From the AP :

BP’s massive oil spill became the largest ever in the Gulf of Mexico on Thursday based on the highest of the federal government’s estimates, an ominous record that underscores the oil giant’s dire need to halt the gusher.

The oil that’s spewed for two and a half months from a blown-out well a mile under the sea hit the 140.6 million gallon mark, eclipsing the record-setting, 140-million-gallon Ixtoc I spill off Mexico’s coast from 1979 to 1980.

That’s just the oil.  Forget about the toxic dispersants.  And the oil will continue to flow.  Maybe the relief well in August will stop the flow.  Maybe.

About a month ago, I argued that the focus on blame missed the most pressing issue, that the oil continued to spew and that there was no assurance of a fix.  Whether it’s our national limited attention span that makes this “old news” after a week, or our soap opera mentality that makes us focus on the melodrama, the politics, the personalities, we have no focused on the fact that the oil continues to spew, potentially altering life as we know it in the gulf and, possibly, the planet. 

Mike at Crime & Federalism has posted a video of Fareed Zakaria on CNN discussing the media’s failure to address this travesty.

This oil spill may prove to be one of the most significant events of this generation, and the focus is on the amount of emotion demonstrated by the President.  Zakaria blames the media for playing the emotion card, but it’s unclear whether the media is misdirecting the public’s focus or merely giving the public what it craves.  He’s no doubt right that the media could, and should, maintain its integrity by being above the tear-jerker play, by reporting the news rather than pandering to the national desire for cathartic release. 

And Mike nailed it when he wrote, “Image is everything – which means that substance is nothing.”

For lawyers, who pretend to be above such pettiness as image, the self-absorption with feelings is every bit as strong and misguided as with those who swoon over the latest Twilight movie.  Soap operas are going the way of dinosaurs because they can’t compare with the melodrama of our everyday life. 

And what’s so wrong with being caught up in feelings, eschewing substance for the heart-wrenching, soul-torturing, tear-jerking fodder that some desire so deeply and feed upon as if it’s truly meaningful?  The thrill derived by feelings allows us to avoid and ignore the harshness, the unpleasantness, of a substantive reality that we readily ignore.

The oil is still spewing.  How does that make you feel?

Every person who authors a blawg for any period of time gets questions.  We get a lot of crap as well from the nutjobs, those who want something from us that we’re not inclined to give, and just plain angry people on the internet, but it’s mostly questions.  Predominant is the question, “what’s in it?”

Max Kennerly, a Philly personal injury lawyer and apparently a far bigger fan of Adrian Dayton than me, decided to offer his answer to the question.  After trashing the “blogging as a get rich quick scheme” meme, Max gets down to business.

Blogging is a pie eating contest in which the prize is: more pie.

This captures the essence of blawging better than anything I’ve ever read. 

There are marketing blawgers, but they invariably fall by the wayside as they come to grips with the fact that the ROI doesn’t fly.  There are benefits, but the idea that blawging is the path to wealth and success is nonsense.   There are lawyers who blawg only to find out, to their dismay and often anger, that they don’t write nearly as well as they think, or that others don’t appreciate their genius nearly as much as they believe they should.  To put it another way, some blawgs are just lousy. 

But what if you’ve got a decent blawg,  What if you’re an adequate writer and there are at least a handful of people outside your immediate family who are interested in your thoughts?  What’s the prize?  You get to write again another day.  If it were really a contest, then the second place prize would be to write again for two days.  And so on.

When I began, the biggest criminal defense blawg in the neighborhood was Mike Cernovich’s Crime & Federalism. written with co-blawger Norm.

Years ago Norm Pattis and I were in the zone, and had incredible readership at Crime & Federalism.  Modesty aside, the blog was hot.  Got too hot, and that’s actually what burned us both out.  People wanted a piece of you.  They wanted links.  People would get angry when they’d post a comment that we wouldn’t reply to.  (Comments are for you, not me, and thus I generally don’t respond to them.  My turf is the post, and yours is the comments.)  

People who had never done anything for you – and never would – would send you repeated e-mails asking why you haven’t linked to their site.  It really made me hate people more than I already did.  If you think a link from me is so valuable, why not offer me a bottle of wine or something as thanks?  Or add me to your site, and throw some traffic my way?

Mike makes it sound like a thrill a minute, right?  But they were great, brutal and merciless in their commentary.  Nobody got away unscathed with cheap shots, stupidity or self-promotion.  (Aside: For those who ask me why I’m still such a fan of Norm’s, despite his having donned Mr. Roger’s cardigan and become the enabler of the insipid, this is why.  Norm paid his blawging dues, and gets to be kinder and gentler if that’s what he needs to do.  Others, who never proved their mettle, do not.)  Crime & Federalism set the bar for real blawging.  It still does, even though it’s only Mike these days.  Mike’s never held back to curry favor or popularity.

So what does he get for it?  More pie.  More aggravation.  More demands on him.  More complaints.  And the opportunity to post another day.

Those used to be heady days, with discussions and barbs tossed back and forth between blawgs.  Sometimes they were kisses and other times poisoned darts, but there was life, ideas and challenges.  It meant something if you got on Mike’s radar because of what you wrote.  You weren’t going to get there by asking for a link exchange, or empathizing with him.  You had to have something incisive to add.  There were no “atta boys” for breathing.

On a good day, some blawger or commenter offered a stroke of brilliance to the discussion.  On a bad day, some nutjob ranted about himself while ripping you for not caring deeply about him.  Some days the pie was delicious.  Some days the pie tasted awful.  If you managed to get through the day, you won the prize.  You got to blawg another day.  You got more pie.

Still want to be a blawger?  Then you better love pie.

The question isn’t whether Ronell Wilson, 28, is guilty of a horrendous crime.  He is.  He shot two detectives, James V. Nemorin and Rodney J. Andrews, who were posing as gun buyers, in the back of the head on a dead end street in Staten Island.  The question is whether the arguments used against him that brought a jury to sentence him to the death penalty were proper.  The Second Circuit, in a 2-1 split, held they were not.

[W]e vacate the death sentences, and remand, because two arguments made to the jury by the prosecution — both bearing on the critical issues of remorse, acceptance of responsibility, and future dangerousness — impaired Wilson’s constitutional rights.  The government argued: [i] that Wilson put the government to its proof of guilt rather than plead guilty; and [ii] that Wilson’s allocution of remorse should be discredited because he failed to testify notwithstanding the fact that “[t]he path for that witness stand has never been blocked for Mr. Wilson.” 

As to the first argument, although a guilty plea may properly be considered to support a sentence mitigation for acceptance of responsibility, the Sixth Amendment is violated when failure to plead guilty is treated as an aggravating circumstance.  As to the second, it is a fair argument for the prosecution to say that an allocution of remorse is unsworn and uncrossed, but the Fifth Amendment is violated when the defendant is denied a charge that limits the Fifth Amendment waiver to that which is said in the allocution and the jury is invited to consider more generally that the defendant declined to testify.  These constitutional violations were not harmless beyond a reasonable doubt.

The government’s arguments have both emotional and rational appeal.  They didn’t argue that the defendant had no right to demand a trial or choose not to testify, but that he can’t exercise those rights then argue to the contrary in the penalty phrase.  The logic is unassailable.  And yet, wrong.

The point of constitutional rights is that they can be exercised without a consequent price to pay.  For whatever reasons, Wilson did what every person is fully entitled to do, put the government to its proof at a trial and elect to sit mute rather than testify.  These rights are fundamental for everyone.  Even monsters.  Especially monsters.

Just as the jury cannot be invited to draw inferences of bad intent from the exercise of rights during the guilt phase, the exercise of rights cannot be offered to prove anything during the penalty phase either.  The logic behind the argument, which isn’t perfect in that there are reasons why a defendant would put the government to its burden despite accepting responsibility for his crime, is beside the point.  But logic doesn’t have to be perfect.  Neither does the court’s adherence to the constitution’s mandate that every defendant be afforded basic rights.

The New York Times captured the requisite irrelevant union reaction:

At a news conference, Michael J. Palladino, the president of the Detectives Endowment Association, the union that represents detectives, said the ruling sent “shockwaves through the families of Detectives Nemorin and Andrews as well as the N.Y.P.D., and probably the entire law enforcement community.” He added, “Two judges out of the three have ruled in favor of a ruthless, remorseless killer of two undercover police officers.”

It’s amazing how judges all love “ruthless, remorseless killers” when it comes to a ruling that doesn’t give the cops what they demand.  There’s no fear of backlash.  The courts will continue to love cops, no matter whether the love is unrequited.  They shrug it off as necessary union posturing.

The refusal to plead, and consequent demand for a trial (since the option of everybody calling it a day and going home isn’t on the table), is typically a carrot held out by the government for a plea.  Cop the plea and get the reduction for acceptance of responsibility under the Sentencing Guidelines.  Refuse and take your chances.  It’s not that courts are precluded from giving the reduction after trial, but it’s an easy, bright-line test.  The Guidelines like bright-line tests.  So does the government.

The problem is that rights have no meaning if there’s a price to pay for exercising them.  It’s not whether Ronell Wilson is evil.  It’s not even whether Wilson deserves the death penalty, putting aside general opposition issues.  It’s that the arguments made to the jury in the penalty phase of a capital case cannot use the exercise of rights.

Wilson argued that he accepted responsibility.  The government replied that if he did, he would have pleaded guilty.

Wilson argued that he was remorseful.  The government replied that if he was, he would have taken the witness stand and said so.

Whether Wilson accepted responsibility and was remorseful is a question.  Wilson said so.  He doesn’t want to be executed.  What else would he claim?

The obvious government argument is that the court is tying its hands, depriving it of perfectly reasonable arguments to challenge Wilson’s claims.  And indeed, the ruling does tie the government’s hands.  It does deprive the government of a perfectly reasonable argument.  But that’s precisely what constitutional rights exist to do.  They are a priority choice, made in advance, that define what a defendant is entitled to do without paying a price.  Every constitutional right does that; it would be far easier to obtain evidence of guilt if cops could search and seize at will, neither cause nor warrant needed.  But the Warrant Clause ties the cops’ hands.

The Second Circuit didn’t rule against two murdered detectives and in favor of a cop killer.  It ruled in favor of the Constitution. 

Sure, the young lawyer sees the smiling face on his television screen and says to himself, “that’s what I want to be when I grow up.”  Well, not so fast.  It’s not easy to be a celebrity lawyer.  It’s not easy being Mickey Sherman.

From the AP:

BRIDGEPORT, Conn. — A celebrity attorney who represented Kennedy cousin Michael Skakel in his murder trial has agreed to plead guilty to failing to pay almost $400,000 in taxes.

Michael Sherman, who has frequently appeared on national television shows as a legal analyst, was scheduled to plead guilty Wednesday in Bridgeport to two misdemeanor counts of willful failure to pay federal income taxes.

And now Larry King hangs up his suspenders.  What’s Mickey to do?  He had a real shot to get the gig, provided Ryan Seacrest blew the audition.

How is it possible that Mickey could have racked up such a big number in unpaid taxes?  There are two theories.  Theory number one comes from the Skakel case:

Skakel, a nephew of Robert F. Kennedy’s widow, Ethel Kennedy, was convicted in 2002 in the 1975 fatal beating of his neighbor in Greenwich when they were both 15. A defense lawyer says Skakel will file an appeal challenging Sherman’s effectiveness.

Skakel’s current attorney, Hope Seeley, has said Sherman’s financial difficulties resulted in a lack of funds set aside to investigate the case before the 2002 trial. Sherman has denied that.

In other words, Mickey took the fee from Skakel that was to cover him and the expenses incurred in defending the case, and didn’t quite put it to its highest and best use.  For Skakel, at least.

Then there’s the lifestyle theory:

Sherman’s ex-wife accused him last year of failing to pay $16,000 monthly alimony, instead leading a high life that included luxury vacations, expensive hotels and restaurants, costly entertainment, dues at exclusive country clubs and expensive clothing. He promised in October to pay $241,000 to her by 2012.

Don’t feel badly for Mickey’s ex-wife.  She doesn’t need to eat much until 2012 anyway.  And what’s Mickey’s position?

Asked why Sherman didn’t pay the taxes, [Sherman’s attorney William Dow III] said, “He has substantial personal and family obligations and was focusing on his practice.”

Not quite sure what that has to do with anything.  You earn income, you pay taxes on it.  Taxes pretty much fall into the “substantial obligations” category too, and focusing on his law practice didn’t seem to do much for his partner.

In 2007, Sherman’s law firm partner, Joseph Richichi, was sentenced to 16 months in prison for failing to pay more than $600,000 in taxes.

Richichi blamed his own failing health and Sherman — saying Sherman incurred more than $1.1 million in federal tax liens on the property they owned, bounced checks and failed to pay back $25,000 Richichi loaned him to build a house.

Sounds like a basic accounting error, right?  He failed to account for all the money he owed.

My purpose in mentioning this isn’t to beat up on Mickey.  He’s got enough problems.  It’s to point out that it’s not just washed up NFL stars who end up deep in debt and trouble from financial mismanagement.  Lawyers are not endowed with magic powers that prevent them from doing something stupid and getting in trouble for it.  Especially when they seek out the high profile:  Ask for attention and there’s  a good chance you will get it, just not from the people you want.

Being a celebrity can be fun for a few minutes, but it comes at a price.  Mickey has to pay the price now.  If it gets him the Larry King gig, it may be worth it.  Otherwise, probably not.

Alan Rubin got a gig as a per diem administrative law judge for the New York City Parking Violations Bureau, meaning that he’s one of those lawyers who doesn’t have much business on his own but feels qualified to make the lives of other people miserable.  The PVB is a local quasi-judicial agency that all New Yorkers despise and distrust.  Every single one.

The reason is clear.  Nobody, but nobody, believes that the PVB is anything but a collections agency for the City.  It’s your word against the ticket agents.  It doesn’t matter how many reports appear on TV about ticket agents lies and scams, errors designed to make people pay when they did no wrong.  The assembly line grinds along, and New Yorkers are chewed up and spit out. 

And then there’s Alan Rubin, who ruled against the City and dismissed some tickets.  Huzzah!  Maybe not so huzzah. Rubin was fined $2,500 after copping a plea for accepting a “gratuity”.  From the New York Times :

“After adjudicating the Delivery Driver’s parking tickets, I told the Delivery Driver that the invoice named a brand of popcorn that I liked,” Judge Rubin is quoted as saying in the settlement agreement. “The Delivery Driver then offered to give me popcorn for free in appreciation of my having dismissed the Delivery Driver’s parking tickets. I gave the Delivery Driver my home address, and a few days later approximately six to eight bags of the popcorn were delivered to my home.”

According to the judge’s statement, he gave two bags to his grandson and “brought the rest to my office at Parking Violations Bureau to share with my colleagues.” The judge noted that he was “unaware at the time” that he was violating the city charter by accepting the freebie.

It does not seem possible that Rubin was unaware that it just might be a problem to sit in a quasi-judicial capacity and receive a gift from a litigant.  The Times seems to focus on the trivial nature of the gift, a few bags of popcorn.  That doesn’t seem possible either.  Whether it’s of significant value or just fun, it’s a gift for the performance of an official function. You can’t do that.

It doesn’t seem possible that anyone sitting in a position of adjudication could be unaware of how utterly improper it is to accept a gift.  It similarly doesn’t seem possible that a newspaper could suggest that it’s somehow less improper because it’s “only” a few bags of popcorn.  This is a hard, fast, unmovable line in the scheme of propriety.

ALJ Rubin, however, says he didn’t know that this was wrong.

According to the judge’s statement, he gave two bags to his grandson and “brought the rest to my office at Parking Violations Bureau to share with my colleagues.” The judge noted that he was “unaware at the time” that he was violating the city charter by accepting the freebie.

If this is true, the only question one can have is how someone this mind-bogglingly stupid was put in a position of adjudicating anything.  The answer can be found here:

Owen Stone, a spokesman for the city’s finance department, said that Judge Rubin earned $39.47 an hour on a per-diem basis to work in the parking bureau . . .

And you wonder why nobody trusts the PVB? 

If a 19 year old was snatched off the street, held without charges or the review of his crime by a neutral magistrate, and kept in detention for the next 8 years, we would all go nuts.  Americans of every stripe would be outraged that such a thing could happen.  It violates every notion of propriety.

Well, it happened, and nobody cared.  The reason why is simple.  The government slapped a title on this 19 year old kid, enemy combatant, otherwise known as terrorist, and we let our shoulders droop and walked away. 

Via Radley Balko, Glen Greenwald posts about Mohammed Hassen, who was ordered released by a federal judge pursuant to the Supreme Court’s decision in Boumediene, a 5-4 ruling that allowed judicial review to overcome Congress’ 2006 Military Commissions Act which denied the detained any chance to question or challenge indefinite detention.

The latest detainee to win his habeas hearing, Mohammed Hassen, is a 27-year old Yemeni imprisoned by the U.S. without charges for 8 years, since he was 19 years old.  He has “long claimed he was captured in Pakistan studying the Quran and had no ties to al Qaida,” and that “he had been unjustly rounded up in a March 2002 dragnet by Pakistani security forces in the city of Faisalabad that targeted Arabs.”  Hassen is now the third consecutive detainee ordered freed who was rounded up in that same raid.  The Obama DOJ opposed his petition even though the Bush administration had cleared him for release in 2007.  He has now spent roughly 30% of his life in a cage at Guantanamo.

When we allow rhetoric to create a war without parameters, we end up with fuzzy fear, which then justifies crazy conduct like approving the detention of anybody nabbed without regard to whether they are terrorists or, well, some poor Yemeni kid swept up as somebody who may be a bad guy. In the name of safety, we’re prepared to sacrifice Mohammed Hassen.  If his name was John Smith from Cincinnati, we might feel differently.  Thank God for Muslim names, which allows us to ignore their detention without concern or regret.

But Hassen isn’t the first to be cleared, even though we don’t hear much about him or any of the Gitmo detainees who were cleared before him.

What’s most significant about this is that Hassen is now the 36th detainee who has won his habeas hearing since the Supreme Court in 2008 ruled they have the right to such hearings — out of 50 whose petitions have been heard.  In other words, 72% of Guantanamo detainees who finally were able to obtain just minimal due process (which is what a habeas hearing is) — after years of being in a cage without charges — have been found by federal judges to be wrongfully detained.  These are people who are part of what the U.S. Government continues to insist are “the worst of the worst” who remain, and whose release is being vehemently contested by the Obama DOJ.

It’s phrases like “the worst of the worst” that do the trick.  We surely don’t know who’s bad and who’s in there by accident.  Whatever double secret info the government possesses, they aren’t telling us.  It’s understandable, since they need to keep their top secret anti-terrorist info top secret, so the terrorists don’t know that they know.  I’ve got it.  I understand about keeping things secret so the enemies of our nation can be stopped.

It’s not like the government is necessarily wrong about every person they put into a cage at Gitmo.  Some are no doubt very dangerous people, bent on destroying America and inclined to take lives without regret.  But when 72% of Guantanamo detainees have prevailed on habeas, the “worst of the worst” rhetoric seems to better reflect the government’s ability to figure out who to cage rather than the oddly-named men.

What we allow in the name of safety is shocking.  It’s a great joke, to repeat the phrase, “Trust me, I’m from the government and I’m here to help.”  Hah!  We all laugh at it. The truth, unfortunately, is that we continue to trust the government despite this funny, funny joke.  The government tells us that these detainees are terrorists, and we believe.  The government tells us that these aren’t merely terrorists, but the “worst of the worst,” and we believe.

For those of us who remember the Reagan presidency the first time around, he was a great actor.  And he was given a great script, with brilliant lines like “Trust, but verify.”  What’s wrong with following these words?  It’s not that we must distrust the government’s claim that they would never indefinitely detain someone just because their mother gave them a first name of “Mohammed”, but if he’s the “worst of the worst,” why not verify?  Then maybe some poor kid seized off the street in Pakistan might not have to spend almost a third of his life in Cuba, just in case.

I’m neither a fan of, nor apologist for, terrorists.  Not by a long shot.  I’m just not inclined to presume that anyone who believes in the faith of Islam is necessarily a terrorist.  I’m similarly disinclined to accept the word of the Pakistani police any more than I am of our own.  I believe that there are terrorists out there, and that they mean to do us harm.  If you’ve ever read one of my 9/11 posts, you would know how that event affected me personally.  Yet, I’ve chosen not to be blinded by anger and fear.

Based upon the 72% failure rate of habeas corpus review of Gitmo detainees, and the realization that these are human beings who have families, loved ones, just like we do, there is no amount of heady rhetoric that allows me to ignore what we have done, what we continue to do, to them.  Don’t tell us that they are the “worst of the worst” and expect us to shrug and say, “well then, do whatever you have to do, America.”  If you’re right, prove it.  Otherwise, let them go home.  It’s not a crime to have a first name “Mohammed”, punishable by the loss of a third of a life.

The pressure on me to change from my walkie-talkie size cellphone to the new iPhone 4 has been enormous, nearly unbearable.  I sought, and found, some balance.

Whew.  The feeling passed.

Following a series of twits about why twitter isn’t a good medium to have a thoughtful discussion, noting the need for a series of twits to make the point, a fascinating twit appeared.  It was:

Twitter is poetry to blogging’s novella. Of course it’s discussion. Elegantly obscure, but discussion nonetheless.

A brilliant analogy, but utterly false.  Worse yet, scarily conceived in a way that might draw one in by its superficial appeal (and it is superficially appealing), but promoting a notion that strikes fear in the mind of every thoughtful person.

Blogging is no novella.  Twitter is no poetry.  Cute twits do not make it a discussion, and adding the word “elegantly” before “obscure” doesn’t make it a meaningful phrase.

It’s not that twitter is not communication.  Of course it’s communication.  What it is not is a medium that permits complex communication, the transfer of fully conceived ideas in a viable fashion.  It could be used that way by making multiple twits, where sentences or paragraphs run on from twit to twit to twit, but nobody likes that.  It’s a violation of twitter etiquette to monopolize the twitter stream.  It’s just not the way to use twitter unless you’re determined to become a twitter pariah.

Twitter can be used to transmit poetry, as shown by David Giacalone, formerly of f/k/a  fame and now on twitter hiatus having decided that twitter isn’t worth the effort.  Twitter serves as a medium for David’s haiku just swell.

As to the obviousness that twitter is “discussion”, I don’t doubt the sincerity of the twitterer offering the idea, but the cognition behind it.  Is this what discussion has become in the age of text messages, emails and, well, twitter?  Is this Orwell’s nightmare on steroids?

With some regularity, I see twits that don’t make a whole lot of sense to me.  I see the same happening with others, who end up responding in a way that both demonstrates and furthers the confusion.  Sometimes it’s cleared up afterward.  Sometimes, there are hard feelings due to misunderstandings.  And these are twits of little consequence, more in the nature of twitticisms than ideas. 

I see messages sent that produce assumptive understandings, which may or may not bear any reflection of the intended meaning.  This could be the result of a tendency to jump to baseless conclusions, or the by-product of it being too difficult to find out what some “elegantly obscure” twit means.  It’s much easier to just assume.

If the trend is to believe that 140 characters is sufficient to engage in a discussion, it forces the question of what number will be insufficient. 79?  34?  Will a single character be called a discussion in the future?

It could just be me, my inability to express my thoughts within the confines of a twit.  Maybe I’m too undisciplined to make it work.  Maybe I’m too old to accept the limitations twitter imposes.  Or maybe I just can’t accept the notion that ideas can be adequately conveyed in 140 characters or less such that twitter can be deemed adequate to hold a discussion. Or maybe the problem isn’t with me at all.

If the future of discussion, however, is dependent on the ability to engage on twitter, I fear that Orwell was dead wrong.  It’s not the government that will impose newspeak on us to preclude our transmission of subversive ideas.  We will do it to ourselves.

Via Doug Berman, former Georgia representative and Libertarian candidate for president, Bob Barr, presents an op-ed in the Atlanta Journal-Constitution on the sentencing of Sholom Rubashkin from his management of a large kosher slaughterhouse and meat packing plant in Iowa. 

Rubashkin’s crimes began with hiring 389 undocumented workers, and stretched to the usual assortment of bank fraud based on his diversion of monies from a bank account that was supposed to collateralize debt to accounts that would falsely increase the appearance of his company’s profitability.  Fraud for sure, but . . . fraud worthy of a 27 year guidelines sentence for a 50 year old man?

Barr notes that Rubashkin’s sentence is really a life sentence.

Last week I was in Cedar Rapids, Iowa, where I attended a hearing in federal court at which a 50-year old man was sentenced to 27 years in federal prison – in effect, a life sentence. The defendant, Sholom Rubashkin, is not a murderer, serial rapist or child molester; he is not a drug king pin and he did not bilk hundreds of innocent investors out of billions of dollars.  Rubashkin is a first-time offender who was convicted late last year of a number of white-collar offenses stemming from his management of a large kosher slaughterhouse and meat packing plant.  For this, he received what amounts to a life sentence.

Barr notes that people are sentenced on acquitted conduct.

What the average, non-lawyer citizen – and perhaps even many lawyers who do not practice federal criminal law – probably fails to realize, is that in many other cases, such as Rubashkin’s, men and women found guilty of white collar crimes far less severe than a Bernie Madoff’s, can be sentenced for crimes alleged by the government to have been committed, but for which they were found innocent or which were actually dropped by the government.  In Rubashkin’s case, for example, even though the government initially charged him with immigration-related crimes, he was never actually tried for such activities (and, in a subsequent, state court trial, was found innocent of similar charges).  Yet, these alleged violations could be and were used to increase his eventual sentence for the financial crimes of which he was convicted.

Barr notes that the government can manipulate the extent of “loss” to enhance a sentence beyond the loss caused or intended by the defendant.

Rubashkin also saw his punishment enhanced because of the manner in which the judge elected to calculate the amount of the “loss” to the Iowa bank that extended a revolving line of credit to his meatpacking business.  The alleged loss was dramatically increased because the federal government itself prevented the company from being sold to buyers in a bankruptcy proceeding who were ready to pay far more for the company than the government eventually approved.  In other words, the government can manipulate or control the amount of a victim’s “loss” so as to permit a judge to then increase a defendant’s sentence.

Darn, that Bob Barr gets it.  If only he was similarly brilliant while he sat in the House of Representatives, when he could have actually done something about it.  Or when he was United States Attorney for the Northern District of Georgia.  It’s great that Barr now comprehends the issues that criminal defense lawyers have been raising, arguing, challenging for decades.  It’s just a shame that he didn’t get it when he could have done something about it.

Bob Barr is very smart.  It’s too bad that he wasn’t so smart before.

A curious solicitation arrived that piqued my interest.  Would I be interested in doing a Webinar once a month?  Intriguing, as vanity rises in the back of my mind in that somebody thinks that what I have to say is important enough that other people would be interested in watching and hearing me.  When it comes to lawyers, vanity is always a great hook.

The deal was one hour of preparation of a powerpoint presentation.  One hour of live webinar on the subject of my choice.  A total of two hours a month.  No big deal, right?

The cost to participate in my webinar would be $250.  The cost to watch it later would be $250 as well.  I would receive a 50% royalty for this.  That’s a whole lot more than book publishers offer, which ranges from 10 to 15% of sales, which doesn’t even come close to compensating for the time it takes to write and update a book.

But the Webinar wasn’t for CLE credit, like the Lawline offering which is similarly expensive but pays the presenters zip.  They are compensated with the glory of being a presenter and the comfort of knowing that they helped Lawline make money.

And so I inquired further.  How many people would pay for the privilege?  The answers were vague.  Why no CLE credit?  Viewers could apply for it on their own.  A strange odor emanated from my telephone.

I called someone who, according to the website, had taken the deal that was being offered to me.  He was a great guy and very forthcoming.  He opened by telling me that he was flattered by the request, being somewhat less than a household name in the world of law.  “Me too,” I said.  We laughed.  How much money did you make?  Nothing.  They say they pay once a year, within 45 days of January 1st (huh?), but they wouldn’t tell him how many people watched his webinar or whether there was a dime coming.

Then he started getting emails offering to allow him to put the webinar on his website.  For a fee.  Or an iPhone app, for a huge fee.  We laughed again.  It was like Superlawyers, or Super-De-Duper Lawyers, or whatever is created to appeal to our egos and marketing budget. 

I responded to the offer with a list of my requirements: