A number of emails arrived yesterday asking what I thought the McDonald decision meant for New York City.  Let’s get one thing straight, at the pace in which the Supreme Court is deciding the many aspects of Second Amendment jurisprudence, first Heller, creating an individual federal right that may or may not be fundamental and may, notwithstanding, be saddled with a bunch of incongruous an inexplicably permissible conditions, and now McDonald, the likelihood of anything coming of it in my lifetime is slim.

McDonald did one thing only, holding that the right enunciated in Heller applies to the states.  As with the mystery paragraph of Heller, the Court reiterated that the decision doesn’t preclude regulation and limitation.  This leaves open the next hundred years of piecemeal litigation over each and every inch of imaginative legislation to see where the line is drawn.  We’re so far away right now that we can’t even see the line, no less know what the line precludes.

Heck, as Eugene Volokh points out, the Court hasn’t even cleared up whether the right is truly fundamental, and whether limitations are subject to strict or intermediate scrutiny.  While these legal issues aren’t particularly interesting to non-lawyers, they play a huge role in framing laws to restrict the applicability of Heller and its progeny.  More decisions needed to flesh out the right mean more years before anybody really understands what can and can’t be done.

If the City and State of New York were miraculously inclined to embrace the concept, however, the best one could hope for, given what the Supremes have offered up to now, is an onerous application/registration process for ownership of a non-automatic handgun or rifle within the home (only) for the purpose of self-defense by sane, competent and trained people over the age of 21, without any prior felony, and possibly serious misdemeanor, conviction, restraining order, and maybe open investigation. 

The process would be prolonged and expensive, and would require proof of insurance for the weapon, which would again be expensive.  While applicants would not be required to show special need to possess a weapon for self -defense, they might be required to provide verifiable proof of everything they’ve ever done in their life from birth to the day of application.  In triplicate.

In other words, don’t expect any rush on guns any time soon.  And that’s assuming the powers to accede to the 2nd amendment.  They won’t.  They will fight it every inch of the way.  Given the Supreme Court’s apparent inclination to parse out the details as if the cost is paid from Scalia’s pocket personally, it could take forever before all the questions are answered.

In the meantime, the New York Times editorial du jour argues that the Supreme Court doesn’t get it.  Guns kill.

About 10,000 Americans died by handgun violence, according to federal statistics, in the four months that the Supreme Court debated which clause of the Constitution it would use to subvert Chicago’s entirely sensible ban on handgun ownership. The arguments that led to Monday’s decision undermining Chicago’s law were infuriatingly abstract, but the results will be all too real and bloody.

The Court gets it.  We all get it.  People are being gunned down in Chicago as I type, which not only proves that guns kill, but that laws the all but prohibit the possession of guns by law-abiding citizens don’t stop guns from killing.  This doesn’t mean that we’ll be any better off with guns in the hands of law-abiding citizens, as RKBA advocates argue, but the Times doesn’t get that the argument is no longer relevant. 

Arguing that the Heller decision fails to acknowledge the cost of the 2nd Amendment is like arguing that the creation of the exclusionary rule ignores that some criminals will get away with crimes.  Conferring rights has consequences, but where the Constitution provides for a right, despite the different readings that are fair argument, it reflects a choice between the effect of denial of the right and the effect of the right itself.  Every choice has consequences, and these are the consequences we suffer to enjoy the rights conferred.  That’s the nature of rights.  Somebody enjoys while somebody suffers.

And if anybody doubts that McDonald is merely another baby step in a very, very long journey, consider that it took 214 pages to conclude that the right is incorporated.  Just wait until the Supremes have to struggle with some of the tougher questions, like whether children under the age of 6 months living in a home for which an application to possess a firearm has been made will have to pass a physical examination to demonstrate competency in firearms handling.  Yes, the possibilities are endless.

Whether it’s described as Kabuki Theater, a speechifying opportunity for senators or the most words murdered to say nothing, hearings will open on the nomination of Elena Kagan to the Supreme Court of the United States.  Whether she’s your dream date or not, there is no serious challenge to her qualifications for the seat, to become one of the Nine who control a co-equal branch of government.  The Senate need not like her, her judicial philosophy or even her answers to their questions. 

The only thing that Elena Kagan needs to do is not blow it.  The only way a nominee can blow it is to let words escape her mouth that either demonstrate an incompetence or bias that outrages people.  Given the thousand ways to answer questions without saying anything, this should present a problem.

Many in the blawgosphere have posed questions that they would like answered. Real answers, not non-denial denials that give the appearance of responding without responding.  Jeff Gamso does a wrap up of the criminal law questions, adding in a few of his own.  

Norm Pattis takes the most interesting approach, using his fictional trench lawyer nominee, Gerry Darrow, to juxtapose what could have been with what is.  His flight of fantasy may be wistful, but it serves to remind us that there are other flavors besides plain vanilla.  Gerry Darrow would answer the Senators questions with candor, because he can’t fathom a reason not to.  

Darrow’s free-wheeling style and easy-going demeanor are expected to mark a contrast to Kagan’s reserve and polish.

Of course, such an approach would be intolerable.  If it can’t be tolerated in the blawgosphere, how can it be tolerated in a Senate hearing room?  A Darrow nomination hearing would prove us all hypocrites.  No candidate for the Supreme Court will meet our ideal. 

No one is throwing any “I  ♥ Elena” parties.  Too liberal for conservatives.  Too conservative for liberals.  Too inexperienced, too inside, too Harvard.  She sounds like the personification of a good settlement.  Nobody is happy.  But before she’s handed the waiting robe, she must go through hearings.

More than most, Elena Kagan is a scholar of nomination hearings.  Via Liptak at the New York Times :

Ms. Kagan is likely to get questions about her article in The University of Chicago Law Review, in which she celebrated the 1987 confirmation hearings of Robert H. Bork for their extensive exploration of his understanding of the Constitution.

“The ratio of posturing and hyperbole to substantive discussion was much lower than that to which the American citizenry has become accustomed,” Ms. Kagan wrote. But Judge Bork’s candor hurt him, and the Senate rejected his nomination.

From the perspective of the nominee, the point of the hearings are to make it through unscathed and ultimately be approved.  While the hearings could be used as a soapbox to expound upon what’s right and wrong with the law, the soapbox is minuscule compared with the one one a Supreme Court justice stands on.  The public wants candor from the nominee like the public wants a confession from an accused murderer.  It’s in neither one’s best interest to satisfy the public’s wants.  Nothing good (for them) can come of it.

It’s hard, no impossible, for me to get overly worked up over these hearings.  My quest for a seat on the big bench was doomed, as one would expect if not desire.  But had it been real, and had a president called me up and asked whether I was interested in the gig, I would have prepared for Senate confirmation hearings the way Elena Kagan has.  The way Sonia Sotomayor did.  What purpose would there be in talking smack to the Senate, in front of the TV cameras?  It’s an invitation to get Borked.

Though I’m no academic, and lack the requisite Ivy law school degree, government service, powerful friends, the stuff I’ve written here provides a pretty good idea of my positions, my intellectual prowess (or lack thereof), and philosophy.  One might think that my views would be embraced by other criminal defense lawyers and others who value freedom and civil rights over order and safety.  Yet they don’t. 

The president’s nominee is Elena Kagan.  She will be confirmed.  Had the nominee been Gerry Darrow, he would not be confirmed.  And criminal defense lawyers would be the first to march on the confirmation hearings carrying torches and pitchforks.  He, in his candor, would never meet their expectations of their ideal.

There’s a tendency to take particular note of the biggest or the worst tragedies happening around us.  They make the news.  They grab our attention.  In the process, we may forget that for every monumental nightmare that comes onto our radar, there may be a hundred, a thousand, smaller, more personal nightmares about which we hear nothing. 

At a blog called The Tales of an Amputee Mommy, Peggy Friedman Chenoworth writes about life as an amputee with a four year old son.  Having a number of friends who are challenged, I’ve come to appreciate that each has its issues that those without the challenge can’t appreciate.  Often, the little things we take for granted become their daily hurdles.  With just the right amount of intransigence, a hurdle becomes a brick wall, or worse yet, a test of humanity. Peggy writes of such an experience at the hand of our government’s blue-shirted protectors against terrorism, the Transportation Safety Administration.

I was nervous maneuvering the airport with Robby in tow. Scott was able to secure a security pass to help me tame Robby when we departed last week. I was thankful for his help because, being an amputee, getting cleared through airport security can be a lengthy process. I have never gone through security with Robby by myself, so I was apprehensive. Little did I know that my fears were founded.

As predicted, and as is typical, I was directed to the Plexiglas waiting area after I triggered the metal detector. Robby proudly walked through the sensors, running into my arms. Apparently that was a mistake, because he was taken back through the sensors again because he had been “compromised” by touching me. He was not pleased.

Who can’t appreciate the threat of the dreaded four year old boy?  But that was merely the beginning of the joy Peggy was about to experience.

When they were done clearing a four year old for explosive materials, they turned their attention to me. I was taken through the normal pat down procedure to which I am accustomed. I was then informed, in a matter of fact tone, that the rules have changed as of today (Friday, May 28, 2010) and that further screening was necessary.

I was instructed to remove my leg. I refused, stating that it was against procedure to insist that I remove my prosthetic. Another man was brought over, who lectured me about the increased security risk and the need to keep screening procedures current. He reiterated that the rules have changed, and that he needed my prosthetic. Looking at my frightened little boy and knowing that we were becoming pressed for time, I begrudgingly removed my leg and handed it to the rude agent.

Rules are rules, when you’re a monkey with a checklist.  But when it’s not a rule, but some nonsense crap that a guy in uniform makes up to justify his off-the-cuff demand, then it’s hardly a rule.  But anybody with some petty power can call it a rule and force the issue.  Wanna bet it wasn’t nearly as easy to get away with telling an amputee to remove her prosthesis when he was dishing out ice cream at Dairy Queen a week before?

“What’s that?” the man asked while pointing to my liner. I explained that it was my prosthetic liner, and that I wore it to keep my prosthetic attached. He insisted that he needed to run my liner through the machine as well.

I don’t think that the general public understands how personal a residual limb is to the amputee. It is on par with one’s genitals. I simply don’t remove my liner in public exposing my limb, and I was humiliated by the request.

Aside from the humiliation of being forced to expose herself in public, there is also the issue of infection caused by removal and exposure to the unsanitary conditions of public bins, where Peggy’s liner was carelessly tossed so it could be x-rayed. 

For all she endures, Peggy remains relatively sanguine about it, acknowledging that it’s possible that a terrorist could hide a weapon in a prosthesis.  They could hide one in a sphincter too, and most of us have one of those.  But there are far fewer amputees, so the burden of humiliating them won’t come back to bite the TSA in the butt nearly as much.  As long as they aren’t humiliating the rest of us in the quest to keep us in a perpetual state of terrorist alarm.

If you care to express yourself about what happened to Peggy, you may want to leave a comment to her post and let her know how your feel about the humiliation she and her son endured.  I bet she would appreciate knowing that someone cares. 

Update:  As word of Peggy’s post spread, no doubt to Balko and subsequently to me, it likewise spread to others as well.  Apparently, this unleashed a barrage of disgraceful and disgusting comments from the wealth of empowered idiots that spend their time on the internet to compensate for their lack of real lives.  They littered Peggy’s post  with the worst garbage the internet has to offer.

I trust no one who followed the link from here would do such a thing.  Sadly, this caused Peggy to take her post down, which is a loss to her and to all of us.  The link in the main post is now dead. It’s a loss for everyone.

H/T Radley Balko

When I wrote the line  in a post that was entirely navel gazing, it never dawned on me that it would touch so sensitive a nerve within the blawgosphere as to launch three posts on other blawgs.  Geez, the inconsequential things that get people hot and bothered.  I wrote that my posts here average about 10 minutes to write. 

First came a post by Bob Ambrogi, to whom my statement “challenged credulity.”  Bob explained by offering a laundry list of what it takes to write a blog post:

Many bloggers will tell you that writing is only the half of it. Equally, if not more, time consuming is finding something to write about. For many who blog, the routine involves some combination of these steps:

• Review your usual news sources, blogs, RSS feeds, court opinions or whatever.
• Read some or all of the items that strike your fancy.
• Choose an item or theme to write about.
• Mentally compose your thoughts.
• Put those thoughts in writing.
• Give it a second read to see if it makes any sense.
• Hit that “publish” button.

That takes time. Blogging is not just writing. It is reading and digesting and selecting and composing and editing. Even a brief post rarely consumes just 10 minutes, factoring in all these elements.

In the comments to Bob’s post, others agreed that blogging is hard work, and that a “good” blog post takes a lot of time and effort.  The tacit implication was that my posts can’t be very good if they don’t take as long to write as theirs.

Bob’s post was followed by a post at Spam Notes by Venkat Balasubramani, calling blogging a “time sink.”  He added some additional bullet points (though he preferred stars to dots) to the list:

* Check PACER to see if there’s been any activity in cases you’ve blogged about. 
* Take a quick look at the pleadings or briefs if you are writing about a case.
* Upload the pleadings or case documents to scribd or a similar service.
* Research/confirm any peripheral legal or factual points that may be relevant to your post.
* Double check grammar/word usage rules to make sure you’re not making an obvious mistake.
(I’m no grammar whiz, so I have to do things like google “timesink” to make sure it’s actually a word.)

Venkat notes that his post took 15 minutes to write.  Bob said his took 45 minutes.  When I pressed Venkat on whether it really took 15 minutes, he conceded that he was “multi-tasking,” which probably ate up 5 of the 15 minutes.  I’m no mathematician, but by my fingers and toes, that leaves ten.

I thought the issue was played out, but then another, a third, post appeared (which came across Kevin O’keefe’s twitter feed) at the Law Librarian Blog. Joe Hodnicki copies over Ambrogi’s list and adds, “If only it took a mere 10 minutes!”  Joe doesn’t say how long it took him to write that post, but I’m praying it took no more than 3 minutes,

What became clear to me in these posts is that many, maybe everyone else for all I know, blawgs differently than I do.  This isnt to say I’m right and they’re not, but we’re different.  I read a bunch of stuff, ranging from news to new decisions to other blogs.  This has nothing to do with my blawging, but rather with my wanting to know what’s going on in the world.  Whatever catches my interest, I read.  I assume that everyone else does the same, no?

When I read something that sparks a thought, whether for, against or otherwise, reminds me of a story, makes me want to say something, I set it aside.  On an average day, I will find that I’ve put about ten things to the side that were sufficiently interesting to me that they made me want to write. 

My approach to blawging is to write because something moves me to write.  My read of Bob’s list is that others want to write, and then go searching for something to write about.  With my approach, I never have to go searching.  To the contrary, I have to decide which posts to write about and which to leave on the table.  Some move me more than others.  Some lose interest upon reflection.  Sometimes, it’s a struggle to decide, as everything on my list makes me want to write.  This happens almost every day.

I’m a true believer in Shakespeare’s theory that I don’t know what I think until I see what I write.  While I begin with some definite ideas, and they usually pan out as the words appear on the screen, sometimes they go awry, even die, right before my eyes.  I’ve left many posts in “draft” mode, sometimes after a paragraph, sometimes after reaching the end, because they didn’t feel right. 

Do others do this as well? I dunno.  They aren’t saying and I’m not asking.  But I suspect that people who decide that “I’m now going to write a blawg post,” then go out searching for something to write about, aren’t inclined to spend their time going down Bob’s list and then not post it.  They did the work of blogging and their product will be posted.

If, however, at the end of a post it seems right, then I publish.  There’s neither composition process nor “second read.”  I hit publish and that’s that.  Of course, I can do that where others can’t because their posts are used as a marketing tool, an extension of their professional online personas.  Mine are just posts.  If the posts sucks, so what?  I won’t lose sleep over it.

If I were to include all the time I spend reading as part of the time that goes into a blawg post, then the time it would take me to post would be far longer.  I read probably ten posts/articles/decisions for every post I write.  But I don’t consider that a part of the time spent posting, as I would read these regardless, and they are the impetus for my posts rather than the other way around. 

Since my typing is pretty darned fast, and I compose on the fly, and I have no need to go searching for a topic to write about, I’ve shortcut a number of the factors that seem to bedevil others.  I’m not suggesting that others should do it my way, or that my way is better.  Everybody should do whatever they feel comfortable doing. 

On the other hand, others aren’t terribly reluctant to suggest that there’s something unseemly, undignified or downright crappy with my way.  Even my old buddy Norm took a backhanded shot :

Scott Greenfield over at Simple Justice has developed a following with a simple formula: three opinions a day, day in day out, and a web of friends and contacts stretching coast to coast.

My “following” is due to my formulaic approach to blogging?  Aside from Norm getting the “formula” wrong, it’s a great way to rationalize.  Norm follows up in another post with:

Imagine covering the legal world in 10 minutes a post times three posts each day. He gets more done in half an hour than I do most days. (He contends his blog is but a moment’s inspiration, something done with the morning’s coffee and before the workaday tasks of lawyering begin.)

But I suffer no hurt feelings by the doubters or those who feel compelled to offer me snark to make themselves feel more adequate.  I like and admire Norm, and I’m happy to serve as his counterpoint if it soothes his tortured soul.  That’s what friends do for each other.  As for Joe Hodnicki, however, if he couldn’t produce that post in less than ten minutes, he needs to find a better use of his time. 

Blawging isn’t for everyone.  When it feels like work, it may not be for you.

Lawyers fight tooth and nail over the admissibility of evidence in a typical case.  The reason they fight is simple: There’s evidence to be had and rules to apply in determining its admission.  Thanks to Mr. Richardson, we can argue the nuanced points all day long. 

Some cases, however, have no competent evidence. Drew Peterson’s is one.  As it’s about to go to trial, what’s going before the jury?  The answer is another in that long line of dirty secrets of the system.  Peterson, by some accounts, a 29 year veteran cop (what courts like to call “seasoned” when blindly adopting their testimony as beyond impeachability) and frequent loser at love, is suspected of murdering his third and fourth wives.  The trial is over the third, Kathleen Savio.  She’s no longer available to testify.  Neither is Stacy Peterson, his fourth wife.  One dead wife too many.

What happens between man and wife is often behind closed doors.  Outside knowledge of it comes by stories told.  Many people tell some stories about our private lives to friends, religious advisors, psychiatrists, but they’re the stories we want them to know, told the way we want to tell them. 

At best, they are told through one person’s eyes.  At worst, they are told to give the impression the story teller wants to give.  If one wants sympathy, one tells sympathetic stories.  If one wants to be admired, one tells stories that make them look good.  Sometimes there are germs of truth.  Other times, they are wholesale fabrications.  The recipient of the story may believe or have doubts as to the accuracy of the story.  No matter, they can’t prove it, one way or the other.

From the Chicago Tribune, the case against Drew Peterson is revealed.

Without physical evidence or a confession, prosecutors have largely built their case around pathologist findings and 13 hearsay statements that they say will allow the women to speak from the grave. Sources told the Tribune that statements from several of the women’s friends have been barred, including some testimony about the July 2002 incident in which Peterson is accused of breaking into Savio’s house and holding a knife to her throat.

The alleged home invasion was a major focus of the hearsay hearing held earlier this year, with at least seven witnesses testifying about it. One of Savio’s former co-workers told the judge that Savio said Peterson, clad in all black and carrying a knife, snuck into her home, pinned her on the stairs and then balked at killing her because it would be “too bloody.”

Though the co-worker’s account and some statements related to the incident have been barred, Brodsky suggested in court that the incident may be mentioned in other testimony. If the allegations are brought up, Brodsky told reporters, he would like jurors to hear recordings of statements Savio made about the incident — in which she does not mention a knife — to an insurance company investigating her claim that jewelry had been stolen from the house.

Prosecutors make an impassioned plea for Kathleen Savio to speak from the grave.  This happens through the stories she told others.  The argument carries a great deal of emotional appeal, particularly when coupled with the “he can’t get away with this” argument, guilt presumptively established.

Stories can’t be cross-examined, challenged, questioned, when the witness is merely repeating what someone else told them.  The only question is whether the story was in fact told, as they have no actual knowledge of anything else.  It’s a difficult cross, since they need only insist that they remember the story like it was yesterday, no matter how embedded in the myth of memory.  By the time they take the stand, the story is embedded in concrete, as absolute and certain as the earth is round, no matter it has more to do with remembering it over and over for the media and the prosecutors rather than because it actually happened.  They don’t tend to break on the stand.

If there was any hard evidence, this flagrant hearsay would be tossed out, rejected.  No judge is unaware of the poverty of this evidence, the inability to test the veracity of a second- or third-hand story.  Have they ever heard of Crawford in in Chicago?  Apparently, the caselaw from Washington is less of a concern than the caselaw from Illinois.

The judge’s ruling on important witnesses for the state follows a landmark hearing under a new Illinois statute — dubbed Drew’s Law — that allows certain types of hearsay at trial. The full decision is being kept under seal until after the trial, which is expected to begin next month.

All those rules that Mr. Richardson struggled to put on paper go out the window when you have a defendant who everyone has decided is really bad, but evidence that’s even worse.   Rules may be rules, but when they stand in the way of getting the guy who needs to be gotten, it’s time to make new rules. 

One of the most damning pieces of evidence is a confession to Savio’s murder that Peterson allegedly made to his fourth wife, Stacy.  According to Stacy’s pastor, she spilled the story to him.  The judge’s ruling as to admissibility, given that Stacy, like Savio, it dead, might draw the concern of lawyers with virtual practices:

He also banned statements made during marriage counseling sessions at the Petersons’ home and in Peterson’s squad car. In both locations, White said, there was an expectation of privacy.

White ruled that the jury could hear about the false alibi discussion, in part because it took place at a Starbucks where anyone could have overheard the conversation. By sharing her deepest secret there, Stacy Peterson essentially waived her right to keep conversations with her religious adviser private, the judge said.

This Starbucks Rule, that conversations over a vente cappuccino are not, by dint of location, privileged, shouldn’t be ignored.  Attorney/client privilege, like priest/penitent, is waived along with the non-dairy whipped topping, a consideration that even an iPad can’t overcome.

Prosecutions alleging domestic violence are fraught with arguments, and decisions, that wreak havoc with the rules of evidence.  Proponents argue that the nature of the relationship, private and personal, precludes the availability of reliable evidence, and thus gives rise to a different set of rules that should permit evidence that would otherwise be laughed out of court.  The use of rampant hearsay evidence is indefensible, but proponents contend that a murderer shouldn’t get away with it just because they’ve killed the only competent witness. 

The only thing truly required to feel comfortable with the concept of convicting in the absence of good evidence is the certainty of the defendant’s guilt, thereby justifying anything needed to obtain the verdict to validate that belief.  When the defendant’s guilt is prejudged, the absence of good evidence gives way to the admission of bad.  After all, we can’t let a man like Drew Peterson get away with it.

You gotta give those Queens prosecutors credit.  They didn’t like the sentences offered by the Legislature, so they decided to up the ante with some imaginative application of law.  All it takes is to call any crime a “hate crime” and, bingo, prison awaits.  From the New York Times :

This approach, which is being closely watched by prosecutors across New York State, has won Queens prosecutors stiffer sentences, including prison for criminals who could otherwise go free, even after draining an elderly person’s savings. Without a hate crime, theft of less than $1 million carries no mandatory prison time; with it, the thief must serve for a year and may face 25.

The legal thinking behind the novel method is that New York’s hate crimes statute does not require prosecutors to prove defendants “hate” the group the victim belongs to, merely that they commit the crime because of some belief, correct or not, they hold about the group.

Some belief they hold about the groups is, well, kinda vague.  No, actually utterly meaningless.  It’s the sort of definition one gets when a group of people all agree that they want to criminalize something, but can’t even begin to put into words what it is.  So they find language that doesn’t appear to offend anyone, without questioning whether the language actually says anything.  Kinda like marketers. 

This approach, which has yet to be addressed by any appellate court, is just plain nuts.  First, there’s the basic fear that hate crime laws criminalize thought, which its proponents argue isn’t the case.  Well, it sure is here, where it flagrantly does so, enhancing a crime based on a “belief”.  I’ve got a ton of beliefs.  I’m dead under this law.

Next, there’s the concern that a bit of imaginative prosecuting converts a garden variety fraud into a hate crime by happily ignoring the laws purpose and playing games with its language.  I see you prosecutors smirking, knowing you got another one past the legislature.  No plea extortion opportunity here, right?

But then, there’s the unintended consequences problem.  What, you ask?  Certainly no fine law and order aficionado will get too bent out of shape at the thought of a defendant facing probation getting 25 years.  Well, the proponents of hate crime laws, those who believed that the crime of murder wasn’t enough to punish a flaming bigot who kills, but demand life plus cancer, will recognize that their efforts have been usurped by the unscrupulous and their goals of ending hatred and bigotry hijacked for less savory purposes. 

The abuse of laws for purposes far afield from that intended, as is the case here where prosecutors are laughing all the way down Queens Boulevard, may fundamentally undermine the viability of hate laws for their intended purpose.  In other words, they may have outsmarted themsevles, and proven better than any defense lawyer’s theoretical argument, that the law is too vague to withstand scrutiny (unless SCOTUS gets its hands on it).  The upshot may be a holding that the law is unconstitutional, which it is for this reason as well as others, and that it’s back to the Legislature to craft some language that actually says what it means.

The New York Legislature?  Yeah, the New York Legislature.  I have a belief about that too, but I fear saying it might subject me to prosecution.

At the Jury Room, Douglas Keene offers some advice on how not to win a case.

Researchers tell us witnesses who had been taught about how cross-examination would proceed performed much better on the stand than did witnesses left to manage without instruction. Well, yeah. That makes sense. But here’s where it gets interesting. The issue was not in the process (as in anxiety over performing) but in the language of cross-examination.

‘Lawyerese’ which the authors define as “complex questions, containing multiple parts, double-negatives and advanced vocabulary” throws off the brain’s ability to process information correctly. So, witnesses who had been trained in ‘lawyerese’ were more likely to respond appropriately and less likely to make errors in testimony.

What bothers me about this isn’t the advice, but that the researchers call the inability to ask a proper question “lawyerese”.   There is absolutely nothing lawyerly about asking “complex questions, containing multiple parts and double-negatives.”  Didn’t the researchers speak to a competent lawyer before engaging in this study, so that they might have the slightest clue how a lawyer asks a proper question?

About the only part of the Lawyerese definition that raises the slightest concern is the “advanced vocabulary” aspect.  The use of lawyer words, unfamiliar to people who are successful at meeting the opposite sex at parties, is a major mistake, but one often committed by newer lawyers and lawyers who don’t have much experience in examining witnesses.

Whether because they think fancy words make them appear smarter, are more precise, or have become ingrained in their speech after three years of being told by lawprofs that lawyer words are incredibly cool, some lawyers will use jargon to question a witness.  This isn’t lawyerese.  This is bad questioning.  Bad, bad, bad. 

As for a lawyer who puts someone on the stand for direct examination without having fully prepared them, that’s just bad lawyering as well.  No competent lawyer puts a witness on the stand without preparation.  Never.

Keene goes on:

It doesn’t take advanced education to think about which witness would seem more credible to a jury. It’s all part of a witness preparation strategy. You want your witnesses to be prepared for their testimony and that means more than simply running through your plans for direct examination with them. Preparing witnesses should not be an afterthought.

Obviously, this is good advice.  Equally obviously, this is so basic that if it needs to be said, then the lawyer really isn’t ready to try a case.  If you found this advice helpful, chances are exceptionally good that you should avail yourself of a mentor, a second chair opportunity, a few good quality CLEs, a stint at the National Criminal Defense College or a different job.  What you should not be doing is trying a case that involves some poor schnook’s life.

The conflation of bad lawyering with the mistaken understanding that the inability to ask a competent question falls under the heading of “Lawyerese”, however, contributes to the public’s lack of understanding of what lawyers do, or should do.  It’s bad enough that some Liverpudlian shrink, Jacqueline Wheatcroft, is so clueless about lawyering that she would confuse really bad questioning with lawyerism, further advancing the notion that lawyers are inherently blithering idiots. 

Lawyers are guilty of many things that society tends to frown upon.  We’ve got enough going against us to make it incredibly difficult to procreate and maintain the species.  Let’s not exacerbate the problem with psychologists attributing incompetent preparation and questioning as a lawyerly trait.  And let’s not perpetuate it by approving the use of a word like “lawyerese” when the real problem is basic incompetence.

The law prohibited a scheme to deprive another of the “intangible right of honest services,” and it was an ugly law.  Pretty laws had specific elements with defined parameters.  That way, citizens could know what was illegal to do, and judges could know what constituted a crime.  Honest services fraud was the Bruno Magli loafer of laws.

The Supreme Court decided to give it a makeover.  As Tony Mauro succinctly sums up hundreds of pages of opinions, nail buffing, hair tinting, tooth straightening, new clothing and a full body massage:

In the post-Enron case of Skilling v. U.S. and the related cases of media mogul Conrad Black and Alaska legislator Bruce Weyhrauch, the high court re-defined the “honest services” criminal fraud statute to cover only bribes and kickbacks, instead of the range of illicit activities prosecutors have used the law to punish.

Nowhere in the statute is “honest services” defined to be bribes and kickbacks, and indeed, no prosecutor ever said so.  Sure, they were included within the confines, but it covered so much more.  Anything that, in the eyes of a prosecutor, could be rhetorically argued to meet a jury’s approval as the way a corporate executive or officer should act or decide would fit the bill.  It could convert the executive suite to a convent, where its inhabitants were expected to take oaths of poverty, chastity and obedience.  Their lives would be dedicated to their corporate god, and they would have to satisfy the dogma of their prosecutor priests.

The Supremes fixed that.  They gussied up the law by limiting it to two things, bribes and kickbacks.

The reviews were mixed.  Some argued that the new law, the one written by the Supremes, was still butt-ugly because it favored corporate executives by denying prosecutors the ability to go after executives who played corporate duties for their own benefit.  Others argued that the new look put the brakes on the runaway federal train of “white collar” crime.  Still others argued that the court merely reformed an overbroad vagary to meet the normal vision of loveliness, preserving its core appearance while getting its frizzies under control.

Defining words is part of the Supreme Court’s job.  But it usually involves only trimming the edges, not a full color and mullet cut.  Had Congress meant honest services to mean only bribes and kickbacks, it would have said so.  These are not unfamiliar words to Congress, a number of whose members have some intimate familiarity with them.  No one really suspects that Congress intended the law to be limited to those two instances; Congress criminalized an idea rather than any specific acts.  That was its purpose.

What made the majority on this issue in Skilling decide to try their hand at fashioning a pretty law from an ugly one is unclear.  Perhaps they feared that Congress, upon learning that its law was held unconstitutionally vague, would just pass another one, only slightly less ugly, which would capture a bunch of corporate titans and deny them a spa treatment until the cases came before the Supremes years in the future?  To avoid that likelihood, did they decide to refine the existing law rather than give Congress another try at writing a law that would encompass anything that would appease the public’s lust for corporate blood?

It’s certainly better that they limited “honest services” to two basic, recognized, long-standing evils.  Certainly everyone knows what bribery and kickbacks are, though everyone was similarly clear before the enactment of 18 U.S.C. §1346 that they were going to get into some trouble if they went around bribing folks.  Now, it’s a law that nobody needs.

Yet, what of the rule of construction that the statutory language of a crime must provide the specific parameters of the conduct constituting the crime.  The Supremes, in the process of creating a constitutional statute out of a mutt, were constrained to blur this line.  From Tim Lynch at Cato :

The other six justices bent over backwards to “save” the law from invalidation–they ruled that the law should be narrowly interpreted.  Here is, I think, the most telling passage from the majority’s ruling:

“As to arbitrary prosecutions, we perceive no significant risk that the honest services statute, as we interpret it today, will be stretched out of shape.”

Instead of strict rules and limits on government power, the Court is content to offer leeway to the prosecutors–some risk of arbitrary prosecutions is acceptable you see. 

For many, words like “no significant risk” are sufficient to calm their fears.  Yet this new standard of unconstitutionality for vagueness suggests that as soon as the hair grows out, the make-up wears off and the law goes back to binge-eating, the pretty law in Skilling will be back to testing the limits of ugliness again.  Just as important if not more so, other ugly laws will be scrutinized under this “no significant risk” test.  Prosecutors will offer their assurances that they would never stretch a vague statute “out of shape,” and will carefully frame their square indictments and arguments going forward to fit within the round hole of the Supreme Court’s definition.

A properly drafted criminal law should provide no risk that it be stretched out of shape.  The citizenry deserve laws that have fully defined parameters, where they can tell if they’ve committed a crime rather than find out afterwards that conduct that appeared to be lawful can be twisted to fit. 

I hesitate to suggest what hairstyle will be favored by the Department of Justice in the future.  My mind’s not that agile.  But those fellows can do some gymnastics that will blow you away, and I’ve no doubt that they will come up with some ideas that nobody outside the office would suspect today.  Maybe the risk that the law will be stretched out of shape has been reduced to twenty percent.  Even ten.  Not “significant” perhaps, but hardly insignificant either.  It’s still not enough to satisfy the rigor of specifity for a constitutional criminal law.  It still gives the prosecution too much latitude to manufacture crimes as needed or wanted.

So honest services fraud is looking pretty hot right now, strutting its stuff with its new hairdo and liposuctioned belly.  How long before the hair grows out and the pot returns is hard to say, though it’s my bet that we will be seeing some curious corporate crime makeovers soon enough. 

And please note that I never resorted to lipstick on a pig in this post, despite an almost overwhelming desire to do so.

They are trained.  They are given a shield.  They get a uniform, belt, flashlight, handcuffs, shoes. Sometimes, they are allowed to use a car with special lights, siren and markings for a governmental entity.  All of this is paid for by the taxpayers of the jurisdiction in order to enjoy their service and protection.  In their off-duty hours, however, they are allowed to offer it to anyone willing to pay.

British Petroleum is an entity willing to pay an off-duty police officer for their services.  From MoJo, via Turley, they hired a sheriff’s deputy from Terrebonne Parish, Lousiana to make it difficult to capture images of things that BP would prefer not be seen.

Drew Wheelan was was filming across the street from the BP building/Deepwater Horizon response command in Houma, Louisiana, when the off-duty sheriff’s deputy came by.

Wheelan is a very calm and compliant fellow.  He answered a lot of questions that the off-duty deputy had no right to ask.  Though he may well be entitled to moonlight for BP, or any other entity that’s willing to pay for his shield, his authority does not travel with him to the new job.  No longer is he acting on behalf of the government, but a private enterprise.

Contrary to popular belief, corporations are not governments.  They do not have the power to dictate to citizens.  They do not, with certain exceptions, have police powers, even though they have the wherewithal to buy them as needed.  Wheelan had no obligation to speak with the deputy, no less answer his questions.  One can only wonder what the deputy would have done if Wheelan told him to go jump in the lake gulf.

But one need not wonder what the deputy’s superiors think about his being a shield for hire.

Shortly thereafter, Wheelan got in his car and drove away but was soon pulled over.

It was the same cop, but this time he had company: Kenneth Thomas, whose badge, Wheelan told me, read “Chief BP Security.” The cop stood by as Thomas interrogated Wheelan for 20 minutes, asking him who he worked with, who he answered to, what he was doing, why he was down here in Louisiana. He phoned Wheelan’s information in to someone. Wheelan says Thomas confiscated his Audubon volunteer badge (he’d recently attended an official Audubon/BP bird-helper volunteer training) and then wouldn’t give it back, which sounds like something only a bully in a bad movie would do. Eventually, Thomas let Wheelan go.

And what did the Sheriff’s office think about this?

The deputy was off official duty at the time, and working in the private employ of BP. Though the deputy failed to include the traffic stop in his incident report, Major Malcolm Wolfe of the sheriff’s office says the deputy’s pulling someone over in his official vehicle while working for a private company is standard and acceptable practice, because Wheelan was acting suspicious and could have been a terrorist.

How long will it be until Ducks Unlimited is added to the terrorist watch list?  In fairness, Wheelan was definitely acting suspicious to anyone on the payroll of BP wearing the shield bought for him by the taxpayers.  Aren’t they fortunate in Terrebonne Parish that the interests of BP and the citizens are exactly the same?

Happysphere Alert: Do not read this post if you only want to read happy things.  It will cause your eyes to burst into flames.  You too, Norm.

A while back, Mirriam Seddiq wondered what happened to all the mentors.  Mirriam had a mentor named Terry Kindlon, a hard-nosed, old school lawyer who told it like it is.  No sugar coating.  No hand-holding.  Hard work. Do the right thing. No whining.

Not everyone will have a Terry Kindlon.   But everyone should.  Young lawyers should not be expected to get out of bed and try a killer case with no idea of the tools they have at their disposal.  I get that.  But most young lawyers have friends.  Maybe even older lawyer friends.  Could not a younger lawyer ask questions of other lawyers? What about a trial advocacy class? What about just using the internet to figure out how to prep a case for trial? 

Times have changed.  Mentors have changed.  So have mentees. 

First, the bad news.  Not every lawyer with some age will necessary make a good mentor.  There’s something that happens to some lawyers between their fifth and tenth year of practice.  The idealistic zeal and certainty of youth begins to fade as they endure the harsh reality that life isn’t fair, bad things happen to good people and there is no such thing as justice.  At the same time, a new phenomenon occurs.  The bills come due for braces, the mortgage, school and the car is on its last legs.  Focus shifts off the things one can’t fix onto the things one must fix.  No longer is their time better spent reading the latest Supreme Court opinion then getting a new paying client to avoid the credit card late fee.

Life changes when you’re no longer on someone else’s payroll and your ability to feed the family depends on the next telephone call being a new (paying) client rather than a pitch to donate to the State Trooper’s Orphan and Weapons Fund.  I don’t blame any lawyer for following this path.  Feeding their family is a primary obligation.  But when their primary focus is on scoring the next client, they are unlikely to serve as the best mentors.

Mentees, however, are not what they used to be either.  I’ve mentored a number of law students and new criminal defense lawyers over the years.  I’ve seen the attitudes and expectations change.  While this is merely my anecdotal experience, it’s all I’ve got to work with, but it comports with what I’ve heard from other lawyers I respect.  Take that for what it’s worth.

My mentees used to be sponge-like; more inclined to listen, keep their eyes peeled, soak up everything that happened, whether in the office or in court.  Questions would be asked, but sparingly.  Never would they interrupt me while I was before a judge, speaking to a prosecutor or with a client.  Afterward, I would ask them what they thought, in a Socratic Method sort of way, so see what they took from the experience.  Then I would tell them my take, and we would talk about where and why we differed.  I never asked a mentee to carry my bag, but they would always grab it from my hand and carry it for me anyway.

Over time, things changed.  Mentees began asking more questions, often questions that would be answered if they simply paid closer attention.  They asked questions at inappropriate times, in front of clients and prosecutors, when I was before the judge in the well.  When told that they would have to wait until a more opportune time to discuss things, they would either persist or sulk.  No one had ever told them that they couldn’t have what they wanted on demand before.

The nature of the questions changed as well.  Rather than asking why I did what I did, they wanted to know if there was an easier way to do it.  Faster, simpler, less effort.  I would explain that there was no shortcut.  At first, they would respond with, “Just asking.”  Later, an argument would ensue.  My mentee would “explain” to me why they thought they had a better idea. Finally, it reached the point where my mentee would inform me that their opinion was at least as meritorious, if not more so, than mine.

When the mentee knows more than the mentor, there’s little point to the relationship.  After a few of these experiences, I demurred.  There was no sound reason to spend my time “mentoring” someone when the upshot was my being informed by my mentee that they knew better than me.  And make no mistake about it, it was a time suck.  Often a huge time suck, as their demands of me increased.  And I carried my own bag.

Jeff Gamso posts about a class action brought by a Toronto lawyer against Lexis/Nexis for taking briefs and motions filed in court and selling them to other lawyers online.  This post initially brought me back to the early days of the criminal defense listserv, where a common request was for a motion on “x”.  “I’ve never done a wiretap case before. Can anyone give me a wiretap motion?”

My initial reaction was that if the poster had never done a wiretap case before and felt less than competent to proceed on his own, then he had no business taking a fee from a client to do it.  My second reaction was that motions are workproduct, the physical product of what a client paid to have a lawyer create.  If the request was for the purpose of seeing the format, getting a leg up on how to approach the papers, I had no problem with it.  The poster obviously had no mentor to ask, so he put it out there for anyone, without particular regard to competency.

But my fear, and belief, was that the real intent of the request was for papers to copy, whether in whole or part, changing the name of the defendant and attorney.  Putting his name on another person’s work.

Give a person a fish and he eats for a day.  Teach a person to fish and he eats for a lifetime.

I was always happy to help another lawyer learn what I knew.  I was not happy to enable a lawyer to freeride.  The lawyer gained a fee off the work of another, while learning nothing in the process.

There are two schools of thought about sharing papers.  One is that it’s better to give the lawyer who lacks the ability to do his own work your papers than have him screw up the case and harm a defendant.  The other is that doing so is enabling bad lawyering.  I subscribe to the latter.  Your mileage may differ.

What Gamso writes about raised this problem to a new level.  Not only does Lexis/Nexis take the work of others, without their knowledge or approval, and make it available to others, thus making the author unwitting enablers should they subscribe to the same school of thought as me.  Lexis/Nexis takes publicly available papers and sells them.  They profit off of other people’s labor and effort.  It’s outrageous.

Whether this constitutes copyright infringement, and whether this is ripe for a class action, I don’t know.  These aren’t my areas of expertise, and I defer to those more knowledgeable about such matters.  But it is nonetheless wrong.

When Mirriam queried whether the internet would be the substitute for mentors going forward, I wondered whether the internet had the capacity to do what mentors do, to challenge and grow inexperienced minds.  Or would it be a place for mentees to shout to the world that they already know it all and have nothing to learn?  Or would it be a place they could just buy their “mentors” papers and never actually learn much of anything? 

From what I see in the blawgosphere, the answer is murky.  There are clearly some who want to learn, but there are also quite a few, ranging from first year law students to lawyers in practice for a few years, who not only know everything there is to know, but feel entitled to tell those of us who used to mentor people like them that we are clueless idiots.  For the sake of criminal defendants, I hope they are right, because the future is in their hands.

But I fear they are wrong.