Bradford, though he has another business called Mortgage Fraud Examiners (the “#1 Choice of Attorneys Nationally”), also at the same virtual address.  The only name on that website comes from this testimonial :

“There’s no comparison, Mortgage Fraud Examiners provides the most exact
and comprehensive forensic services available today.” – Jon Moseley, Esq.

Where have I heard that name before?  A search of Moseley appears to show that he is, indeed, a lawyer, though apparently one with some curious views :

A lawyer who worked as the campaign treasurer to GOP Senate nominee Christine O’Donnell in the 2008 race thinks that President Barack Obama is a secret Muslim.

“Yes, actually, I do,” Jonathan Moseley told TPM on Monday when asked if he still believes that Obama secretly practiced the Islamic faith.

What the search failed to reveal is that Moseley has any “very advanced techniques” for obtaining post-conviction dismissal.  It does, however, appear that he’s got some darn sweet techniques, along with Storm Bradford, for persuading overworked or underqualified lawyers to send them a payment to win that unwinnable case using their nation-wide network of experts, retired judges and law professors.  Any law professors want to fess up that they’re moonlighting for these guys?

On the internet, no one knows you’re a dog.  Thanks to Storm for leaving me a comment and putting this on my radar, and Mark Bennett for running down some of the background on this enterprise.  If anyone decides to avail themselves of this service as a result of this post, I expect a check in the mail for a third. 

Every once in a while, a defendant in search of a lawyer comes in to talk and asks the question, “what guarantee can you give me?”  This may be out of concern that he’s getting his money’s worth, just as one would ask about the guarantee for a dishwasher.  Sometimes, however, they are really asking a very different question: “Who are you going to ‘reach’ with my money to assure my freedom?” 

There’s a belief that this whole criminal justice system is a stacked game, a scam, where money talks and somebody walks.  Judges, prosecutors and witnesses get bribed, and the smart defendant waves and smiles as he walks happily out of the courthouse.  Stories like this feed this lie.

Clifford Minor, a former Essex County, N.J., prosecutor and Newark chief judge, has been indicted on charges of accepting a $3,500 bribe for arranging a false confession in a gun possession case, federal officials announced on Thursday.

Minor, 67, who runs a criminal defense practice in Newark, was part of a plan to have one man serve as the “fall guy” for another, officials said.

Minor was also a Newark police officer beforehand.  And now he’s a defendant, playing essentially every possible role in the system other than court clerk.  It appears that Minor was never exactly a straight shooter.

Minor was a controversial figure in Essex County both before and after becoming Essex County prosecutor in 1992. When Gov. Jim Florio nominated him, the New Jersey State Bar Association’s Judicial and County Prosecutor Appointments Committee refused to give him a “qualified” rating, partly because of a lack of trial experience. The committee reconsidered and Minor was appointed. He served as prosecutor for a five-year term, ending a month early in 1997.

In 1998, a state attorney general audit showed that Minor had distributed $200,000 from the state’s asset forfeiture program to community groups, businesses and churches — largely to assist urban youths — rather than the city or the police department and that he used $2,300 for staff golf outings from July 1992 to November 1997.

None of this, however, led inexorably to the conclusion that as a criminal defense lawyer, Minor would be party to bribing a witness, though it calls into question the sort of person who manages to wend his way into positions of relative power. 

Like television fiction that teaches people that cops have some magical sense that allows them to know who is guilty in the absence of evidence, or to tell when someone is lying because of a twitch in their upper left cheek, this story gives the impression that criminal defense is dirty business.  It’s not. 

The problem is that a defendant, inclined toward finding a lawyer with the juice to make a solid case disappear, will believe this is how it’s done.  When the answer to the question is that their legal fee goes toward “the time and hard work of defending them” against the accusation, they lose interest fast.  The answer of “hard work” answer doesn’t interest them in the slightest, because they believe that you’re just not the right lawyer, the one with the connections to the judge that can fix all problems with a brown paper bag filled with green.

Every now and then, a story of a judge, prosecutor or witness looking for, or willing to accept, a bribe appears.  In my time in the trenches, no judge or prosecutor has ever suggested any such possibility.  Not even close.  Nor has any fellow defense lawyer told drunken stories of how he took care of things in that fashion.  Not a whisper.

The closest it’s ever come are stories of lawyers playing defendants by telling them they would, and could, do so, and getting both the case, as well as a bag filled with extra cash, out of the deal.  No, they never bribed anyone and would make up some story about getting burned or some intervening disaster to cover their inability to perform, with the defendant none the wiser.  They scammed their client by playing on their belief that the system was dirty.  It wasn’t the system at fault, but the lawyer and client.

Bribing witnesses is another matter.  Over the years, many a defendant has suggested that the case could be fixed by a cash infusion to a witness.  Not a few witnesses have made it known that they would be happy to change their story for a price.  Some defendants have offered up others, willing to do some time for the right price, ready to confess to the crime.  Variations on this theme are fairly common.

No reputable criminal defense lawyer would ever become involved in any scheme of this sort.  It’s insane.  It’s wrong.

Criminal defense lawyers are presented with myriad opportunities to do wrong.  We represent people, some of whom are criminals.  They present us with opportunities to be criminals too.  It’s a slippery slope, and once we start the slide there is no ledge to stop our fall to the bottom.  We defend criminals.  We do not do what our clients do.  We are not criminals.  As much as our clients may not always have a firm appreciation of right and wrong, they generally expect their lawyer to be a person of higher integrity than they are.

From a pragmatic perspective, it’s just foolish to think that lawyers can play in the gutter and get away with it.  Our clients may need us for a brief period of time, but they don’t love us.  When lawyers play dirty, clients will give us up to save their own skin in a flash.  Given what we do, we’re targets from the outset, and most cops and prosecutors would like nothing better than to bag a dirty criminal defense lawyer. 

There have been times when I’ve been asked by newly-minted criminal defense lawyers about such things.  Almost to a person, they were on their way out the door of the district attorney’s office and seeking to establish themselves in a new practice.  These were stories, tall tales, they brought with them from their prosecutor days, that criminal defense lawyers were dirty, as much criminals as the people they represented.  Bizarrely, as they left behind their self-righteousness as prosecutors, they believed that they were about to join the dirty team and had no particular qualms.  Indeed, they chose to take the dirty lawyer route as the next step in their career.

When told that “no, we don’t do that,” they would be shocked and amazed.  I’ve long believed that if anyone was inclined to go south, it was the former prosecutor who was schooled in the myth that criminal defense lawyers were criminal lawyers.  No legal aid lawyer ever suggested such a thing.

Despite the fact that the criminal defense lawyers who I’ve worked with, drank with, loved, hated and known over the years have often been flawed human beings, occasionally challenged lawyers, they remain one of the most honorable, well-intended group of people around.  They do not commit crimes.

There are, unfortunately, exceptions, but this is not how criminal defense lawyers do their job.  And if it is, they deserve to be caught and prosecuted.  We are lawyers who defend people accused of crimes.  We are not criminals.

John Farmer, Jr., the dean of Rutgers-Newark law school, has an op-ed in the New York Times with a grave warning:  Either support the Nationwide Suspicious Activity Reporting Initiative or be prepared to be blown up.  As he puts it, unless we snitch on each other, “we might miss the next Timothy McVeigh.”

A YOUNG man walks into a Home Depot and buys a large quantity of acetone. Later, a young man walks into a beauty supply store and buys hydrogen peroxide. Still later, a young man is observed parked outside a nondescript federal building in a rented van, taking photographs.

No crime has been committed. But should any of these activities (acetone and hydrogen peroxide can be components for explosives) be reported to and evaluated by law enforcement officials? If they are reported, the government may infringe on privacy and civil liberties. If they are not, we might not know until it’s too late whether it was the same young man in each instance. We might miss the next Timothy McVeigh.

How ever will the government connect the dots unless somebody gives them all the dots to connect?  So what if a guy buys acetone because, well, he needs acetone.  Or maybe his wife wants to bleach her hair blond?  The wealth of perfectly lawful, not to mention normal, activity that could conceivably be a precursor to terrorism is incredibly huge, and we can’t expect the government to do this job all by itself.  If only each of us was to have the government on speed dial…

Suspicious Activity Reporting begins at the troubling intersection where law enforcement meets intelligence. Its premise is that if potential attacks are to be prevented, and not merely responded to, law enforcement must focus on precursor conduct — surveillance or “casing” of bridges or train stations, for instance — that may not itself be criminal, but may signal a coming attack.

You can never be too rich, too thin, too cautious.

The Suspicious Activity Reporting program recognizes both the necessity for a focus on precursor conduct and the potential for abuse. It strikes a balance by establishing a uniform process for gathering and sharing information. It seeks to avoid racial profiling and other law enforcement excesses by requiring that the reports be based on the evidence of suspicious conduct, not on what the person looks like or where he comes from.

So the balance is based on buying acetone?  Or taking a photo of a plane taking off?  Or any of the zillion other normal, lawful activities that some busybody thinks is suspicious because, well, they just do?  Dean Farmer tries to nail down his point:

At bottom, whether the civil liberties risks posed by the reporting program are justified turns on whether the administration’s claims about the evolving threat are true. The attacks of the last year suggest that they are. As for the idea that it will bring police departments into new territory, surely police officers have always been on the lookout for precursor conduct — burglars casing a home or bank, for instance. The difference here is one of degree.

Let’s assume, arguendo, that “evolving threats are true.”  True, true, true.  By Dean Farmer’s estimation, that would justify the collection of personal information, questioning, searching and seizing of a thousand, ten thousand, maybe even a hundred thousand, law-abiding citizens going to Home Depot, that terrorist launching pad, to find the next Timothy McVeigh.  Of course, it’s no guarantee that there won’t be another Timothy McVeigh (noting with some irony that he didn’t use the name Mohamed Atta, because Timmy is one of “ours” rather than “theirs”).

By framing the inquiry as one dependent on the “truth” of potential threats, the sacrifice of civil rights is assured.  Certainly, after 9/11 and subsequent threats such as the Underpants Bomber and the Times Square Bomber, there’s little doubt that there are threats around, though the seriousness of the latter two examples is subject to dispute.  Even further, there are any number of “threats” unseen because of the fine work of law enforcement of nipping them in the bud.  Whether real or imagined, we aren’t in a position to judge.

What is equally assured, however, is that in the name of security, this program will put ordinary folks at Home Depot (and elsewhere) under scrutiny they don’t deserve.  For every putative terrorist who buys acetone, there are maybe a million regular guys buying acetone because they happen to need some acetone.  Do we put a camera at the Home Depot checkout programmed for an acetone alert? And what if they buy exacto knives, which can be used to cut airline pilots?  Certainly they should be on the watch list.  And fertilizer, another common bomb making ingredient, also used by gardeners. 

The notion that this somehow balances potential threats with the “sacrifice of civil rights” is one only a government official could love.  There’s no balance here.  This is pure, unadulterated fear-mongering with the proviso that we trust the government because it’s here to save us from the threat. 

The problem is that this position isn’t being espoused by the head of the FBI or Homeland Security.  This is coming from the dean of a law school, whose concern for civil rights stops at the door to Home Depot.  After all, if the threat is real, then no sacrifice (of our rights) is too great.

Judge  Emory A Pitt Jr., of the Maryland Circuit Court, has dismissed felony wiretapping charges against speeding motorcyclist Anthony Graber.  From the Baltimore Sun (as the decision has yet to find its way to the internet — Update, decision here courtesy of Mirriam Seddiq).

The judge ruled that Maryland’s wire tap law allows recording of both voice and sound in areas where privacy cannot be expected. He ruled that a police officer on a traffic stop has no expectation of privacy.

“Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public,” the judge wrote. “When we exercise that power in public fora, we should not expect our actions to be shielded from public observation.”

Here that sound?  That’s the applause of the internet.  That’s the applause of the citizens of Maryland.  What it isn’t is the applause of Maryland police officers and state officials.  If it was, this situation would never have arisen to begin with.  No one forced Graber’s prosecution.  This was a deliberate decision. 

Judge Pitt’s decision, almost universally hailed, is but a lower court decision, applicable to but one defendant.  Whether it will be appealed has yet to be announced, but my expectation is that it won’t.  Why would Maryland officials want a higher court to affirm it, and thereby create precedent?  As much as this decision didn’t give cops what they want, at least it doesn’t bind them.

There could, of course, be announcement made by the various players in this melodrama, from Attorney General down to the Hartford County state’s attorney, conceding that it is perfectly lawful to record the public conduct of police officers in the State of Maryland.  The State Police could similarly stand next to the spokesman, and add their voice to the mix.  There are no announcements of any press conference to be held today.

That Anthony Graber committed no crime by videotaping the plain clothes police officer in an unmarked car, who stopped him and drew his weapon, and then announced his capacity, seems almost too obvious for words.  It’s been roundly excoriated here and elsewhere.  Video has fundamentally changed our relative understanding of how police deal with the public, no longer forcing us to rely on the claims of a “criminal” versus the police officer’s assurance of regularity.  We now know it happens, and happens with shocking regularity, because we see it happen.

The rational answer is that a police officer who doesn’t engage in impropriety has nothing to fear from being videotaped.  The heartfelt law enforcement concern is that minor, common mistakes, in the heat of the moment, are misapprehended by people who don’t, and can’t, appreciate what cops have to go through in enforcing the law while protecting their lives and the lives of others.  Videotape is a simple answer that fails to recognize the pressures of a difficult job. 

The cop sensibility isn’t entirely wrong.  It’s far easier to play Monday morning quarterback than to make perfect snap judgments in dynamic and unknown situations.  Of course, the same could be said for defendants, whose snap judgments are occasionally known to be wrong, but who are convicted on them nonetheless.  Still, it’s always easier to know the best course of action when you already know the outcome.

None of the police concerns, however, have any bearing on the claim that videotaping a police officer in the performance of his duty constitutes a crime.  These are arguments to be made in the interpretation of what’s seen on tape, but not the act of taping.  As much as the public has been indoctrinated to support the tough on crime at any cost view, there has been no support for the prosecution of Graber.  No matter how much fear they try to instill, this case has presented a clear line.

The question raised is whether this will be the death of this insanity, the effort to conceal the public performance of police from view, or just a bump in the road which the police and politicians in Maryland will try to circumvent.  Judge Pitt clearly made the right call on every level, and yet the pronouncement of death may be premature.  This is just one trial level judge’s decision.  It’s not precedent.

Somebody videotape a cop in Maryland today and see what happens. 

When the ABA announced its contest, the game being to write an essay on “What innovation will be most valuable to you in your future practice as a solo practitioner?,” my guess was that it was going to get ugly.  Rarely have I been as happily surprised to be wrong as I was to read the essay by solo Randi Menendez.

Menendez, a business lawyer in San Diego, went from legal assistant at a big firm to solo practitioner. 

Christmas Day, six years ago, I spent my 4,112th hour in the office that year. I was a mere legal assistant at a big-name law firm in Boston, and it was on that day that I realized I could be exactly where I was, doing the exact same thing, only making several times my current salary, if I were a bona fide lawyer.

Like any reasonable person, she asked those around her for advice.  What was the most important factor in deciding what to do?

“The debt!” they exclaimed. “I wouldn’t sacrifice my life, my family, my happiness to take on so much debt!” An acceptance letter to Columbia Law School, they explained, was a beeline for a miserable existence in which one’s soul was sold to Big Firm LLC for a mere $150,000 a year, plus bonus. “Who needs a soul,” one of them quipped, “when you only have a few hours each week to yourself, and those are spent dejected, alone and likely drunk as well?” It was unanimous: Going to a good school was important, but going to a cheap school was paramount.

There was also a lone voice from the corner office telling her not to worry about the debt, but consider the opportunity instead.  She ignored it and  “embraced the admonitions of the younger contingent of Big Firm LLC.” 

In her essay, the innovation Randi would find most valuable is a time machine,

Now, in my third year as a solo practitioner, that seasoned old voice I ignored as a legal assistant is the one I turn to for dependable advice and mentoring. As I listen to his wise and careful words, I contemplate a reality in which I had heeded his advice six years ago and attended a Columbia or a Yale. For my own professional aspirations, I am convinced that I have missed certain invaluable experiences, precious relationships and a myriad of opportunities over the years, due to one crucial decision I made before my career even began.

Of course, there is no such thing as a time machine.  No iPad will help.  There is no “game changer” to allow her a second chance to revisit a decision that was based on short-term myopia of youth, to give her the full wealth of opportunity she could have had if she heeded the advice of the silly old voice from the corner office.

A lot of bandwidth is dedicated to the anger and angst of new lawyers who are saddled with debt and no place to go every morning.  The law is a scam.  Law schools suck.  Lawyers are evil.  It’s certainly a very difficult time for newly-minted lawyers to find employment with Biglaw at big salaries.  Jobs are scarce.  Of course, those complaining have the ability to practice law, but no desire to find anything beyond a well-paying job.  The flip side of the lousy job market is their lousy attitude and lack of interest in actually being lawyers, but they don’t want to hear that.

The adage, you can’t see the forest through the trees, seems particularly applicable.  There are ups and downs to anything, and it can be difficult to see beyond the immediate problem, the one blocking your view of the big picture.  But there is a big picture, nonetheless.  When you’re young, ten years seems like forever.  When you get a bit older, 25 years goes in a flash.  Immediate problems that seemed so overwhelming at the time are just a fond memory, a chuckle in the scheme of things.  Age provides perspective that youth can’t see.

As one of the older guys in the blawgosphere, I’ve offered some views to newer and younger lawyers about what they have to look forward to, what they should concern themselves with now, even though other things appear more important at the moment.  I’ve told them to control their impulses, not to make fools of themselves with silly transient ideas of what’s fun and cool, I’ve seized on Dan Hull’s word, the Slackoisie, to push others to overcome youthful narcissism and entitlement, even though us boomers may be to blame for all that ails them,

Times will get better.  Lawyers aren’t going away.  We won’t be replaced by some shiny, new gadget that you desperately need on your belt or bag to show that you’re hep with the jive.  And then, you will cringe at the choices you make now, the things you say now, the thoughts that you were so certain were absolutely right.  You will wonder why you surrounded yourself with others who confirm your thoughts rather than those who challenge them.  The validation you needed so desperately as a young lawyer will prove empty and meaningless as you develop maturity.

Randi Menendez has cut off opportunity by having listened to the voices of the “younger contingent.”  They were honest to her, but they just didn’t know any better.  The good news is that she still has a wealth of opportunity, even though she will have to struggle a bit more to overcome the advice she took.  But she’s in the game, which is more than can be said for the whiners.  

If only Apple would come up iTime Machine.

At first blush, it seems reasonable.  After all, the defendant is accused to be a violent criminal, and what normal person wouldn’t be in fear of his life should this heinous miscreant know his name, maybe even his address.  Hey, he’s got children to protect.  Certainly, no rational society would subject his person and his family to harm for doing the right thing by testifying against a bad guy. 

And so prosecutors in Ohio, under a new state court rule, have refused to disclose the names of their witnesses, according to Cincinnati.com.

This time, it’s the Butler County capital trial of Calvin McKelton, who is accused of killing his girlfriend, attorney Margaret Allen of Fairfield, and Germaine Evans Sr., a witness to her July 2008 slaying. McKelton is set to go on trial Oct. 4.

In the wake of a new state court rule, prosecutors have refused to disclose nearly a dozen witnesses in the case, saying the people and their families fear for their lives.

The legal wrangling comes to a head today – a week before McKelton’s trial – when Butler County Common Pleas Judge Andrew Nastoff decides whether any of the secret witness names and statements can be released to McKelton’s defense team.

The defense response: it puts them at a major disadvantage.  You think?

The flip side of the argument is that the defense cannot possibly prepare properly for trial in the absence of witness statements and identities.  The explanation of this statement could go on for quite a while, but it’s so obvious as to be unworthy of further discussion.  Obviously, without knowing the evidence against him, the defendant cannot prepare to address it.

Sandbagging the defense is a time honored tradition.  No one wants to fight on a level playing field, and the prosecution will take advantage of the opportunity if there’s any plausible basis to do so.  When it comes to withholding witness information, it not only gives the prosecution an extreme advantage, but is backed up by an extremely good rationale.  What kind of system would we have that subjects witnesses to fear for their lives?

What this ultimately comes down to is the conflict between a defendant’s rights and the protection of witnesses.  Assuming, arguendo, that the Cincinnati prosecutors aren’t fudging the claims, abusing the opportunity and only withholding witness information when there is a credible, legitimate reason to do so, the issue is squarely framed.  The problem, obviously, is that on one side, there are societally favored folks, witnesses for the prosecution, and on the other, disfavored defendants.  Anybody want to guess who would win by popular vote?

It strikes me that this implicates two constitutional rights, the confrontation of witnesses and the effective representation of counsel, though neither sufficiently directly to provide a bright line that this rule crosses.  On a technical level, the defendant will still have the opportunity to look into the eyes of the witness, thus granted his right of confrontation in the most simplistic sense. 

But that right incorporates the right to challenge the witness, to be capable of performing an effective cross-examination of the allegations.  Such a cross includes the ability to question motive, bias, credibility.  These aren’t things that can be figured out on the fly, but require investigation and collection of evidence.  Yes, there’s actual work that goes into extemporaneous cross-examination.

Similarly, this is what effective counsel does, both in preparation for trial and execution of her examination skills.  Take away the ability to prepare, including the ability to ponder how best to approach the testimony of a witness, an often neglected aspect of the trial lawyer’s work, and you’ve severely undermined her effectiveness.

The problem with reliance on effective assistance of counsel is that the bar is so absurdly low as to make it applicable only to the most incredibly incompetent effort, rather than to establish a right to excellence.  When a lawyer is alleged to have rendered ineffective assistance of counsel, the courts generally use her “vigorous” cross-examination, objections and argument to show why the claim is meritless.  Of course, that means nothing more than the lawyer asked a bunch of questions, made a few objections and argued about something during the course of the trial.  It speaks to quantity rather than quality.  It means nothing.

Ohio’s Criminal Rule 16 was designed to expand the amount of evidence defense attorneys could receive before trial – including some police reports, witness statements and other documents that were not available before.

Under the rule, prosecutors can withhold names of witnesses and their statements to protect the witnesses from harm, coercion or intimidation.

Ian Friedman, a Cleveland defense attorney who helped write the court rule, said he believes that prosecutors must turn over at least the names of the witnesses in advance of the trial. But prosecutors can withhold the witness statements until trial if Nastoff allows it.

The rule appears to have a give-back, at least in its conception, by providing for other information to be handed over when the witness information is withheld.  Of course, this smacks of disingenuousness, as this information which should now be turned over should have been turned over all along.  So they’re denying less than they used to deny, rather than providing all that they ought to be providing?  How political.  Remember, nobody wants a level playing field.

But the statement by Friedman, a criminal defense lawyer, that he believes that prosecutors must turn over (1) “at least the names,” and (2) “in advance of trial,” shows how things go awry. Friedman’s belief doesn’t mean the prosecutors agree, and “in advance of trial” doesn’t mean at a time when the defense can make effective use of the information. We all know the joys of a Jencks Act dump at the start of the luncheon recess when we’re to cross during nap time.

The witness statements and identities under Rule 16 are to be turned over at the start of jury selection, too late to make effective use of it by investigation and research, but early enough to pretend that it doesn’t interfere with a defendant’s constitutional rights.  But it does and it will.  Yet it’s highly unlikely that people will feel too badly about it, since the rule protects the good people from the bad people, and that’s what our criminal justice system is all about.

Just one more hurdle for the defense to jump.  At least it’s not like innocent people ever get convicted based on lying testimony, false memories or bad eyewitness identifications.

While I don’t follow a lot of people on twitter, that doesn’t mean that I don’t stumble across the twits of far more than my  handful of followees.  Often, a twit comes across my screen that strikes me as interesting or curious, and I take a look at its derivation, the conversation that generated such a curious twit.

What’s amazing to me is how easy it is to essentially eavesdrop on a conversation between others, and how the twitterers involved in the conversation have no reticence in twitting their personal discussion out in public.  Do they not realize that other people, some they might “know” (in the sense that anyone knows anyone on twitter) as well as some they don’t know at all are listening in?

If this conversation was happening face to face, in a room filled with a bunch of people who were at best acquaintances and at worst people you wouldn’t talk to unless someone paid you, would you speak loud enough to make sure that everyone in the room could hear you?  Would you reveal your thoughts, or lack thereof, to anyone within earshot?

On occasion, I will ask one of the more knowledgeable people on twitter who someone is.  I do this because their biographies, the handful of words chosen by twitterers to describe themselves to the rest of the world, don’t tell me much.  You’re on a search for self-discovery and I should join you?  Who the heck are you?  Why should I care.  My favorite twitter expert (I know, I laugh to myself every time I put those two words together too), Adrian, explained that we should invite others to follow us on our “quest” on twitter.  Adrian’s bio says:

Follow me as I work to become a change agent for Big Law.

Don’t laugh.  Somebody has to break those hundred dollar bills so they can get their vente latte at Starbucks.  I assume Adrian takes a percentage, but I fail to see any reason to follow someone who makes change.  It’s not that interesting.  Yet there is an awful lot of personal information that comes with the territory,  He travels a lot, though it’s not clear how he can afford to.  He went to a play with his wife the other night, and then met Ed of Blawg Review for breakfast the next morning.  He didn’t say what he ate, but his wife showed up for breakfast too.

But Adrian is pretty careful about spouting something that looks pretty foolish in a stand alone twit.  Maybe he knows what he’s doing, because I can’t say the same about some others. 

This is where I ought to insert an example of a twit that demonstrates the point I’m about to make.  I actually have one in hand, but I’ve decided, at the last moment, not to use it.  It would be embarrassing to the twitterer, and I’m sure the twitterer didn’t realize when writing it that somebody like me would pluck it off twitter to use as an example. 

I expect to be excoriated by my conscience, Mark Bennett, for having failed to source my point and name names.  He’s right, of course, except that I’m similarly excoriated for doing exactly that and being a mean person.  So, in the exercise of discretion and editorial control, I choose to proceed in the absence of proof, and you can accept or reject what I have to say based upon my failure to provide an example.  And trust me, my example was really good.

While I may not know where you are at the moment, or with whom you’ve shared breakfast, I just learned something very important about you from your twit.  I learned that you jump to baseless conclusions.  I learned that you just tried to curry favor with someone who is unsavory or stupid.  I learned that you are indiscriminate, intemperate, intimate. 

Did you really mean to tell me this about you?

You are talking in public.  You have absolutely no clue who is listening.  You likely don’t even know the person you are talking to, even though their twitter name is familiar and you’ve been engaged with the person for a length of time.  On the internet, nobody knows you’re a dog.  But it’s awfully easy to find out if you’re a mutt.

Some people react well to us, while others give us the cold shoulder.  We try to guess why, using our own limited and usually projected knowledge to explain what happens in other people’s head.   We really don’t have a clue, or even the most basic details to make an educated guess.  One common belief is that they don’t even know us, so how can they decide not to like us. 

Under some situations, the answer is that they do indeed know us.  Not the “us” we seek to project, but the us that appears in the face we present to our pals, but exposed to anyone and everyone.  Like what we twit. 

I spoke with a lawprof the other day, who had twitted favorably about a post at the blog of one of the most notorious marketing liars around.  He was unaware of the history, and hadn’t realized the connection inadvertently made between him and the liar.  He thanked me for giving him the history.  I urged him to think first next time.  The truth is, my perception of this lawprof was that he’s a dolt for what he’d done.  Having spoken with him, and heard the explanation for his error, I learned how the error happened.

What is the likelihood that every person who reads your twit is going to speak to you, come to understand why you wrote what you wrote, and perhaps not conclude that you are someone they want nothing to do with?  For crying out loud, you are twitting in public.  There are people reading your twits and making decisions about you, and you have no idea who they are and what they think.  Rather than “networking” and “engaging,” you are undermining your reputation in the eyes of others.

Put some thought into what you twit and who you twit with.  Be discriminate.  Consider whether that very funny twit will appear funny to unknown others or make you look foolish.  When you twit with that next potential follow and praise their brilliance, consider what that says about what you think is brilliant and who you want to get in bed with.  Think about what you are telling people you don’t know, and who don’t know you, about yourself. 

Twitter is public.  What would you say aloud to a room full of people you don’t know? 

Update:  Some reactions:

What’s the big deal?  It isn’t that serious?  Who cares about twitter?  Nothing you see on twitter matters?

Nothing is ever a problem, or serious, or important, until it’s a problem,serious and important.  It’s been almost two years since Dan Solove published his prescient book, The Future of Reputation, and still people don’t get it. 

It’s true that we can’t establish a person’s positive bona fides because he says so about himself on the internet, but we can surely establish a person’s negatives by dumb, inappropriate and foolhardy nonsense a person posts online.  The two are not the same.

And as for claiming that you “don’t care” about your online reputation, you’re either a liar or a moron.  Nobody trashes their reputation online for nothing.  Again, this isn’t the same as “online reputation development,” the creation of a positive online reputation.  Think Herzbergs hygiene and motivator factors if you can’t distinguish between positive and negative impacts.  The point is that we can unintentionally trash ourselves to people we don’t know who, for whatever reason, will dismiss us because of it.  No reasonable, rational person wants this.

And finally, once someone has trashed their reputation with stupidity, don’t expect that people will look again, just to give you the benefit of a second chance. 

The reactions to this post are shockingly silly and naive, reflecting a failure to heed Solove’s warning.  In fact, the reactions are very much of the sort that makes someone else believe that you lack a depth of understanding and intelligence to make you the sort of lawyer one would want to represent them or refer cases to.  You may not be out there to develop business, but are you really out there to make others think you’re a dope?

Thinking and using good judgment shouldn’t be controversial.  That anyone would think it is may be the most damning commentary about you there can be.  Think about it.  Oops, you don’t do that, do you?

And so it comes to this :

Members of the judiciary haven’t gotten a raise in 12 years, despite lawsuits and legislation. So if they need to make ends meet, they can moonlight, Judge Jonathan Lippman told jurists in a Web broadcast on Wednesday.

“Judge Lippman is more mindful than anyone else that judges have not received even a cost-of-living raise in 12 years,” said courts spokesman David Bookstaver. “This is one way to try to alleviate the enormous financial burden placed on the judiciary.”

A New York Supreme Court Justice, which is the statewide trial level judicial position despite the misleading title, makes $136.700, plus $5,000 in expenses.  Not chopped liver, but nothing to write home about.  They earn substantially more than most criminal defense lawyers, less than first year Biglaw associates, and nearly twice the Happy number. 

While the judges’ complaints that they are underpaid aren’t always appreciated by the public, for whom that salary doesn’t put them in the category of suffering, almost no one who isn’t inclined to knee-jerk animosity concedes that this is a terrible state of affairs that should have been remedied long ago.  It wasn’t, and given the dysfunction of the New York legislature, where lawmakers want to tie judicial raises to their own because nobody, but nobody, wants to give legislators a raise, the judges have suffered.

Chief Judge Lippman has now opened the door to an alternative, allowing judges to “moonlight” provided that it’s not practicing law to avoid the obvious conflict.  Washing cars is fine.  And who’s that guy in the black robe at the counter at McDonalds?   And there’s a extra buck in it, judge, if you get me a parking space near the front.

This is embarrassing.  It’s demeaning.  If Judge Lippman’s purpose is to demonstrate to the Legislature just how disgraceful their refusal to provide a pay raise to a co-equal branch of government is, then he’s nailed it.  The potential for humiliation is huge.  Consider the photo op potential of a fast food joint staffed by people wearing black robes with one of those funny GoodBurger hats on their heads.  Great PR, right?

Granted, there are more than a few jurists who might find trouble getting a job parking cars, whether because of their personal driving records or their inability to show up for work on time.  And then there’s the temperament problem, making positions dealing with the public problematic.  Imagine Judge Judy on Saying Yes to the Dress.

If this plan is for real, however, and ignoring the time demands of moonlighting, it will create a level of awkwardness and the potential for unintended consequences that could place the judiciary in a situation that will diminish their one strength.  Remember, judges command no army and control no purse strings.  Their fiat comes from the public’s willingness to accept their decisions, their integrity and the virtue of their reasoning. 

As much as this will grate on many, the power of the judiciary depends on dignity.  That there has been a loss of dignity already may be true, but that makes it all the more important that we don’t lose any more.  We can’t afford it.  The system is already held in sufficiently low esteem to place the law at risk of being ignored and ridiculed.  Granted, some judges have had a big hand in this loss, from unreasonable delays to irrational decisions to inappropriate demeanor.  Yet there remain those judges who have upheld their oath and served us well.  More importantly, without a viable judicial branch (for better or worse), consider who we’re left with.

Perhaps the expectation is that those judges who want to get a second job will find positions that compromise neither their integrity nor the dignity of their office.  What positions those will be remains a mystery.  Whether those positions will be available to them is unknown.  And there is always the question of the long term, unintended consequence of working outside the courthouse.  They can’t all be adjunct lawprofs, bestselling romance novelists or motivational speakers.

Judge Lippman’s announcement, which reminds us that the problem, which had somewhat fallen off the radar, remains and that there is no fix in the works, or even in sight.  Maybe a decent photo op of judges demeaning themselves, a nice “will judge for food” photo of a judge sitting with a tin cup outside the courthouse, will have an impact.  But I doubt it.

Whether this new plan will offer judges any meaningful opportunity to make some decent side money (and thus relieve the Legislature of its duty to adequately fund the positions of a co-equal branch of government), or push the problem back onto the front burner, it’s a long shot with plenty of opportunity to do some serious damage to an already diminished post.   Once the dignity of the judiciary is lost, chances aren’t good that it can ever be recovered.  As far as I can tell, there’s no plan to compensate for the loss of respect that would come from having a judge working a night job.

Ever since Lawprof Danielle Citron tried to reinvent online nastiness as cyber civil rights, meaning that it’s all about discrimination against women even if it’s not, and sought to use that as a justification to curtail free speech, I’ve been on the lookout for other attempts to hijack phenomenon.  At PrawfsBlawg, another woman-hater has reared its ugly head:  Natural disasters.

Susan Kuo, a law professor at the University of South Carolina following her stint as a special Assistant United States Attorney, has turned her focus from criminal justice to social justice in disaster law.  Until now, I wasn’t even aware of there being a specialty called disaster law, as disasters had always seemed beyond jurisdiction, not to mention difficult to serve.  Kuo began a series of posts that caught my eye, beginning with this:

My overarching goal is to identify a normative legal framework that can guide efforts to fortify communities before and to rebuild after disaster.

I have no clue what this means, but it was intriguing that a normative legal framework is important to disasters.  I had always assumed that levies held back the floods.  Who knew?

Whether the disaster is a flood, hurricane, fire, tornado, or riot, preexisting social inequality and vulnerability predicts how severe and how lasting the damage will be. Accordingly, how a society grapples with disaster tells us a lot about its commitment to social justice.

Aha!  It’s rich against poor, the wealthier areas receiving the largesse of better preparation and greater resources to rebuild.  And then there’s the racial overtones, since the wealthy areas are likely white while the poorer are darker shades of pale.  Now there’s some social justice worth discussing.  You go, girl!

Kuo’s next post, however, burst my bubble.

As I mentioned in a previous post, disaster harm depends upon the vulnerability of particular groups of people and therefore implicates questions of social justice. Part of the difficulty in developing a comprehensive response to disaster, however, is that social vulnerability is a complex phenomenon. For example, women face increased gender-based violence during and after disasters. Yet, in the wake of disaster, women care for children and aging relatives, stand in line at relief offices, and otherwise hold together their communities. As I’ll discuss in a future post, the participation of women is critical to effective disaster recovery.

Huh?  No rich and poor?  No black and white?  Women face increased gender-based violence during and after disasters?  What the heck are you talking about?  There are plenty of bad things that happen during and after a natural disaster, but I’ve never seen anything to suggest that hurricanes cause men to go around beating women. 

Since lawprof Kuo is proffering a position that facially makes no sense at all, one would assume that at some point she would establish the existence of a problem, whether through proof, citation or at minimum some logical explanation of how we get from Point A to wherever the heck she is.  But since there are future posts a’coming, let’s not jump the gun and give a scholar a chance to show us the implausible is in fact the case.

In her third post, Kuo explains:

This post continues my discussion of social justice issues concerning women and disaster. Again, an adequate legal framework for development and recovery planning must recognize that women are vulnerable to disaster harm, including gender-based violence, and that they should be encouraged to participate fully in disaster recovery efforts.

Before we get to the “must recognize” part, it seems that some basis, even the tiniest, as to the existence of this phenomenon might be in order?  Sure, women are vulnerable to natural disasters, but the same wind blows everybody, not just women.  As for gender-based violence, I still have no clue who’s running around the flood waters of Katrina beating up women.  That’s got to be one warped dude.

Although there is relatively little legal scholarship in this vein, I am learning from a wealth of front-line policy work. This literature describes the differential impact of disasters on women and suggests practical approaches for mainstreaming women into the recovery process.

Is it possible that the absence of legal scholarship on the relationship between natural disasters and gender-based justice is because it’s, well, absurd?  If there is a “wealth” of front-line policy literature, this might have been a good place to, perhaps, name one.  Maybe a hyperlink.  Something?

While private groups and NGOs have successfully integrated women’s voices into disaster planning and recovery, governments have lagged behind. Even worse, the designation of government relief monies for the “head of household,” coupled with the assumption that the head is male, further disenfranchises women. This gendered notion of family affected resource distribution in post-Katrina New Orleans and after the Berkeley-Oakland wildfires in California and Hurricane Andrew in Miami. Until our policymakers recognize the importance of socially inclusive, participatory disaster management, we risk exposing susceptible groups to additional harms and perpetuate their vulnerability to future events.

So the issue is that the government fails to recognize that women can be “head of household” for disaster relief?  Well, I’m happy to hear that Brownie isn’t the guy beating up women, even if he’s denying them funds, though some proof would still be appreciated since I’ve never seen anything to suggest that the government was any worse toward women as they are toward everyone. 

No doubt women suffer from the impact of natural disasters.  As do men.  As do children.  As do dogs and cats.  This attempt to turn natural disasters, or disaster law as it’s now called, into a gender issue is preposterous.  Hurricanes don’t discriminate.  Tornadoes don’t target women.  Rich and poor, black and white, male and female, it rains on all of us.

It’s certainly difficult these days for associate professors to find new areas of scholarship, virgin territory, to plow on the way to tenure, but if you’re going to try to manufacture a gender-based issue out of whole cloth, you can’t just leap over why it’s gender-based in the first place. 

As Jeffrey Harrison notes at MoneyLaw with regard to tenure, academic freedom (and some other stuff),

You do not hear much about academic freedom from law professors because they rarely say anything controversial that anyone hears about. In fact, wouldn’t it be far more interesting if someone were listening to us? It may seem odd that there is so little controversy given the iron clad protection we have. The reasons for the quiet, I think, can be traced to the fact that straying ideologically or culturally from the mainstream (of law professors that is) means you may be labeled “difficult” or “uncollegial” and these are career killers as much a being labeled a racist, whether true or not.

One of the sacred cows of the academic orthodoxy is gender discrimination.  How else could one explain anyone putting up with Ann Bartow?   Accordingly, once some lawprof announces that she’s taken ownership of a problem and turned it into a sex discrimination issue, no one in the Academy is allowed to disagree, dispute or even question the claim without being branded a misogynist.  Kiss that tenure good-bye.  Heck, kiss that cushy job good-bye.  Since I’m not subject to Academy approval, I’m under no such constraint.

Does Susan Kuo have anything here?  I don’t see it, but then, I may not be sufficiently sensitive to the cause, so I’m prepared to consider any rational argument, substantive basis, even dubiously grounded theory, she has to offer.  Up to now, she’s got nothing.  It is because she says it is.  Clearly she hasn’t forgotten her prosecutor training.

Wouldn’t it be nice if instead of shooting blanks, Lawprof Kuo would be confident in obtaining tenure, not by going on wild, gender-based goose hunts, but by teaching law students how to be lawyers?  And if I am dead wrong about hurricanes’ hating women, then maybe Kuo might want to do a little more heavy lifting in the next post in her series and, oh, provide some basis for her claims?  It would be the scholarly thing to do. 

One of the great benefits of the blawgosphere is learning about the quirks of far away jurisdictions.  Sometimes, it leaves me with a deeper appreciation of my home base being in New York.  Other times, I wonder how it’s possible that some backwater jurisdiction can be so much smarter, so much more progressive.  This time, I stand in awe of Texas.

Sure, they have an overdeveloped affinity for killing people down there, whether by execution or shotgun if “they needed killin’.” They also have an awfully good sense of why a swearing contest at trial isn’t good enough to convict a person.  From Mark Bennett :

Add this to the list of reasons that Texas is a better place to practice criminal defense law :

Art. 38.075. Corroboration of Certain Testimony Required

(a) A defendant may not be convicted of an offense on the testimony of a person to whom the defendant made a statement against the defendant’s interest during a time when the person was imprisoned or confined in the same correctional facility as the defendant unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed. In this subsection, “correctional facility” has the meaning assigned by Section 1.07, Penal Code.

(b) Corroboration is not sufficient for the purposes of this article if the corroboration only shows that the offense was committed.

The claim of the jailhouse snitch that someone confessed, without corroboration, is legally insufficient to convict.  This is the third leg of the corroboration stool in Texas, along with the informant corroboration rule and the accomplice corroboration rule.  New York has an accomplice corroboration requirement, but that’s as progressive as it’s gotten. 

An informant or jailhouse snitch is all it takes to sustain a conviction.  In other words, put the lowest, sleaziest, most likely liar on the witness stand after the government slaps on a little lipstick and rouge, and you’ve got enough to put the Pope in prison for life.  No one has a greater incentive to lie, to say anything about anyone, than the miscreant caught who can trade his freedom for another person’s. 

With amazing regularity, defendants ask whether the cops have a videotape of them doing the deed of which they’re accused.  Their point is that if they can’t show it, how then can they prove it.  The answer is that the word of a rat is all it takes.  Mind you, ten minutes before the prosecution decided to embrace the rat with open arms for speaking the words the government wants to hear, this same individual was the most disgusting, incredible, worthless piece of smegma (Marilou: “ewwww”) on the face of the Earth.  But once the rat offers the government what it wants, he’s suddenly taller, more handsome and absolutely, totally, unquestionably the teller of truth. 

Of course it’s absurd.  There are tricks played to conceal the stench of this witness from the jury.  The sign up sheet requires that the rat “tell the truth” or no benefit comes his way.  While he certainly wants his benefit (read: freedom), the only way he gets it is to tell the truth.  That’s why he does it; that’s what he’s doing.  Yes, he was once a bad guy, but now he’s just telling the truth.  He’s turned over a new leaf.  He sees the error of his ways.  And our government, whether state or federal, has welcomed him back into the fold.

What a load of crap, and yet it works most of the time.  The problem in going to trial facing the rat is that it’s a crap shoot, rolling the dice as we often explain it.  Perhaps the rat will come off terribly in front of the jury.  Perhaps the rat will break down and admit that he’s a lying sack of rodent turd.  Perhaps he will lie and get caught in his own machinations.  Or perhaps he will be cleaned up, well prepared, and present himself as a credible witness.  Roll the dice and find out.

When it comes to the jailhouse snitch, there’s another problem that needs to be considered.  It may well be that one prisoner tells another that he committed the crime.  Inside, there’s a certain benefit to be gained by making others think you’re a criminal, a tough hombre, a man to be reckoned with.  By gaining respect within a perverse world, the odds of leaving alive and intact are increased.  If nothing else, it may spell the difference between being left alone and being the target of abuse.  While the incidence of prison rape may be overstated, it is nonetheless a very real concern.

Because of this, there is an incentive to play act being more of a criminal than one really is.  It behooves a prisoner to take some credit for crimes and acts of violence, make a show of bravado and machismo, to his fellow prisoners.  Nobody wants to find out in the shower that other prisoners don’t respect him. 

A foundational component of admissible evidence is reliability.  There are others, but evidence which, by its nature, is inherently unreliable has no business being used in court.  Rat testimony has long fallen into this category, though others disagree.  When there is an overarching motive to lie to gain a benefit, or putting it in more explicit terms, when testimony is bought and paid for, it’s inherently unreliable.  And yet it remains admissible.

The Texas statute has the saving grace of recognizing that this unreliable testimony, without corroboration, is legally insufficient to sustain a conviction.  Though still admissible, it can only be used to bolster other testimony or evidence to prove guilt.  Less than perfect, perhaps, but a whole lot better than we’ve got in New York.

Hey Albany, how does it feel to be outflanked by some yahoos from Texas?  Chuck Lavine, what the heck are you doing for us up there?  Eric Schneiderman, now that you’ve got the lock on AG, maybe you can use your clout to stop making New York look like some runner-up in the Reason Pageant.  For crying out loud, when Texas passes better laws than New York, it’s humiliating.  Get off your duffs and do something about it.