She’s long had her finger on the pulse of “justice” when it came to having an opinion on the right and wrong of the world, but my daughter, my eldest, went numb when she saw it in the mail.  It was a jury duty notice with her name on it.  “You’re a lawyer, get me out of it,” was her immediate reaction.  Justice, schmustice.

“Sorry, kiddo,” I responded.  “It’s your turn.”  She went ashen and silent.  Rarely does she go silent.  I relished the moment.

Her number was low.  There was no doubt that she would be required to show, and little doubt that it would be the first day of her week of duty.  She was doomed.  There was no way out. 

Since she doesn’t drive (anticipating no doubt that she will have either a chauffeur or father to take her wherever she needs to go for the rest of her natural life), I drove her to the courthouse.  It gave us a chance to talk.

I do not want to do this.

Why?  You always complain about how unfair the law is. This is you opportunity to do something about it.

I do not want to do this. I have more important things to do.

They’ll survive without you on Facebook.

I do not want to do this. It’s boring.

Did anybody promise you that every responsibility in life is fun?  Do you think I was having fun before you were toilet trained?

I do not want to do this.  It’s a waste of time.

Imagine if you were accused of a crime and your life depended on a jury.  Would you want that jury to be made up of only people who wanted to be on jury duty.  Think about it.

I do not want to do this.  I’m hungry.

It’s the price we pay for trying to have a system that works.  Without people like you, we don’t stand a chance.  Here’s a bag of food I prepared for you.  And I drink.  And a book.

I do not want to do this.  They all crazy.

Who’s crazy?  You don’t know. I don’t know. Maybe everyone is. Maybe no one is.  That’s why we need jurors to figure it out. 

I do not want to do this.

We’re here. Go through those doors and you’ll see a sign for jury duty.  Just go in there and they’ll let you know what to do.  I know you don’t want to do this, but you have to do this.

I know.  Thanks for the ride, Daddy.

You’re welcome.  Have a nice day, and I love you.

Nobody who isn’t insane wants to go to jury duty.  But we do it anyway because it’s our responsibility.  Even if it’s boring and they’re crazy.  Without real people willing to serve as jurors, there’s no chance of the system working.  Just do it.

Update:  And the verdict is in.

Jury Duty: Service or Punishment?

 

So, after reading my father’s lovely take on my jury duty experience, I feel it necessary to talk about what really went down today and what REALLY happens in the jury room.

 

First of, it is nothing like what you see in the movies. To put it lightly, jury duty is boring.  In the beginning, they showed us a video with Diane Sawyer and the dude from Sixty Minutes, Ed Bradley (or whatever his name is) telling us how exciting jury duty is and how it’s such an honor to be chosen. Pish posh.  It’s not only boring but, if you’re not called, a complete waste of time. It also did not help that a judge came out to tell us how we should learn something from this experience and see it as a civil duty. Blah, blah, blah was all I heard, Please, the only honorable thing that happened was when I was handed my slip and told was free to go after sitting for 4 ½ hours waiting for my name to be called.

 

So, that was my experience as a “non-juror”, and for those of you who are excited about jury duty, there is something seriously wrong with you.

The accused CraigsList killer, medical student Philip Markoff, is dead of an apparent suicide.  He maintained his innocence and died an innocent man, depriving the family of the victim, Julissa Brisman, of a trial, a conviction, and a sentence.  They will autopsy the body and investigate the jail.  They will opine on why Markoff did this, knowing full well that the only person with the answer is Markoff and they’re just making noise.

Like it or not, Markoff is dead and that’s the end of it.  But Doug Berman at Sentencing Law & Policy raises a very provocative question.

Of course, if Philip Markoff truly was innocent of murder, his suicide compounds the tragedy of a wrongful accusation (and further heightens the risk that the real killer will never be sought or found).  But assuming he was guilty, my first reaction here is to be pleased.  By killing himself, Markoff saved a lot of time, money and energy for those who would be tasked with prosecuting and defending him.  And the family of his victim would, I hope, get some measure of closure from Markoff’s death.

Doug describes his position as “utilitarian”, sparing everyone the trouble and expense of a trial and ending the matter with little muss and fuss.  But he’s put his position out there for scrutiny, realizing that others may see things differently.

I wonder, however, if everyone share my reaction, which is obviously very utilitarian.  For anyone who embraces a more retributivist or expressive/educative or even restorative justice perspective, perhaps Markoff’s death is more frustrating than pleasing.  By taking his own life, Markoff in a sense was able to escape the traditional societal process of seeking and imposing justice on a wrong-doer.  (I suppose a deeply religious retributivist might take comfort in the notion he will meet justice in the afterlife, but I am not even sure if a belief in this kind higher justice is enough to make one pleased Markoff sped his own journey to the afterlife.)

I’ve no doubt that there are many people who are of the view that if anyone accused of a crime cares to take his own life, we would be remiss not to offer them the rope. 

Some of the commenters to Doug’s post find his “utilitarian” view to be heartless (and one call’s it mindless, though it’s anything but).  Think of the fellow who brings a gun to a work and mows down a dozen unsuspecting co-workers before turning the gun on himself.  Do we question his suicide?  No, because we’re comfortable with the fact of his guilt and his choice of outcomes.  That he executed sentence on himself takes the onus off us.  Hey, his choice, both in the act and the conclusion.

We can’t say that here.  We don’t know whether Markoff killed himself because he’s guilty or something else.  And we’ll never know. 

What if he left a suicide note that stated he was guilty, guilty as sin, and he couldn’t live with himself? Would that change our view?

The family of the victim feels that Markoff has stolen their right to closure.  While it’s all academic now, the notion that a conviction somehow makes the pain of a murdered child go away is usually mistaken.  After they achieve “closure” by conviction and sentence, they realize that it was a false hope.  There’s no closure.  Just a hole that can never be filled.  For the sake of the families, I wish there was closure.  They deserve some measure of comfort for their loss.  They latch onto the prosecution because there is nothing else to grab.  It’s not much.

By committing suicide, Philip Markoff did one of the few things he could to control his own fate.  He could have stood his ground and fought, but he chose not to do so.  Does that mean he was guilty or had given up hope? 

Clearly, the Markoff suicide brings the issue of guilt to an end.  There will be no trial.  There will be no witnesses, no arguments, no risk of an acquittal or conviction.  There will be no cost and no spectacle.  It is very utilitarian.

And yet, it feels like such a poor way to reach a conclusion.  My own view is that a suicide, under these circumstances, is a very unsatisfying end to this case, but then no death sits well with me, with certain exceptions for very certain reasons.  While I can appreciate Doug’s perspective, I can’t be pleased.  Not at all.  There will be no applause for this suicide here.

About a week after September 11, 2001, people across the nation took ownership of what we called the Site and everyone else called Ground Zero.  By we, I mean those of us who were within the sphere of the flames.  My seat was on the 51st Floor of the Woolworth Building facing the World Trade Center.  

I had the best view of the Site of anyone in the world.  You doubt me?  Life Magazine took its photograph of the site from my desk chair.  I never looked at it, but it was there.  Those of us in my suite wanted to see the Site rebuilt as quickly as possible.  We wanted new skyscrapers where the old ones had been.  This was our Manhattan, and we wanted it back.

The families of the people who died had a different idea.  They wanted a shrine.  They called it “hallowed ground.”  And so, the war over what would become of the Site began.  People from Des Moines thought they got a vote.  The victims families were fighting amongst themselves.  The only thing that wasn’t happening was the rebuilding of the Site.  It was a big wound, a gash, that sat there, ugly and useless.  Vendors sold trinkets to tourists who came to see the Site and clogged the sidewalks.

It had been about six months before I was allowed to return to my office.  It took another two months for my telephone service to be restored.  As I sat around with nothing to do, I listened to pundits and plumbers talk about the Site as if it was theirs.

It’s happening all over again because they want to build a Mosque where the old Burlington Coat Factory store had been.  I’d been in there a few times but never bought anything. It was down the block, to the west, of my building which sided on Park Place. 

President Obama says that we neither favor nor punish anyone because of their religion, though he offers no opinion as to the wisdom of putting a Mosque so close to Ground Zero.  There’s nothing controversial about this.  Mayor Michael Bloomberg and Congressman Jerry Nadler of Manhattan agree.  One is a Republican, the other a Democrat.  So what if Nadler waddles instead of walks, or Bloomberg is a billionaire.  In New York, we respect a self-made man.

According to the news, two thirds of America thinks this is a terrible idea, disrespectful.  I rely on that number since I haven’t had occasion to ask two thirds of America, but I’m fairly sure that the vast majority of them haven’t got the slightest clue what they’re talking about.  Forget Congressman Peter King’s position.  He’s from Long Island, and he’ll attack anything that smells of the Democrats.  We like him because he’s a bulldog, but we don’t take his barking seriously.  People elsewhere should understand that.

To those in Des Moines, or Kansas City, or San Diego, who want to believe that they get to have an opinion as to the area surrounding the Site, what you out-of-towners call Ground Zero, here’s a lesson in Manhattan geography.  One city block is a sufficient difference to distinguish between countries. Half a block is enough to change climate zones.  Entire socio-economic walls can exist on different sides of a single building.  One of our buildings can be a zip code.  You have nothing like it.

If someone was trying to build a Mosque on the Site, there would be one debate.  But building a Mosque where the old Burlington Coat Factory used to be isn’t the Site.  Not even close.  It’s the equivalent of building it ten miles away in Houston. It’s a different neighborhood, climate, time zone. There are a couple of nudie bars, even another tiny Mosque, that far away, not to mention dozens of stores selling cheap junk.  It’s not a pretty neighborhood.  It’s not what people who don’t know Manhattan think it is. Not even close.

There’s a reason all the elected officials of both stripes in Manhattan think this whole debate is nonsense.  They’ve been there and know what they’re talking about.  This is being used by politicians to manufacture a debate that doesn’t exist.  They are selling a fantasy to people who don’t know any better.  This Mosque has absolutely nothing to do with the Site.  It doesn’t besmirch anyone’s memory.  It might as well be in another country for it’s impact on anything. 

Build a Mosque.  Build an office tower,  Build a Starbucks.  Whatever.  Just don’t let lower Manhattan atrophy as people from elsewhere argue about things of which they understand little and know nothing.  It’s not some extended graveyard.  If people really wanted to make a statement about America, the World Trade Center should have been rebuilt on the Site immediately to show that no one dictates through terrorism what we do.  Instead, it’s a political football nearly a decade later for people who know nothing about Manhattan.  When did America become a nation of weepy hand-wringers?

If you had been here, you would have bought a trinket and felt proud of yourself for being a part of the tragedy before going home to whatever you call your city.  Be happy it didn’t happen where you live and work, and stay out of things you know nothing about.  This is Manhattan, and two city blocks is a world away.

Update: Here’s another New Yorker’s view of the issue.  I can’t help but wonder how many nice folks in Idaho will find that this video reinforces their hatred of New York.

It was the worst carnage in Buffalo in three decades, which means that they had to arrest somebody pronto.  Four dead outside the City Grill. Four wounded, including a guy celebrating his wedding anniversary. Oh boy, somebody has to pay.  Why not Keith Johnson?  After all, he was just released on parole.  He’s perfect.

Except it wasn’t him.

A parolee released from prison just two and a half weeks ago was arrested Saturday in connection with the worst carnage the City of Buffalo has experienced in at least three decades.

But before the day ended, law enforcement officials said they think they got the wrong man.

“We are having serious second thoughts,” said Erie County District Attorney Frank A. Sedita III. “I have serious reservations about whether we have the right guy here.”

Sedita is going to court this morning to dismiss the charges against Johnson.

The extraordinary move by law enforcement to change course after a murder arrest occurred after reviewing video and photos from the scene, and interviews with additional witnesses, Sedita said.

“I looked at the evidence, along with four or five detectives, and the commissioner is here as well. There are certain discrepancies of people and clothing.”

Dang.  Here we have a perfectly good defendant and now we have to let him go because the video shows he’s the wrong guy.  Well, this is certainly embarrassing.

(Keith Johnson arrested by SWAT Team: “One of these guys is not like the other…”)

On the one hand, it’s awfully thoughtful of Sedita to dismiss the charges against Johnson, him being the wrong guy and all.  They certainly could have deep-sixed the video and prayed that there were no other videos that came out and made them look like liars and idiots.

On the other hand, had there not been videos that conflicted with the “capture by SWAT team” of an innocent man, Keith Johnson would have been prosecuted as the worst mass murderer in Buffalo in decades.   And believe me, his release on parole would have been trotted out every time his name was mentioned.  Urrggg.  Evil parolee.

Media reports that I’ve seen provide no information on why Keith Johnson was arrested as the murderer, other than to note that he’s a parolee.  Perhaps there’s a sound reason for his arrest.  Perhaps they needed a warm body to blame and he was available.  In either event, wouldn’t it seem reasonable for the police to have taken a look at the video before sending in the SWAT team? 

You know, first figure out who did it before arresting someone?

When Erie County District Attorney Sedita has the murder charges against Keith Johnson dismissed this morning, what will he say to him?  My guess is nothing, but if he does, it will likely be closer to “stay out of trouble” than “sorry for having you falsely arrested.”  Getting it wrong is just the price of living in a free society. 

After the City of New York issued its Request for Proposals that would eliminate the need for the assignment of indigent defense to private lawyers, or 18-B as it’s known, the five county bar associations brought suit.   A sigh of relief rose from 18-B lawyers across the City. 

The press release was heavy on Gideon and concern for indigent defendants, but the gist of the issue was that the City froze the county bar associations out of the process, when they were entitled to have input.  They didn’t like being ignored, and filed suit on June 2nd.  The good news is that rumors are everywhere, based on a draft stipulation that circulated about two weeks ago, that the case has been settled.  The bad news is that the county bar associations got what they wanted, some feigned respect so they don’t look like toothless tigers in the eyes of their members, and sold the 18-B lawyers out.  Stabbed them in the back might be a better way to express it, since the lawyers thought that somebody gave a damn about them and supported the bar associations efforts. 

Genay Ann Leitman, president of the New York Criminal Bar Association (the one that covers New York City), realized that once the settlement was approved and became public, it would be too late.  The burial would be over and all she could do then was stare at the grave.  She decided not to let that happen, and sent off a letter.

I write as the President of the New York Criminal Bar Association (“NYCBA”), an affiliate of the National Association of Criminal Defense Lawyers (“NACDL”) and the oldest criminal defense bar association in the City of New York.  Our members include a significant number of the 18-B attorneys practicing in the five boroughs of this City, as well as members of the Legal Aid Society and the alternate defenders.  We have been informed that the county bar associations intend to enter into a stipulated settlement with the City of New York that, in essence, signals the death of the private indigent defense bar in this City. We urge you not to permit a settlement without a  public examination of the effects such an agreement will have on indigent defendants and the attorneys in this city that represent them.  Assuming that the present settlement resembles the “draft stipulation” that had been leaked to the public two weeks ago, then the settlement is a mistake of monumental proportions that shall adversely affect indigent defense in this City for years to come.

Genay goes on to extol the virtues of the current system and the lawyers who participate in it.

Members of the private bar who do indigent defense work are independent, experienced veterans with different views, incentives and attitudes toward the defense of their clients than the overworked, overloaded, underpaid and usually young public defenders. Without meaning in any way to denigrate the work of the Legal Aid Society or alternate defenders who do fine work as well, there is no doubt that the private defense bar contains many of the very best criminal defense lawyers in this City. Indeed, this is underscored through the very fact that 18-B counsel are charged with the sole duty to represent the indigent accused of homicide. Furthermore, year after year, the annual statistics kept by the Appellate Divisions in this City clearly show, for example, that the vast majority of cases tried are by 18-B counsel. Why is this so? Because the independent, private attorneys have different views and incentives than the over-worked public defender with 150, or 200, or more, open pending cases. And putting cynicism aside that the private indigent bar tries more cases because of the economic incentive, there are many, many, cases that really ought to be tried, but which for whatever reason end in guilty pleas.

While it’s difficult to accept Genay’s proposition that “if it ain’t broke, don’t fix it,” as there are substantial aspects of the 18-B system that could use improvement, it remains that the evisceration of the system, whether by unilateral fiat of the City or by settlement with the 5 county bar associations who clearly couldn’t care less about criminal defense lawyers or indigent defendants (unless they also happen to have a sweet personal injury case), would prove disastrous. 

If this settlement – as we understand it – is permitted to go forward, then indigent defense by the private bar in NYC is doomed. Phrases like “will remain substantially the same” are a minefield for the unwary. If the bar associations or this Court, are lulled into the belief that even with a new conflict defender’s office(s), that 18-B will remain “substantially the same”, then the bar associations and this Court are being misled. Without arraignment shifts, or on call days, a rapid atrophy will set in and the 18-B Bar, with over 1000 practitioners who have tied their very lives and fate to the defense of the indigent for many, many, years and who neglected following other career paths in the past so that they may engage in this laudable endeavor, will be undeservedly destroyed.

I’ve never been a huge fan of the 18-B system, what I’ve called “welfare for lawyers” because of its abuse by some and its reliance by too many as the sole basis for their “private practice.”  It’s one thing to supplement a practice with some 18-B work, but when a lawyer’s entire practice is based on doing indigent defense, something is very wrong.  There are some great lawyers doing 18-B and some really awful lawyers doing 18-B.  But no lawyer can claim to be a private practitioner when she lives off checks from the county.

However, that doesn’t mean that the wholesale elimination of 18-B is the answer.  Indeed, it’s the death knell for a very large swathe of the criminal defense bar, particularly at a time when money is tight, private cases scarce and lawyers are hanging on by their fingernails.  The ability to supplement a private practice with some indigent work spells the difference between survival as a criminal defense lawyer and doing real estate closing.  Oops, there aren’t many of those to be done either. Make that working at Dairy Queen.

As Genay notes, albeit with an excess of caution for fear of offending the brethren on the public dole, the 18-B bar adds a significant dimension to indigent defense, trying more cases and working under an entirely different incentive system, where lawyers need not take more cases than they can handle, aren’t overwhelmed with warm (and poor) bodies and may be more inclined to fight when they aren’t looking at the volume under which the Legal Aid Society operates.  The 18-B lawyers fulfill a purpose, even if there are some who don’t deserve a file. 

What’s most disturbing about this whimpering potential resolution to the crisis is how the county bar associations appear to have sold out the criminal defense bar.  It’s hardly surprising, of course, as the criminal defense bar never had much to do with the county bar associations, which were there for the civil lawyers, and is why criminal defense lawyers formed their own bar associations.  After all, civil lawyers don’t want to get too close to criminal lawyers lest something rub off on them and get their suits all dirty.

But it’s the county bars that were given the juice in the legislation to participate in indigent defense decisions.  It was all very formal and serious at the time, with power and politicis trumping any actual concern for indigents, and it now appears that as long as the City pays lip service to the county bars, the fate of indigents and the criminal defense bar can be tossed to the wind.  They only care about the City not “dissing” them; they don’t actually care what happens to poor criminal defendants (unless they also have a sweet personal injury case).

The New York Criminal Bar Association is staring at a conflation of threats against the criminal defense bar that could bring down criminal defense as we know it.  Genay and the Board are showing some real guts in facing the problems and standing up for criminal defense lawyers. 

It’s certainly fair for a criminal defense lawyer to use anything at his disposal to help his client.  Not just fair, in fact, but obligatory (within the bounds of the law, of course).  But when the same can be accomplished without wreaking havoc on those who have enough problems to deal with, can’t we show just the tiniest bit of thought and sensitivity?

From Leslie Packer, PhD, at the TS+ Blog :

Brian Bowling has a news report in the Pittsburgh Tribune-Review about a legal defense strategy that concerns me. As background: a man pleaded guilty to possession, receipt and transportation of child pornography. When the defense presented a forensic psychologist to argue for leniency in sentencing, the psychologist told the court that the defendant became attracted to underage girls and collected child pornography because (in part) Tourette’s Syndrome and his isolated childhood derailed the development of normal relationships with women. Having created the mis-impression that Tourette’s Syndrome might contribute to pedophilia, the defense compounded the problem even more by lumping hoarding or obsessive-compulsive behaviors with Tourette’s Syndrome:

Hardy amassed thousands of images and videos of child pornography, videotaped neighborhood children playing and stole girls’ panties from homes he visited, according to court documents. In online chats with other child pornography collectors, Hardy said “he would most like to rape 8-year-old girls but would rape any girls from 2 to 15 years of age,” court records show.

[The forensic psychologist] said Tourette syndrome causes people to obsessively collect or “hoard” things. That helps explains the 60 hard drives and other digital media police found when they searched Hardy’s home, she said.

“He collected more pornography than anyone could ever look at,” she said.

Is it any wonder people may be fearful of revealing their TS diagnosis when a court is being told by a psychologist that Tourette’s Syndrome caused or contributed to compulsive hoarding of pornography or pedophilia?

Because people who suffer from Tourette’s Syndrome don’t have enough to deal with.  No longer are they just social pariahs for the risk of their shouting out curses, but now they’re going to rape toddlers as well.  Is there any room left on the island with the lepers?

Hearing the defense, AUSA Craig Haller comes up with this brainstorm in response:

If anything, the combination of Tourette syndrome and pedophilia makes Hardy more of a risk to society because it means he has less control over his impulses, Haller argued.

Haller must be referring to that lack of impulse control the Tourette’s Syndrome sufferers have over their desire to rape little girls.  Except for the fact that this doesn’t exist, it’s a great argument to lock people with TS away forever.

The irony of this misuse of TS as a viable explanation for the defendant’s conduct is that a potential root could be the social isolation and stigma endured because the defendant suffered from TS, not because he had TS per se.  Rather than explain the root cause accurately, the defense contributes to the misunderstanding of Tourette’s and the likelihood of further isolation and stigmatization by adding pedophilia to the list of really bad things one can expect from someone suffering from TS. 

It’s sheer nonsense, and by no stretch of the imagination does Tourette’s cause someone to be a pedophile, but we all know how much we hate peds and how fearful we are of people who do weird stuff, like TS sufferers, so why not mash them all together and make life for people with TS as miserable as humanly possible.

No one, including Dr. Packer, argues against the use of whatever is available to serve the needs of a criminal defendant, whether in defense to the charge or sentence.  But it doesn’t further the interests of criminal defendants to falsely and needlessly impugn people who already have to endure too much.  Let’s not contribute to the stupidity of society and the suffering of those who did nothing to deserve it in the name of defending a client.  We can make our point without doing harm to others, and those who suffer from Tourette’s Syndrome clearly don’t need to be further smeared because of careless and sloppy defense work.

Make the effort.  Do no harm.

Via Kash Hill* at ATL, the 9th Circuit addressed the question of whether the installation of a GPS tracking device on a suspect’s car, a very hot issue with some split decisions across the country, is an illegal search and seizure. 

The Ninth Circuit got in on the GPS-Fourth Amendment throwdown too. As noted by How Appealing, a Ninth Circuit panel — consisting of two of the court’s more conservative members, Diarmuid O’Scannlain and Randy Smith, and Judge Charles Wolle (S.D. Iowa), sitting by designation — ruled that police officers who placed a GPS device on the underbed of a suspected drug dealer’s car while it was parked outside of his house did not violate his constitutional rights.

In order to establish a reasonable expectation of privacy in [his] driveway, [Pineda-Moreno] must support that expectation by detailing the special features of the driveway itself (i.e. enclosures, barriers, lack of visibility from the street) or the nature of activities performed upon it.”

Pineda-Moreno offers no such evidence. To the contrary, the driveway had no gate, no “No Trespassing” signs, and no features to prevent someone standing in the street from seeing the entire driveway.   Additionally, one of the investigating agents testified that “an individual going up to the house to deliver the newspaper or to visit someone would have to go through the driveway to get to the house.”

If a neighborhood child had walked up Pineda-Moreno’s driveway and crawled under his Jeep to retrieve a lost ball or runaway cat, Pineda-Moreno would have no grounds to complain.   Thus, because Pineda-Moreno did not take steps to exclude passersby from his driveway, he cannot claim a reasonable expectation of privacy in it, regardless of whether a portion of it was located within the curtilage of his home.

The unanimous decision from the conservative wing of the court didn’t sit well with Chief Judge Alex Kozinski, who had the opportunity to speak his mind in dissent from denial of rehearing en banc.  He first went after the notion that the police are held to the standard of the most wayward child:

The panel authorizes police to do not only what invited strangers could, but also uninvited children—in this case crawl under the car to retrieve a ball and tinker with the undercarriage. But there’s no limit to what neighborhood kids will do, given half a chance: They’ll jump the fence, crawl under the porch, pick fruit from the trees, set fire to the cat and micturate on the azaleas. To say that the police may do on your property what urchins might do spells the end of Fourth Amendment protections for most people’s curtilage.

But aside from that, Judge Kozinski raised an issue that rarely gets aired.

The very rich will still be able to protect their privacy with the aid of electric gates, tall fences, security booths, remote cameras, motion sensors and roving patrols, but the vast majority of the 60 million people living in the Ninth Circuit will see their privacy materially diminished by the panel’s ruling. Open driveways, unenclosed porches, basement doors left unlocked, back doors left ajar, yard gates left unlatched, garage doors that don’t quite close, ladders propped up under an open window will all be considered invitations for police to sneak in on the theory that a neighborhood child might, in which case, the homeowner “would have no grounds to complain.”

There’s been much talk about diversity on the bench, but there’s one kind of diversity that doesn’t exist: No truly poor people are appointed as federal judges, or as state judges for that matter. Judges, regardless of race, ethnicity or sex, are selected from the class of people who don’t live in trailers or urban ghettos. The everyday problems of people who live in poverty are not close to our hearts and minds because that’s not how we and our friends live. Yet poor people are entitled to privacy, even if they can’t afford all the gadgets of the wealthy for ensuring it.

It’s not that all judges are fabulously wealthy, though very few have the hook to find their way to the federal bench without having achieved enough green space to meet and greet the power players at the right sort of gala balls.  But a recurring theme is that people in the system, and particularly judges, share nothing in common with the lifestyle of the poor and unknown. 

That the panel would suggest that the limitation of curtilage is meaningless with the installation of gates smacks of Marie Antoinette and breadless peasants.  No doubt that Judge O’Scannlain didn’t intend it that way, but his “sensibilities” shine through nonetheless.  You can’t help it when your conception of privacy depends on the height of your privet hedge.

Judge Kozinski’s criticism of the panel’s bias is not just biting, but really goes to the chasm between life for the masses and the world of judges.  When he writes, “no truly poor people are appointed as federal judges,” it’s too obvious for words.  How would a “truly poor” person ever get on the radar of the powerful to be considered?  The closest we could come would be trench lawyers, who by no means are “truly poor” but at least have spent some time looking into the eyes of real people, maybe coming to appreciate their world. 

Even when we get the pleasure of a judge, like Sonia Sotomayor, who came from the “urban ghetto” of the Bronx, it was via Princeton and Yale, the District Attorney’s office and the Second Circuit.  There’s nothing like Princeton and Yale to suck the ghetto out of a judge.  And the aspirations to gentle society tend to skew one’s sensibilities, and acceptance of the fact that the mass of humanity doesn’t get to conceal their curtilage behind automatic gates.

Judge Kozinksi’s point, of the lack of diversity of background and understanding on the bench, is not only real, but defies easy solution and produces a jurisprudence grounded in the sensibilities of wealth.  It’s a heck of a point to think about.

*  ATL’s token non-lawyer writer, Kashmir Hill, has just announced that she’s finally gotten a real job and is leaving David Lat for the greener pastures of Forbes magazine. I wish her the best of luck, and congratulate Kash on climbing out of the hole of the blawgosphere.  Now if she could only get a decent date.

As new lawyers are deluged with talk of social media from the True Believers, who just happen to have something to sell, those who’ve hitched their empty wagon to it and now try desperately to defend their choice and those who tried and failed, and are now very angry about the “lies” they were told, there aren’t many voices that offer an assessment without any ax to grind or horse in the race.  Matt Brown at Chandler Criminal Defense offers an honest view.

Running a small firm isn’t for the faint of heart. Running it the way Adrian and I run our criminal defense practice seems make it even tougher. You won’t see Brown & Little billboards. Clients don’t go on TV telling the world what we did for them. We have no phone book ads, no radio spots, and I can’t remember the last time we put money on the books for our Google AdWords account. If anything, this blog seems to scare away prospective clients.

Marketing for us is almost entirely socializing with other lawyers, remaining active in things we’d be doing whether we were lawyers or not, and most importantly, doing the best we can in every case. There’s a big downside to that kind of marketing.

Brown & Little came about when Matt and Adrian decided to hang out a shingle straight out of law school, a dubious proposition under the best of circumstances.  Matt knew the downside, and chose to do it anyway, proving himself to be the exception to the rule.  The lesson here is that it can be done if you’re smart, hard-working and truly dedicated to the proposition; the lesson is not that anybody can do it. 

The things we don’t do create the illusion of stability. The ignorant count Twitter followers like they’re money in the bank and calls from the back page of the phone book like they’re paying clients, not people in need of free advice without any intention of hiring a private lawyer. Oh what I’d give for the bliss of not knowing better!

These are huge lessons that hungry lawyers with decades more experience have yet to learn.  Matt’s experience mirrors my own, with the worst words to open a phone call being “I found you on the internet.”  These words almost invariably mean that the person calling has neither a case of interest nor a desire to retain counsel.  As for twitter, the best that can be said is that it’s a place to grab a few laughs.

Matt gets down to the bottom line:

A man of faith I am not, yet each month the phone seems to ring and provide me peace of mind. Some months are good, others not so good. You don’t which which one it’s going to be until it’s too late. Luckily, they’ve never been so bad that Brown & Little couldn’t cope. I feel blessed, but I never feel secure, no matter how much money’s in the bank. It’s a strange sensation knowing that the source of your income in the future is people you’ve probably never met coming from sources you probably don’t expect, and there’s no guarantee anyone will come in the door at all.

That’s the way it feels until the day you shut off the lights for the last time,  You never know when, or if, the phone will ring again.  If you work hard and do right by your clients, it does.  It’s not the number of twitter followers, and certainly not the number of blog posts you’ve written, that assures your continued viability. 

There are plenty of puffed claims by new lawyers of how social media made them fabulous, but Matt Brown is telling the real story, unvarnished by the self-serving deceit.  Others, operating under the marketing principle that you are what Google says you are, can lie to others (and themselves) all they want about the great success they enjoy because they’ve become Social Media Rock Stars.  They live in a fantasy, but feigning success won’t give them what Matt Brown has. 

Matt is one of a number of new lawyers to be found blogging and twitting, but he stands out for his honesty and sincerity.  Unlike so many, who spend their time crafting a careful marketing online persona or compensating for the apparent hole in their real life where there should be flesh and blood people, Matt has never succumbed to the shameless touting and self-promotion, or whining about how hard and inconvenient the practice of law can be.  He never takes his eye off the reason he’s there, to defend his clients.

I’ve never stood next to Matt as he tried a case, nor read his motions or briefs, so I can’t talk to the quality of his work product, but if there’s anything to be learned from attitude, understanding and work ethic, Matt Brown is the exception to the rule.  If he’s half the lawyer he sounds like, he’s going to be one heck of a criminal defense lawyer.

Wendy Murphy is right.  Wow, I never thought I would tap out those words on my keyboard, but she is.  Radley Balko posts about how loud beats accuracy when it comes to TV punditry, and points to Murhpy’s own words in support.

“Lots of folks who voiced the prosecution position in the beginning [of the Duke case] gave up because they faced a lot of criticism, and that’s never my style.” She notes that she’s invited on cable shows to argue for a particular side. “You have to appreciate my role as a pundit is to draw inferences and make arguments on behalf of the side which I’m assigned,” she says. “So of course it’s going to sound like I’m arguing in favor of ‘guilty.’ That’s the opposite of what the defense pundit is doing, which is arguing that they’re innocent.”

From which Radley concludes:

It’s all theater, you see. She’s just playing a part. It’s fine if she slanders some people, ruins some reputations, spouts flat falsehoods, and generally dumbs down the public discourse. Because it’s just entertainment. It’s what pundits do.

Radley says she’s “partially right.”  I say she nailed it.  Not because I agree that this is how it should be, but because this is the mean lesson one learns from being a media whore.  They want three things from their commentator:  Look pretty, give provocative sound bites and fill air time.  That you could be totally wrong, absurdly so, means nothing to them.  They’re just moving onto the next segment once you’re done, after which everything is forgotten anyway.

It’s not that they wouldn’t prefer to have a pundit with a clue, provided they look pretty (which is the foremost criteria, especially for a female pundit).  It’s that they just don’t care enough to let accuracy get in the way of a good sound bite.  And they know a Wendy Murphy will always give good bite.

I’ve been there.  I know it, only too well.   Way back when MSNBC used to do 6 hour stints with lawyers doing the color commentary on the court case of the day, I was a regular doing the defense side.  Once an hour, we would be expected to sit at a desk and do a five minute stint, me and whoever was doing the “former prosecutor” job that day.  Our five minutes would consist of two questions, each taking up about 90 seconds including some mischaracterization of the nature of the legal issue, and concluding with the words “how do you feel?”  We had ten seconds to respond before the talking head turned elsewhere.

One slow day caught up with us.  The “former prosecutor” and I got bored playing cards, waiting for our next stint, and there was absolutely nothing worthwhile to say on the case du jour.  We had just finished our stint with Ashley Banfield (back when she was blond and didn’t wear her “interested” glasses), and some unknown kid in a peculiar Caribbean-green-colored shirt was the next hour’s anchor.  We decided to goof with the kid by switching sides.  I would take the prosecutor side and the former prosecutor would pretend to be the defense.

The anchor, Rick Sanchez, was very nice and solicitous, as they sat us at our desk, and we nodded nicely back, knowing that there would be someone else we didn’t know there in an hour.  He ran through his question and we responded.  Just backward.  Rick didn’t skip a beat, and we filled our five minutes like good little lawyers.  Just backward.  Nobody, not Sanchez, not a producer, nobody, even noticed.  Our sound bites were good.  Our time was filled.  And everybody was happy.  It meant absolutely nothing.

There are many new lawyers who would desperately love to have a shot at being on TV, doing some commentary so that their friends can see them on the Tube and they can tell the world how they are important enough to be television commentators.  Yeah, the first time is pretty cool, a real ego boost.  A while later, not so much.

So take a lesson from Wendy Murphy.  If your purpose is to get your beautiful puss on the little screen, be loud and proud.  Be outrageous.  Be false if you want, since it’s not like anybody can verify your claims.  Just make stuff up if it serves your purpose.  And if you’ve got the right smile and make wild enough noises, chances are pretty good that they’ll ask you back.  Hey, they always need lawyers to fill up air time, especially since lawyers will always work for free to get on TV and they have a ton of air time to fill.

Of course, if you have any interest in being accurate in your commentary, knowledgeable about your content and thorough and/or nuanced in your statements, you might not find being a pundit to your liking.  They just don’t have enough time or interest to allow for such irrelevant details, and they really don’t need another high maintenance lawyer clogging up the works when they might find the next Wendy Murphy waiting around the corner for her big break.

And let’s face it, wild, provocative talk makes for great TV.  And that’s what it’s really all about.

It’s a regular occurrence that someone will hop on their soap box and proclaim how the target of their self-righteous, absolutist angst is clearly, obviously, certainly wrong.  Orin Kerr  has kindly prepared a statement for you with regard to Judge Vaughn Walker’s Prop 8 decision for your convenience.

FOLLOW THE CONSTITUTION

Judge Walker’s decision on same-sex marriage is a reminder of the proper role of judges in our society. Above all else, judges should follow the Constitution. For that reason, Judge Walker’s decision should be [condemned/celebrated].

Judge Walker showed from the outset of the Prop 8 case that he had one priority: To [subvert/follow] the Rule of Law. His efforts to televise the trial, later overturned by the Supreme Court, show his true intent. Judge Walker wanted to televise the Prop 8 litigation to make sure it would be a [show trial/teaching moment] for the advocates of same-sex marriage. Although the Supreme Court did overturn his decision, Judge Walker pressed on. He never backed down. It is hard to believe that he is a Bush appointee — but this is San Francisco, after all.

Now the case heads to the Ninth Circuit Court of Appeals. The Ninth Circuit is a famously [lawless/independent] circuit. The next stop is the Supreme Court, which will probably divide 5–4 in this case. The swing vote is Justice Kennedy. Although his vote is often unpredictable, Justice Kennedy has tended to vote with the Supreme Court’s [activist/moderate] wing in cases related to homosexuality. We hope that Justice Kennedy rejects [liberal elite opinion/bigotry], follows the Constitution, and [upholds/rejects] Prop 8.

Public opinion about same-sex marriage is changing. The Supreme Court should recognize this and [step aside/ speed it along]. The choice is clear: It a choice between following the true Constitution and caving in to public pressures and opinion. We urge the Supreme Court to show the courage to follow the Constitution just as the Framers intended.

While Orin’s purpose in crafting this generic statement is to demonstrate the vapidity of the simplistic arguments of opposing sides in a debate, by those who see things with absolute clarity, but for the fact that their vision is equally applicable to the opposite view, it dovetails well with a very serious concern of mine, the proliferation of stupidity in the blawgosphere, and its enablement by those who should know better.

Like most of you, I read a number of blogs every day.  Some are written by people I think are very smart.  Some, not so smart.  Some, dumb as dirt.  I expect the dumb as dirt bloggers to be what they are.  I do not, however, expect the smart bloggers to put out stupid posts promoting half-baked, or worse, ideas.  I do not expect the smart bloggers to promote the dumb as dirt bloggers.  I certainly don’t expect the smart bloggers to promote the liars and schemers who abuse the blogosphere for their self-promotion.

Yet this is what I’m increasingly seeing, and I can’t stand it.  This was once a place where thoughtfulness prevailed, and imbeciles were unceremoniously ripped to shreds.  I know, the Happysphere thinks that’s just awful, and even imbeciles should be allowed to post unmolested, but that’s simply asinine.  As lawyers, we have an obligation to educate with integrity.  This not only obliges each of us to post accurately, but to correct those who post crap as part of their marketing scheme.  That means that the crap-posters don’t get to feel good about themselves that day.  In a perfect world, they feel badly enough to go away.  The blogosphere is far from perfect.

Most of my morning was spent pondering this dilemma.  And as I pondered, new posts appeared on my RSS feed that were pathologically bad, wrong or stupid.  I take no pleasure from criticizing other people’s posts, even though those suffering from paranoid delusions believe that’s what this mean-spirited old man is all about.  Rather, I fear that some poor, ignorant schmuck is going to read some bit of stupidity and, enjoying the benefit of confirmation bias, act upon it.  How many dead bodies is the blogosphere allowed to leave behind in its wake before anybody wakes up and calls the idiots out?

There are a handful of serious criminal defense lawyers around in a place called the blawgosphere.  There are many who don’t get to use the word “blawgosphere” to describe where they write.  They don’t write about law, or at least law as any competent lawyer would recognize it.  They write puff, pandering nonsense, self-promotional tripe.  Even some of the smart ones link to the dumb as dirt ones to be part of the gang, make friends and join in the mutual admiration society.

The blogosphere is turning to crap.  I’m disgusted.  To all those who are party to this, whether because they post the crap or enable others to post crap, you’re to blame. 

I’ve been told that other bloggers fear me, knowing that I’m one of the few who will name names and criticize those who post crap.  “Why can’t you just live and let live,” I’m asked?  Because you have taken the blawgosphere and turned it into a dump, a cesspool, a place of worthless garbage thought.  Because you lie about yourself, your practice, your experience, your knowledge, to scam a buck out of someone.  Because you demean us all.

I considered writing this morning about the crap posts of the day.  Maybe even a daily feature of the ten stupidest blog posts.  But that’s not why I write, nor where I want my blawg to be going forward. My purpose isn’t to be the sheriff of the blawgosphere, and no one elected me to the position in any event.  And then there’s the problem of how I would limit it to a mere ten. 

Rather than go on the attack today, I’m going to ask a favor of the handful of blawgs by serious criminal defense lawyers that post thoughtfully about the law. Stop enabling the idiots, the self-promoters, the liars and the panderers.  Let them fade into the obscurity they deserve until they disappear.  Anything else and we’re contributing to their scheme. 

And when someone writes something particularly stupid,* it might warrant a critical post. 

* It will be interesting to see which of the dozen or so bloggers who suffer from paranoid delusions think that I’m secretly writing about them today.  I’ll find out when they send me another of their threatening or psychotic emails, telling me how I’m obsessed with them.