George Washington Lawprof Jonathon Turley, well-known for his brief posts on legal oddities and ironies, provides a longer, more substantive offering in this USA Today op-ed, which questions whether laws matter.  Given that we have so many, and spend so much time discussing them, it seems an awfully good question.

After running through a series of diverse and facially disconnected legal issues that are or have recently been on the front burner, Turley writes:

An arbitrary system

The message across these areas is troubling. To paraphrase Animal Farm, all people are equal, but some people are more equal than others.

A legal system cannot demand the faith and fealty of the governed when rules are seen as arbitrary and deceptive. Our leaders have led us not to an economic crisis or an immigration crisis or an environmental crisis or a civil liberties crisis. They have led us to a crisis of faith where citizens no longer believe that laws have any determinant meaning. It is politics, not the law, that appears to drive outcomes — a self-destructive trend for a nation supposedly defined by the rule of law.

The manner in which Turley has framed his conclusion makes it adoptable by anyone and everyone, as becomes clear in the comments to his post.  It feeds the mass paranoia, whether liberal or conservative, Democrat or Republican.  Everyone with a position believes that they are getting screwed and the other guy is getting a free ride.  The mixed chorus is singing hosanna, though the altos are blaming the baritones who are blaming the sopranos.

The reason Turley’s assertion is universally embraced is that we have lost faith in the integrity of the law, and the legal system.  John Adams wrote that we are “a nation of laws, not men.”  It’s a fine platitude, repeated mostly by elementary school students and Supreme Court justices.  But as long as people administer the law, it’s subject to human foibles.

It’s not all that hard to tap into frustration.  Most of us are angry about those who manage to wield petty power in a way that we feel is wrong or dishonorable.  Each of us, provided we are reasonably normal, believes that we are reasonable, honest and appropriate in our view of life.  We see right and wrong, and when things happen that don’t comport with our vision, and happen again and again, we lose faith.  Those of us outside government see it as a monolith, a sort of insider conspiracy bent on subjugation of the good people (that would be us).  Even people within government see other branches, divisions, this way, while knowing that they are hampered by well-intended rules gone astray.

Society is in a current state where the passage of laws, those named after dead children being a good example, are used for  political  exploitation, which is odd in that we blame bad laws for so many of our problems, yet embrace new laws as if they will magically cure all the bad ones that came before it.

What makes Turley’s conclusion so universally acceptable is that nothing seems to work right anymore, and yet the talking political heads continue to spew as if doing more of the same will produce a different, better, result.  We’ve heard that song too many times.  We’ve suffered the outcomes failing to meet the promise.  We then hear the excuses and rationalizations that, we mumble to ourselves, ring hollow or foolish.  We won’t be fooled again.

The expectation that government will fix things for us is at the heart of our loss of faith.  Sure, government tells us it can and will, but it can’t and won’t.  Don’t argue that this is a liberal concept, as conservatives are merely “differently liberal” when it comes to the passage of laws that are supposed to make things better.  Governments make laws.  It’s what it does.  Like the proverbial nail to the guy with a hammer, laws are the only answer that government has to offer.  And so they pass them, and pass them again, and watch as they fail to improve our condition.

What we have lost faith in isn’t merely government, but our ability to reach a consensus of what we want for our society.  The other day, no less a scoundrel than former New York governor and patron of the arts, Eliot Spitzer, wrote for Slate that “Americans have lost their commitment to shared sacrifice.”  No, he wasn’t referring to group sex, but to Lincoln’s Gettysburg Address.

The problems—from energy to educational achievement to financial reform to environmental degradation—that could be resolved with just a modicum of shared sacrifice are remarkable. Surely, as we enter a period of negative-sum decision-making, not positive-sum giveaways, we must understand—as President Lincoln beseeched us—that shared sacrifice, the shared shouldering of burdens, is the key to resolving our critical problems.

The problem, aside from the unseemliness of being lectured by Client Number 9, is that we continue to believe that there is some vast core of ideals that normal people share about what we want to accomplish and how best to do so.  Some people love to characterize this as “common sense,” the last bastion of the myopic.  If we think it’s the sensible thing to do, then all other people of good will and intelligence must, by definition, agree.  And yet they never do, as they wonder why we’re too stupid or malevolent as to not agree with their common sense.  After all, if we call it common, then common it must be.

Turley has tapped into a lode of frustration and disgust that has simmered below the surface for a long time, and has bubbled to the top recently, as demonstrated by elections based on the theme of change and tea parties of internally conflicted purposes.  Everybody wants better and is certain that their way will accomplish it.  And anyone who disagrees is just wrong and evil.

Laws that fail to meet our personal expectations of outcome are derided as a root source of our problems.  But laws are just a manifestation of human frailty, both in their creation and application.  Our problem isn’t with the laws, but with ourselves.  Until we get it out of our heads that law, one more or less, will produce Nirvana, and come to the hard realization that laws are no better than the people paid to deal with them, we will continue to cast blame in the wrong direction.

As for our loss of faith in the people who comprise government, create the laws, apply the laws, decide the laws, it’s unclear that we will ever find someone of sufficiently accepted sincerity that we can all agree to trust him or her.  Then again, it’s not unclear that we ever did before.  Yet we’ve survived this far.

The tension between the government and the governed is likely the most powerful force to prevent our subjugation.  Our distrust and frustration may prevent us from reaching national consensus, but it also prevents us from blindly following our government off a cliff.  While loss of faith may not be what anyone wants out of government, it may be the best we’re ever going to get, and a whole lot better than the alternative of trusting a government that’s every bit as flawed as the people who comprise it, but without the scrutiny of the paranoids or us regular folks who just don’t think it’s doing a swell job.

When a person’s motives are widely misunderstood, it’s understandable that some people will find his actions inappropriate.  Take, for example, Congressman Bob Etheridge (D-NC), captured on video:

Naturally, conservative shills amongst us have claimed that he’s engaged in a vicious assault.  This is a complete and total misunderstanding, and likely an intentional one at that.   Etheridge, like so many other representatives, is just a friendly guy, inclined to hold hands, even hug, people who demonstrate an inquisitive nature similar to his.  Just listen as he asks questions, like “who are you?”

Would you prefer a congressman who lacks any intellectual curiosity?  Maybe one who isn’t sufficiently secure in his manhood to grab the arm of another young man (in public, of course, as good taste and discretion dictates), and in touch with his feminine side so that he is hardly reluctant to show the young man the pleasure of a firm, brotherly hug.

And people have problems with this?  Maybe you just can’t imagine a politician who truly loves his fellow man, you nasty cynic.

While I’ve been long acknowledged as a leading authority on appropriate courtroom attire, it’s not as widely known that my expertise extends to the bowels of correctional facilities, where issues of haute couture are constrained to account for somewhat unusual concerns, such as the inherent dangers of an uplifting appearance. 

From Kash Hill at Above the Law, just such a conundrum demanding my attention arose when Miami attorney Brittney Horstman attempted to enter the Miami federal detention center.

When Horstman visited the center on June 4, she set the metal detector off. The guards at the detention center barred her from entering while wearing a bra with underwire. The prison dress code doesn’t bar the bras, but it appears to be informal policy at the prison — presumably because an inmate might use the metal to make a Victoria’s Secret shiv and bust out.

So Horstman went to the bathroom and took her bra off. But the guards again declined to let her enter. From the Miami Herald :

In blouse and jacket, she returned, and cleared the walk-through detector.

Again, guards refused to let her pass — now, because she was braless, which is against prison dress code guidelines.

The Wire.  It’s no laughing matter, you immature wanker. The wire has long been the source of great suffering for people in prison, often sealing the fate of those who might otherwise have laughed in the face of allegations.  No, the wire is no joke.

Few, however, appreciate that the concealment of the wire, in this instance fiendishly clever, can present a threat so deadly that its introduction into the safe confines of prison would render both stripes and orange jumpsuits pointless.  Dead men don’t care what they wear. 

For the lawyer, of course, admission into a correctional facility requires some advance thought about fashion.  It would certainly be inappropriate, if not downright cruel, to tempt men left to their own womanless devices, by flaunting an excess of decolletage.  Consider the impact that such a fashion “don’t” would leave behind?  Do you want that on your conscience?

Yet the maintenance of proper leverage, for those women endowed with surplusage, demands some mechanical aid, both for their own safety as well as consideration of others.  While the Wire appears best suited to this purpose, its risks abound.  And yet women lawyers, like their male counterparts, have a manifest need to visit with, even speak to, their incarcerated clients.

While some would leave this problem to the vicissitudes of prison officials to sort out on an ad hoc basis, a solution that strikes me as far too risque for fulfillment of constitutional duties and good taste, I’ve arrived at an alternative that should suit all needs at once.  Duct tape.  Not only does it have a long and storied history of holding things in place, but it provides the added benefit of removing any errant unwanted hairs upon removal.

Yet again, the right to effective assistance of properly dressed counsel is preserved.

One of the great legal fictions is that a criminal defense lawyer is the “agent” of the defendant.  As pretty much any defendant will say, while he depends on his lawyer to do his bidding to the limited extent he both needs the lawyer and has faith in the lawyer’s judgment and skills, the defendant is nonetheless at perpetual odds with his lawyer.  Like it or not, the lawyer is, at the end of the day, nothing more than a hired gun.  Often, he’s hired by someone else, leaving the defendant’s faith on shaky ground.

Yet the law provides, for sound policy reasons, a liability to be suffered by a defendant for a lawyer’s missteps.  Should the lawyer fail to object to something at trial, the defendant suffers.  If the lawyer’s argument is unpersuasive, the defendant suffers.  Should the lawyer fail to file a paper on time, the defendant suffers.  This is true for the most trivial infraction as well as the most serious.

Recognizing that the quality of lawyering is extraneous to the issue of guilt, the law allows for some safety valves.  There’s appeal.  There are post-trial motions.  And there is the ultimate safety valve, the Great Writ, the Writ of Habeas Corpus. It was with us when this nation began, for those of originalist bent, and remained with us since.  It was the last ditch effort to come before a court and say, something went wrong.

Reflecting the sense that criminals had it too easy and were taking advantage of the Great Writ, Congress decided to mess with it by passing the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) after the Oklahoma City bombing.  Where before a defendant could invoke the Great Writ anytime he wanted, and as many times as needed, Congress decided it had enough of criminal-coddling and imposed a strict limit on the Great Writ, that it had to be brought within one year of the conclusion of direct proceedings. 

One year wasn’t much time, but that’s the length of time Congress selected.  It was a problem for a number of sound reasons, such as evidence or information that wasn’t known, or changes in circumstances that occurred beyond the year.  It could also be a problem when the lawyer did something so unfathomably stupid as dropped the ball and missed the deadline.  In this instance, the legal fiction kicked in, with the lawyer being the defendant’s agent.  That meant that the lawyer’s failure was attributed to the defendant, whether the defendant did nothing to help himself or everything a reasonable person could expect of him.

Congress wasn’t entirely heartless.  It permitted some conditions that would let a defendant escape his lawyer’s failure, such as ” bad faith, dishonesty, divided loyalty, mental impairment or so forth.”  What it failed to include was the sort of inexplicable screwup that would most commonly occur, the simple failure to act.

This was the situation that Albert Holland placed at the doorstep of the Supreme Court in Holland v. Florida.  Jeff Gamso offers a good overview of the 7-2 decision, and Norm Pattis provides a “less dispationate” summary.  The Court held that strict time limit was subject to “equitable tolling,” provided the defendant was diligent in his efforts to file timely and that “extraordinary circumstances” existed to invoke equity, fairness.  Justice Breyer, writing for the majority, did not go so far as to say Holland’s situation was sufficiently extraordinary to invoke tolling, but offered the crack in the door to allow him to argue that it did.

The problem with such cases is that the dissenting opinion by Justice Antonin Scalia offers the better argument as to proper statutory construction.  While the majority decision is the only one that bears even a passing resemblance to fairness and sanity, it’s not quite sound from a legal perspective.  This doesn’t mean Scalia is right, for the outcome his dissent would compel is crazy, the denial of habeas review because a lawyer screwed up.  Nobody could really contend that this is a fine reason to execute a person. 

But the scenario presented to the Court is one that only half occurs in nature.  People screw up.  Holland’s lawyer, Bradley Collins, screwed up.  Despite Holland’s doing everything in his power to get Collins off the dime, Collins still screwed up.  But whether “screw ups” are extraordinary is another matter.  The result a screw up causes can be extraordinary, but a screw up itself is unbearably ordinary.  It happens all the time.

The Great Writ was important enough at the time the United States was formed to make it into the Constitution.  Not one of those after-thought amendments, mind you, but the main body.  At Article One, Section 9, which provides for limitations on Congress, it states:

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

Granted, even then it wasn’t without qualification.  It was subject to suspension when the going got tough, as happened during the Civil War when the Great Emancipator suspended it for inhospitable locales, though an earlier flavor of the Supremes held in Ex parte Milligan (1866) that as long as civilian courts functioned, the Great Writ would remain available.

The writ remained essentially unmolested, aside from its disgraceful suspension during World War II for fear of Japanese saboteurs, until 1996, when Congress fixed a problem that didn’t exist.  Since then, we’ve endured 9/11 and Gitmo detainees.  Our Attorney General at the time, Alberto Gonzalez, explained why the Great Writ, “one of our most cherished rights,” is not guaranteed by the Constitution.  He did not explain how that was possible.

The Supreme Court decision in Holland demonstrates the problems with cleaning up the wrong mess after Congress has had its chance to do what lawyers often do, screw up.  Scalia is right that majority’s holding can’t quite be squared with the limitation imposed by Congress. Breyer is right that it’s ridiculous to be such a prig as to deny Holland any possibility of review because Collins screwed up.  And none of them were willing to point the fickle finger of fate at a pandering Congress, ready to mess with the Great Writ and start the snowball that would produce Holland’s problem.

The one year limitation on the writ of habeas corpus is not merely a procedural tweak, but a de facto suspension in violation of Article One, Section 9, of the Constitution.  To agree with this is to invite all the evils that Congress hoped to end, the opportunity for criminal defendants to get ten, a hundred, bites of the apple to show that they are wrongly imprisoned.  What a burden this could be for our government, to let criminals run amok.

But until they find a way to make lawyers perfect, or judges and prosecutors for that matter, it’s the last chance to get things right.  As for Holland, scaling the heights of “extraordinary circumstances” still looms in front of him.  Whether a basic lawyer screw up will suffice has yet to be seen, and after that comes the merits.  All because Congress had to mess with the Great Writ.

Regular readers know that I refuse to use the word “tweet” in reference to what one writes on twitter.  Instead, I use “twit”, which has generated deep-seated hatred by some for my refusal to go along with the mainstream.  Hate me if you must, but the devolution into cuteness is like watching brain-rot seep through the minds of otherwise relatively normal early adopting people.  Next week, attack of the zombies.

Now CNN reports that the New York Times has banned the word “tweet” from its paper.

The Times will stop using the word because “tweet” isn’t standard English, “and standard English is what we should use in news articles,” Corbett said.

Corbett noted that not everyone uses the micro-blogging site and therefore may not be familiar with what a “tweet” is.

After all, The New York Times always uses words people are familiar with, like “louche” and “shibboleths.”

I prefer my shibboleths fried, like most people, but that’s neither here nor there.  This report presents a quandary for me.  As much as I can’t stomach new cute words, like ‘tweeples” or “tweeteriffic”, I also can’t stand the thought that the New York Times and I are on the same page.  Sure, I’m a curmudgeon, but that’s more than even I can take.

Nothing has pushed me closer to adopting the language of twitter than this bit of news. Mind you, they also call it “micro-blogging”, which is one of the most absurd descriptions I can imagine.  There’s nothing bloggy about twitter, unless one’s world is comprised of meaningful thoughts that can be captured in full in 140 characters or less.  Twitter is to blogging what this post is to War and Peace.  Nothing.

Over time, it’s become increasingly clear to me that the adoption of twitter as a means of communication creates more problems than solutions.  I’ve watched as complex ideas get watered down to meaningless glop and then spread amongst across the twittersphere to infect the minds of those who know only of the twitter version. 

A while back, someone twitted a comment about one of my posts to me, and I responded that if he had something to say, he should put it in a comment.  I would not, I informed him, engage in a discussion of my posts on twitter.  He was highly offended, twitting back that I was an ass for telling him how to twit.  (Sigh)  He was free to post whatever he wanted on twitter (as if I could stop him), but my point was that I wasn’t going to try to fit serious thoughts into a twit.  If there was anything meaningful to say, he was free to do so in a place where others would see it and in a medium that would accommodate it. 

It doesn’t trouble a lot of “tweeple” that they are using a medium ill-suited for ideas.  Twitter is great for chit chat, or making funny comments, or even letting people know about a new post on a blog.  Twitter sucks for many other things.  It can be quite dangerous for those who enjoy its camaraderie but don’t appreciate its public characteristics.  Some people twit some incredibly dumb stuff, whether harmful to themselves or others, and can’t quite grasp why it’s a problem given all the cute fun-ness of twitter that otherwise surrounds them.  I’ve urged a number of friends to take it slow when they jump aboard the twitter bandwagon, as it’s far too tempting to go hog wild from the outset until something goes awry.  Some have listened to me. Others eschewed my advice.  One even blocked me for being such a spoil sport.

Refusing to embrace the latest craze with both arms open and eyes closed hasn’t earned me any medals, but there’s little I can do to change it.  Just because somebody, somewhere, decided that cuteness and light was going to define their product doesn’t mean that I have to become one of the lemmings, a slave to every facet of the newest, shiniest technology. 

I have no regret for using the word “twit” rather than “tweet”.  That some will think me a mean, nasty curmudgeon is the price one pays for not playing the game the way we’re told it’s supposed to be played.  So I won’t be the most popular fellow amongst all the young and hip.  I never was before, and have no plans to start now.  The only thing I regret is that the New York Times refuses to use the word “tweet” as well.  It was never my plan to get in bed with the old Gray Lady.

The right to be left alone, one of the great rights observed only in the breach, has been regular fodder here.  But it’s rare when there is a legitimate choice between obedience and death.  Ryan Snodgrass faced such a choice.  From the Denver Post, via Turley :

Ryan Daniel Snodgrass, a 28-year-old guide with Arkansas Valley Adventures rafting company, was charged with “obstructing government operations,” said Clear Creek Sheriff Don Krueger.

“He was told not to go in the water, and he jumped in and swam over to the victim and jeopardized the rescue operation,” said Krueger, noting that his office was deciding whether to file similar charges against another guide who was at the scene just downstream of Kermitts Roadhouse on U.S. 6.

Duke Bradford, owner of Arkansas Valley Adventures, said Snodgrass did the right thing by contacting the 13-year-old Texas girl immediately and not waiting for the county’s search and rescue team to assemble ropes, rafts and rescuers.

The 13 year old girl had fallen out of the raft and was missing for 30 to 45 minutes.  Snodgrass, a guide, searched for her,   He was trained and certified to search and rescue someone who falls into the water.  It’s part of the job of a rafting guide.  But the girl wasn’t found immediately, and so the police were called in.  And, as police often do, they took over.

Since it had been so long, [Clear Creek Sheriff Don] Krueger said, it was no longer the rafting company’s rescue.

“They should involve themselves up to a point. They lost contact. Whether they want to say they were trying to rescue their customer, when they had lost visual contact and had no idea where their customer has been for 30 to 45 minutes, then it becomes our issue.”

There are sound policy reasons why police would order others to stay clear of their operations.  An outsider could interfere with their ability to conduct the search and rescue.  He could become a second victim, thus presenting an additional problem to deal with and risk to those who would have to save him. 

In this case, however, neither of these concerns were present.  The cops had yet to get their act together and commence a search and rescue operation, and Snodgrass was certainly qualified, perhaps more so, than any officer present.  So when he spotted the 13 year old girl, he immediately acted and went to her.  He saved her. 

For this, he was arrested.

The cynic would say that the cops were angry that he stole their thunder.  Here they had a chance to be heroes, and Snodgrass’ rescue made them look like chumps instead, standing around playing tin soldiers while a 13 year old girl could have drowned.  Sheriff Krueger’s only explanation was a turf war.  Apparently, there’s some elapsed time that turns saving a life into a pushing match over who gets to save the child.  Even if it means the child dies while the cops push back.

“To jump into water and navigate a river in a swiftwater rescue is common. You get into the river and swim. You have to do it,” Branford said. “The fact these guys don’t understand that is disturbing. Making contact immediately with your victim is essential. It’s not about who is in charge. It’s about the safety of a 13-year-old girl. You are going to do everything in your power to insure the safety of your guest, and if that means in Idaho Springs you get arrested, well I guess we’ll just get arrested.”

If ever there’s been a truly good reason to get arrested, this is it.  At least one man put the life of another person ahead of being a compliant lover of order. 

Jamison Koehler posted a vivid description of watching the videotape of a client’s custodial interrogation.  As they go, this one was relatively benign; no beating, not even brow.  It didn’t take very long.  No threats or good cop/bad cop shenanigans.  Not even lies of possible benefits to induce a statement.

The detective is very clever.  After reading my client his rights and answering a few questions, she has him tell and re-tell the story at least eight times, with each re-telling raising the possibility that he will say something different, creating inconsistencies that the prosecutor could exploit at trial.

My client tells the detective he is concerned that, up until that point, nobody asked him for his version of the incident.  The detective seizes on this.  I wasn’t there, she tells him.  So you need to tell me what happened.

She does the “I’m not quite sure what you mean, could you clarify things for me, please?” thing.  And he obliges. Eight times.  Each time he begins the story anew, I think, no, please don’t tell the story again. But I am relieved when he tells a remarkably consistent story each time. He denies everything. Credibly. He is calm and reasonable. And his version of what happened is very plausible.

The prosecution provided Jamison with a DVD of the interrogation.  It amazes me every time that this happens, as for the bulk of my time in the trenches, the only evidence of what a client said is the report written up by the cops.  It was the rarest of instances when a defendant agreed that he did, indeed, say what the officer says he said.  In most instances, I doubted that the defendant’s recollection was clear, or that he was inclined to concede that he made such painfully damaging statements.  People tend to deny things that make them look bad.  It happens.

But here’s a DVD of the interrogation, and it doesn’t appear to do a whole lot of damage.  Whether it is damaging won’t really be known until trial, when we learn how it’s put to use by the prosecution.  But at least Jamison can watch it without slapping his forehead repeatedly, screaming “why?”  It’s a miracle.

At the end of the video, the client is seen sitting alone in the interrogation room.

She leaves.  The camera continues to record. My client sits motionless at the table, his head down and his hands on the table, and I think how quiet it is in this room that holds us both, my client in front of the camera and me looking on somewhere from beyond.

My client shuffles his feet and touches his forehead with one hand, and I wonder what is going through his mind.

These are the moments that we can’t truly share with our clients.  Inexplicably, they believe that we know things we can never really know.  “You’re the lawyer,” they say to us. “You should understand.”  But we don’t.  Most of us have never undergone a custodial interrogation.  We’ve never been the person alone in that small, windowless room, surrounded by cops who have no plan of letting us walk away. We don’t wonder what will become of us, our family, our lives.  We don’t question what we could have done differently, done better, to have avoided that moment. 

There is a laundry list of experiences we will never share with defendants.  When asked what it’s like in prison, we can only repeat things told us by others.  We’ve never been prisoners.  We do share the feeling of waiting for the jury forewoman to speak after the jury has shuffled into the courtroom following their fateful note, “we have a verdict.”  But we don’t share it the same way.  Whether the forewoman utters one word or two, we still get to go home to our family that night.  No matter how depressed and angry we may feel, it can’t compare to the feelings of the person who will suffer the consequences for years.

There’s a terrible tendency by lawyers to believe that they have a grasp of what’s going through a client’s head as they endure the rigors of the process.  Not just understand, but know better.  Certainly, it’s the lawyer’s job to tell them what they are looking at, how best to deal with it, what things they shouldn’t do.  But advising isn’t the same as understanding.

There tends to be a monumental disconnect between  lawyer and client at these stages.  We confuse our knowledge of the process with the actual experience.  Perhaps the closest we come is testifying, where many lawyers have taken the stand for one reason or another, and so have a small understanding of what a defendant feels as he sits in the witness box.  It’s still not the same, as we aren’t testifying for our life, but merely our dignity. Dignity is very important, but it pales when compared with 20 years.

Jamison’s reflection as he watched the end of the DVD is interesting.  He writes:

My client must understand how an astronaut feels, untethered in space and turning like a planet.

And perhaps Jamison now understands how a client must feel.  Not enough lawyers do.  Not enough lawyers care.

After the presentation yesterday, both Bennett and I realized that we had barely scratched the surface of what we wanted to day.  There was so much, so many variations, such a big learning curve with people all along it.  And going out on three dimensional paths we had never thought about.

Afterward, guys came up and asked questions.  A lot of questions.  Some were interested in getting started.  Some had, and listened to the salesman from one company or another.  It wasn’t working, and they were trying to decide whether the excuses were true and they should keep sending the checks.  Some checks were huge.  Others less so.  The lawyers sending huge checks felt particularly bad.  They just found out who the fool in the room was.

It became difficult to watch other speakers, like Ben Kuehne  talk about what it’s like to be the object of the government’s affection, as lawyers kept asking questions.  Was she on the right track or getting burned. Was Justia as bad as Findlaw (“Nobody is as bad as Findlaw, but Justia is still bad,” Bennett responded.)  How does he stop the shameless skeezeball across town from claiming he won that big capital case that he won. (“Call him out,” I said. “But I don’t want to make enemies,” he responded.  “Bummer”, I said.)

There was a bottom line here, and one that disturbed me.  If there was one question that permeated all others, it was clear and simple:  How do I make this work to get business now?

There was a voice in their head that told them that the whole point of the internet was to make money.   It was the voice of the marketers, whispering that the internet would fill the voids in the day with new clients, flush with enough cash to pay both fees and costs. 

The marketers have done their job well.  It’s not just that they believe, but that they can barely imagine any other purpose, any other benefit to be had.  A conversation?  What a waste of time.  All that effort to write a blog post just to have a conversation when you can chat with the guys at the bar, or the lawyer in the office next door if you feel the need.  Oh no, this is about ROI.  Put in the time to write, and there’s got to be a fee at the end of the rainbow.

The problem was that many were trying, and paying some silly numbers to marketers who swore they would make them rich, and it wasn’t happening.  The lawyers quietly licked their wounds, assuming it was their fault.  They must be doing something wrong.  If everybody else was online, making oodles of money, why were they the only one sucking wind?

What eventually came out was the they were all sucking wind, but feigning success before their peers because that’s what lawyers do.  They never want to show weakness, and believe in the benefits of projecting a strong image of success.  Success breeds success.  No one wants to be the failure.

But they weren’t failures, even though they thought they were.  They were lied to and, like most victims of scams, didn’t want to admit they were foolish enough to be taken.  And taken, they were.

It’s going to take more than a one hour presentation to straighten out this mess.  It’s already unbelievably deep and pervasive, and there’s an awful lot to clear up.  But these are our friends and brethren who have been taken for a ride by marketers, and helping them is the least we can do.  Just as we would hope they would help us if we were the victims.

Jeff Gamso tells us: 6.17 quadrillion to 1. He also tells us why they don’t mean what they say.  Despite the numbers crunching, the certainty of experts and the desire for judges and juries to have the hard decisions lifted off their shoulders by the experts who assure them that there is no way, none, that the defendant isn’t the bad guy, Jeff also explains why criminal defense lawyers need to go old school and listen to our clients.

What got me started on this, though, wasn’t Balko’s piece at Slate.  It was Walter Reaves of Texas and his discussion of what happened in Ohio last week.

It’s about Stephen Myers.  That’s the factually innocent Stephen Myers.

In Myers’ case, prosecutors decided to retest the DNA, even though it had already proven conclusively that Myers was the guy in tests 10 years earlier.  The retest turned out differently.  Myers suddenly wasn’t the guy who committed the home invasion.  Up to then, there were only two people who were sure about the outcome, Myers and the guilty person.

It’s a fluke, an oddity, that the prosecutors decided to retest.  Reaves sees in this story not just a prosecutor who did the right thing, but a lesson for defense lawyers.  When your client insists on his innocence, and after you’ve had a heart-to-heart about what testing might prove still wants it done, you should have it done.

Don’t trust the prosecutor to do your homework for you – or, sadly, to give you the good news if she does.  Maybe.  But maybe not.  Regardless, defense counsel have a duty to investigate, not merely to trust that the prosecutor got it right.

After a while, we begin to feel that we’re just a cog in the wheel of justice, part of the system that populates courthouses on a daily basis.  We feel more aligned with the system than our clients.  We see the trends, the norms, the way things usually go, and it can save us a lot of time and effort to just go with it.  After all, what are the chances that anything could go wrong?

Whether the chances of a DNA mismatch are 6.17 quadrillion to 1 or less, the protestations of our clients count.  Sure, there’s a good chance that their demands will sink them, although it’s never clear that they can be sunk more than they already are.  It’s just that we’re never an arm of the prosecutor or the court, even if that means we have to turn down the opportunity to be one of the gang at court.

Sure, the odds are against us.  Very much so.  Chances are that the retest will be a waste of money and just more evidence to nail the lid even tighter on our client.  But when the client insists he’s not the guy.  When the client squeezes your arm and says, “please, you gotta do this,” there’s no choice in the matter.  In all likelihood, the test will reaffirm the defendant’s guilt.  But what if your client is Stephen Myers?  You can’t take that chance, no matter how easy it is to do nothing.

A post at Mashable by a non-lawyer, Matt Silverman, told how real lawyers were getting “real results” by blogging.  It hit the right notes, naming names and explaining how those bold enough to make use of the vast resources now available online were paying off for those lawyers savvy enougn, gutsy enough, to get into the game. 

I was ready to jump on the bandwagon, but for the fact that I’m already here.  And that I know the people referred to in the post, the ones telling lawyers about “real results.”  Silverman never actually tells what these real results are, but hints that they are great, fabulous, wonderful.  It made Connecticut employment lawyer Dan Schwartz the “go to” guy by “expanding his reputation nationally.”  It “reignited” Niki Black’s legal career.  They must be raking in the dough, with clients banging down their doors, right?  Adrian Dayton says so:

Just look at attorney Roy Ginsburg and his blog Quirky Employment Questions. After three years of blogging weekly, last month his blog hit over 10,000 unique visitors. Thanks to his blog he has landed a six-figure client, and has won the Author of the Year award from Lexology. His blog is working for him, and the firm is benefiting. It may not be the firm’s message, but it is a message that is resonating.”

Now it’s not my purpose to say whether this is great news, bad news or no news.  If Roy Ginsburg is happy, then I’m happy for him.  But if we parse this into hard terms, landing one “6-figure client” isn’t going to make a law practice, and 10,000 visitors over three years isn’t exactly what most bloggers have in mind.  In a month, or a day, sure, that would be a fine number fo reach.  After all, there are millions upon millions of people online, and they’re all supposed to find your blog, settle in, be dazzled by your billiance and send in a check. 

Today, I will be honored to sit next to Houston criminal defense lawyer Mark Bennett on a dais in Orlando to speak to social media, blogging, twitting and such.  Yesterday, Mark Britton, CEO of Avvo, gave his presentation.  He gives a great talk about social media, and it’s a very soft sell about Avvo mixed in. He knows that you have to get lawyers online before you can sell them anything.  Make it warm, fuzzy and transparent.  Mark’s talk is very informative and, for the most part, accurate.  Only when he referred to the two bloggers in the audience who were getting clients online did Mark, Brian and I wince.

But there’s another side to this game, and it’s important that people understand what they’re getting into.  There are good reasons to be online, to blog, twit, whatever. There are also things that can destroy a reputation in minutes, suck up time and money that a lawyer may not have to waste, and produce negligible, if any, results.  There aren’t too many folks interested in tempering the euphoria of the great, wild internet. 

We’re not killjoys.  We’re not antagonists to Mark Britton’s (or Matt Silverman’s) happy face.  They’ve got lawyers feeding along the bottom of the Avvo ocean, answering questions in unfamiliar practices in the hope of getting any case from any one, anywhere.  They aren’t too picky about stuff like competence or reputation, unless it impairs their ability to score the next client.  Yet there are a bunch of lawyers out there who do care about such things, and care deeply. 

Bennett and I would like to be happy and smiling as we talk fo the lawyers of the Florida Association of Criminal Defense Lawyers.  We certainly plan to.  But our message won’t be all sunshine and rainbows.  It’s a warning, because people can and will be hurt, maybe even devastated, in the rush to blog.  We don’t want to see that happen.  We’re going to try to let them know that it can happen and how to avoid it. It’s a lot to do in a short presentation, as it’s taken us years to learn about the many pitfalls.

Maybe we can help a couple of lawyers from making the mistakes we’ve made, we’ve seen others make.  Neither Mark Bennett nor I have anything to sell anyone in Orlando.  We’re just trying to help.  Whether anyone wants help, wants to hear the hidden problems with Mark Britton’s and Matt Silverman’s transparency has yet to be known.  We can only let them know.  What happens after that is up to them.