The sun is rising over Orlando, and the natives are waking.   There’s a huge crowd of Florida criminal defense lawyers here, and it’s because of one thing.  The installation of the new president of the Florida Association of Criminal Defense Lawyers.   It’s not easy becoming the president.  You need to work your way up the ladder.  You need to have the support of your peers, as well as those you looked up to while climbing that ladder.  You need to be a person in whom others repose trust.

These “others” are lawyers.  Criminal defense lawyers, many of whom have practiced long and hard, and risen to the top of their profession.  They are the cream of the crop, the best around.  Without the belief of these “mandarins” of the criminal defense bar, you don’t get to be president.

Around here, everybody seems to think of themselves as a mandarin.  They don’t exactly say that, but they have opinions and aren’t afraid to voice them.  In fact, they aren’t afraid to tell others that they are wrong.  Clueless even.  Like peacocks, they strut the blawgs announcing their thoughts and giving others, particularly the blawgers, the benefit of their wisdom.  Wise they must be, for they assert themselves with absolute certainty.

It doesn’t seem to matter that they have only been a lawyer for five years.  Or three.  Or maybe only 8 months.  Or maybe they aren’t yet lawyers at all.  They still know what they’re talking about, and experience doesn’t matter.  Plenty of old lawyers are lazy and incompetent.

But what of these very same lawyers in ten years.  Will they know nothing more than they do today?  Will the new lawyers then tell today’s heroes that they are lazy and incompetent?  If experience doesn’t count today, will it count ten years from now?  Is it their view, with the same certainty they bring to everything else, that experience will teach them nothing, just as experienced lawyers today aren’t nearly as knowledgeable as our new lawyers are?

One lawyer who has a great deal of experience is Brian Tannebaum.  But he’s been roundly criticized by young lawyers, who haven’t hesitated to tell him he’s wrong and clueless.  He’s been tough on them, calling them out whenever and wherever needed.  To Brian, it’s a matter of tough love and integrity. 

To those who feel persecuted by Brian, he’s just mean.  Their entire life has been about coddling, and they expect it to continue online.  For the most part it has, with coddling being a two-way street.  You coddle me, I coddle you.  If everyone is nice to each other, then everyone feels good about themselves.  Tannebaum won’t play the game.  He’s been harsh to them.

They’ve been harsh back, telling him he’s a jerk, often in more colorful language.  They may be young, inexperienced, unaccomplished, but they have a right to their opinion, and their opinion is that they know better than Tannebaum.  Amazing value is given the opinions of two-year lawyers.

They know better than Brian Tannebaum.

The Florida Association of Criminal Defense Lawyers will be installing Miami criminal defense lawyer Brian Tannebaum as its new President.  How many of the baby lawyers will become the president of a bar association when they grow up?  How many will enjoy the respect, trust and admiration of their peers, even their betters, as does Brian Tannebaum?  Let there be no mistake, the criminal defense lawyers of Florida repose enormous faith in Brian.  He’s earned it. How many of you will earn the faith of your peers?

Not too many.  Perhaps some of you ought to reassess the relative value of Brian’s opinions and your own until you’ve had some accomplishments of your own.

Congratulations to Brian Tannebaum.  He deserves it.

Following the natural consequence of Dan Solove’s excellent book, The Future of Reputation, comes David Thompson’s post at Volokh Conspiracy about how the ubiquitous Googling of people has fundamentally altered the landscape.

Online, Google search drops users onto a website with no context or history of the site.  There’s no indication whether a site is a parody (witness Salon being fooled by Landover Baptist), populated by anonymous trolls, a personal rant, or anything else.

Google has elevated the ramblings of a lone speaker to the same visibility as the New York Times.  This is a wonderful development for politics and freedom.  It is a frightening development for personal privacy.

In the old days, the major media (think New York Times) was very unlikely to write about you.  Your privacy was generally at the mercy of your neighbors and acquaintances—who often had to stake their own reputations when they chose to attack yours.

But today, anybody with a blog can (and all too often does) smear you, defame you, or invade your privacy.  Their motivations are many: politics (if you read VC, you might have strong opinions), envy (think job promotion), mischief (think 4chan), etc.  If you don’t have a big presence in Google before being attacked, Google will inevitably find the smear and bring it to the top of your search results: and tabloid material often rises to the top of a Google search because it gets the most clicks and attention.

According to Thompson, “Google creates the illusion that just ten search results reflect some meaningful judgment on a person’s life.”  Via Scoresearcher, he notes that the first five results get 88% of the clicks. 

A running “joke” around the blawgosphere is that you are what Google says you are.  It didn’t start as a joke, but as a serious proposition by Adrianos Facchetti at one of the most ridiculous blogs around, Blog for Profit.  Adrianos offered the proposition in support of his contention that any moron could create an internet persona of expertise by playing Google.  Of course, he neglected to mention that creating the appearance of expertise isn’t exactly the same as having it, but then, that’s the nature of the beast.

What’s often unappreciated by non-geeks and people with lives is how much effort is put into search engine ranking, “optimization”, to get one’s site onto that first page of Google, and the holy grail, the top five.  There is an industry built solely to do this, and people pay good money for these services.

Some sites rise to the top of Google organically, meaning that they just do what they do and, because of popularity or interest, obtain enough of the secret magic Google juice that they show up high on the list, no effort expended.  But most don’t want to put in the effort to build a site (or a blog) of sufficient merit to reach that height on its own.  Moreover, they want it now, and organic growth takes way too long.  Who has the time to wait for earning the position? 

The other day, I mentioned in a post that it would be great if others put my name in a blog post to push a nutjob who wrote garbage about me off the second page.  Though I expected everybody to get a laugh out of my post, the reaction was amazing, and I was humbled by the unanticipated support.  Thanks to all.  But it makes Thompson’s point quite clearly, as the craziest lunatic with a computer can cause mischief.  It’s no reflection of his importance, though in nutjob land I’m sure it would appear to feel that way, but merely the ability to type on a page so that Google picks it up.

Are blawgs the functional equivalent of, say, the New York Times?  Some are and others aren’t.  Some are better, some are worse.  But without a significant degree of sophistication on a subject, or knowledge of the background of a blawg, it would be difficult, if not impossible, to know.  Yet, if they are at the top of the first page of Google, many well-intended people will accept them as gospel.

As anyone who has become embroiled to any meaningful extent in internet culture has learned, there is no control over this.  Worse still, as new people adopt technology, they frequently make well-intended but mind-bogglingly dumb mistakes without the slightest appreciation of the consequences of their actions. 

For example, a good friend posted a twit to me the other day, asking a question that suggested horrific conduct on my part in order to ridicule something a nutjob claimed about me.  It was meant as a joke, but it would thereafter be searchable in Google.  It would be easily found, since twitter is always close to the top of the Google results, and coming from my friend, it carried far greater credibility than it would had the nutjob twitted it.  Yet he had no idea that his little joke had such broad ramifications.  As n00bs enter the room, clueless about how this newfangled technology works, the danger increases exponentially.

Thompson offers no solution to the problem, and I doubt that there will be any found.  Google has indeed leveled the playing field, and given every nutjob or moron the ability to have a voice heard.  Since we “are” what Google says we are, at least as far as the ignorant masses are concerned, we could well be in for a rough ride.

Assuming no last minute commutation or reprieve, Utah will execute Ronnie Lee Gardner on June 18th.  That, unfortunately, isn’t particularly newsworthy.  What is unusual is that Gardner, as is the law in Utah, got to select the means of death, and he chose a firing squad. 

It conjures up images of the old west, or at least the old fashioned, way to die.  Lacking any experience in how such an execution would actually be performed, Doug Berman provides some of the details.

Ronnie Lee Gardner will be strapped into a chair, a hood will be placed over his head and a small white target will be pinned over his heart. The order will come: “Ready, aim…”

The 49-year-old convicted killer will be executed by a team of five anonymous marksmen firing with a matched set of .30-caliber rifles.

While five bullets are fired, they are fired at the same moment so the sound is of one.  Utah is the only state in the Union that still allows for execution by firing squad, which critics argue is “barbaric”.

Critics decry the firing squad as a barbaric method that should have been relegated to the dustbin of the frontier era. “The firing squad is archaic, it’s violent, and it simply expands on the violence that we already experience from guns as a society,” Bishop John C. Wester, of the Roman Catholic Diocese of Salt Lake City, said during an April protest. The diocese is part of a new coalition pushing for alternatives to capital punishment in Utah.

The choice is left to the dead man walking, who in this case “politely” asked the judge for a bullet.  No reason was given for the choice.  While one might wonder how it feels to be the person pulling the trigger, Berman also provides the answer to that question:

The former firing squad member asked not to be named, as he remains a law enforcement officer in the state. . . The officer agreed to recount his experience because he believes in the death penalty — and thinks the firing squad method is plagued by misconceptions.

It is not like the scenes depicted in movies, with a condemned man tied to a stake and smoking a last cigarette before being riddled with bullets in a gruesome spectacle. Instead, he says over coffee, toast with grape jelly and an omelet, the process is instantaneous and carried out with the utmost professionalism.

“It was anti-climactic,” he says. “Another day at the office.”

Does he have any lingering effects from his role in the execution? “I’ve shot squirrels I’ve felt worse about,” he says. He volunteered to participate, he said, and would do so again, given the opportunity. “There’s just some people,” he says, “we need to kick off the planet.”

“I haven’t lost three seconds of sleep over it,” he says. “… it’s true justice.”

Obviously there is no remorse when the taking of life is on the government dime.  Another dedicated public servant.

It’s often struck me as inexplicable that people focus on the method of death rather than the sentence of death, the former being the least of the defendant’s worries.  It would be one thing if the defendant was tortured, subjected to excruciating pain, as his life ebbed from his body, slowly, slowly, until he finally prayed for death to stop the pain.  But the methods are all relatively quick and painless.  I use the word relatively since we rarely get much feedback from the defendants, except in Ohio where the news wasn’t good, but wasn’t bad enough to change much.

The shooter’s description of his job, “another day at the office,” captures the cavalier attitude of the state.  Killing people is just another function of what government does.  The only question remaining is why, in this time of budget cuts, don’t they just use one shooter with one bullet and get it over with.  After all, it doesn’t sound like the firing squad member has any qualms with pulling the trigger, and there doesn’t appear to be much need for all the drama attached to this wild west production.

Since we’re unlikely to be offered a ringside seat, though you can bet that somebody, given half a chance, would turn this into a reality television show, here’s an image that will remind us of the heritage of an execution by a gun.  Utah, the Viet Nam of the United States.  It won’t be a whole lot different.

That was how Brooklyn District Attorney Joe Hynes described Michael Vecchione, now chief of the rackets bureau, repeating the word “very” twice for emphasis.  Eastern District Judge Dora Irizarry repeated herself for emphasis as well: “I think it is shameful.”  From Law.com :

In vacating a murder conviction and barring prosecutors from retrying the case, a federal judge in New York has lashed out at the Brooklyn district attorney’s Office for failing to take responsibility for its prosecutors’ alleged misconduct.

At a contentious, 90-minute habeas corpus hearing Tuesday morning, Eastern District Judge Dora L. Irizarry noted that petitioner Jabbar Collins, a renowned jailhouse attorney, had uncovered numerous documents while serving his 34-years-to-life sentence suggesting that prosecutors had withheld evidence, coerced witnesses and lied to the court and the jury.

The rule of Brady, disclosure of evidence that tends to be favorable to the defense or tends to impeach a prosecution witness, always observed in the breach.  Even when conceded, yet not acknowledged.

Judge Irizarry called the office’s lack of contrition “sad,” “shameful” and “beyond disappointing.”

“I didn’t hear any kind of acknowledgment that things were done that should not have been done,” Irizarry said.

Noting the “well-documented” evidence that prosecutors withheld evidence and misled the jury, Irizarry asked Assistant District Attorney Kevin Richardson “You stand by that? I think that is shameful.”

It’s by no means extraordinary that it happened, with Brady being in the eye of the beholder, and in the possession of the prosecution.  Courts leave it to the prosecutor to decide whether it exists, and if so, when to disclose it.  In those rarest of instances where a prosecutor discloses Brady, it’s invariably at the last possible millisecond, and always too late to make the best use of it.  I’ve written about the failure called Brady often, calling it the worst joke ever played by Justice William O. Douglas.

Fortunately for jailhouse lawyer Collins, he had real lawyer, Joel Rudin, by his side since 2005.

However, in a motion that the two sides negotiated Monday evening, Rudin, Collins’ attorney, told the court that the district attorney’s office was agreeing to Collins’ unconditional release.

The motion cited the office’s failure to inform the defense prior to trial that a witness had temporarily recanted his allegations — the Brady violation to which prosecutors had already conceded.

Richardson told the court that the prosecution nonetheless stood by its original conclusions regarding Collins’ guilt. He added, “It is the opinion of the office, based on the weaknesses that now exist with the witnesses and the unavailability of portions of the physical evidence, that to retry the defendant is no longer a viable option and that we can no longer secure against him a conviction beyond a reasonable doubt.”

The evidentiary hearing would have required Vecchione to take the witness stand.  That, of course, had nothing to do with the decision to concede, even though he would have been subject to Rudin’s withering cross, and I’ve no doubt that Rudin, a great lawyer, would have tap danced all over Vecchione. 

And, again unsurprisingly, the prosecution wants to have its cake even as it’s caught red-handed.  They stand by the defendant’s guilt while claiming they couldn’t secure a conviction.  Have you ever heard them announce that while they recognize the defendant’s innocence, they are prosecuting anyway because they can secure a conviction? 

One might expect that there will be an investigation, maybe even a commission, to study how this “shameful” failure could possibly happen. That’s the typical way to deflect attention and responsibility from such problems, since no one will remember it happened after tomorrow.  But Joe Hynes isn’t your typical sort of District Attorney.

District Attorney Charles J. Hynes answered questions about the Collins case following a press conference Tuesday afternoon at his office announcing the donation of 500 pairs of shoes to the Family Justice Center.

Hynes said that his office would not conduct an internal investigation of Vecchione or any other prosecutors involved in the case, as the only evidence of any prosecutorial wrongdoing was the single Brady violation, which the prosecutors discovered and reported on their own. Hynes said his office ended its opposition to the proceeding because the case had become unwinnable, and that the timing had nothing to do with Vecchione’s imminent appearance on the witness stand.

While the story is a bit unclear at this point, it does not appear that the 500 pairs of shoes constitutes restitution, but rather spring cleaning at the Hynes’ residence.  And as for the price to be paid by the Brady-denying prosecutor, who “ridiculed” the defense at trial for its claims that witnesses were intimidated, now known to be precisely the case?

“Anyone who knows Mike Vecchione, who has ever seen him in action, knows that he is a very, very principled lawyer,” Hynes said.

Kinda makes you wonder what it takes to be an unprincipled lawyer.

H/T Mike at Crime & Federalism

When Scott Rothstein finished his conversation with “G-d” and decided to return from Morocco and face the consequences of his fragile self-esteem and lust for the trappings of wealth, he thought his plan was foolproof.

Rat fast and hard, and then claim you’re a “changed man.”

I understand that this Court must, and I expect it to, sentence me to a significant term of years. I only ask that you deal with me fairly and that based upon the fact that the record now exists, from my decision to return from Morocco and all that I have done since, that I am truly a changed man and that I have sincerely tried to redeem myself, that you consider giving me an opportunity to live at least part of the remainder of my life as a free man with an opportunity to do some good in this world. I will never forgive myself for what I have done nor do I expect anyone else to forgive me. But I will spend the rest of my life doing everything in my power to make right all the harm I have caused and to restore my family’s good name as best as G-d will allow.

And Rothstein stuck to the plan and gave the government its money’s worth . 

“While the defendant’s criminal activity in this case can only be described as reprehensible, it is beyond dispute that his post-offense conduct has been extraordinary,” Assistant U.S. Attorney Lawrence D. LaVecchio wrote, referring to Rothstein’s cooperation explaining his fraud and working as an informant in a case related to organized crime.

But the government isn’t the most agreeable of business partners.  While Rothstein’s lawyers sought a sentence of 30 years, the government, despite his “extraordinary” cooperation, fixed on 40 years in prison.  Did Rothstein think he might receive just a bit more love from the government than 40?  You can bank on it.

Cooperation.  The magic bullet, the get-out-of-jail free card.  If it wasn’t the perfect solution, it was better than the alternative, thought the man staring down a .357 magnum.  Everybody says that if you cooperate, if you give the government whatever it wants, you get to sleep in your own bed.  Eventually, anyway.

It was surprising that his lawyers offered 30 years.  Under the split the difference theory (provided you don’t go too low such that you’ve hit the point of absurdity), the court might be more inclined to find a happy medium between the government’s number and the defense’s.  In the best of all worlds, the two are close enough that it doesn’t matter much.

Scott Rothstein was sentenced today to 50 years in prison. 

It doesn’t appear that Rothstein’s plan was nearly as foolproof as he thought.

H/T Brian Tannebaum

I became a huge fan of Denver District Court Judge John Kane after hearing his interview with CharonQC, where he expressed disgust for the war on drugs, a remarkably frank view given his position.  Rarely does a sitting judge express so clearly his views on a controversial subject, and I was amazed that Judge Kane had the fortitude to speak out.  He won a permanent place in my heart and mind.

Stephanie West Allen of Idealawg told me about Judge Kane’s talk at his 50th law school reunion,  Unlike Charon’s interview, it had nothing to do with issues of substantive law, but with our profession.  

I want to spend a few serious minutes commenting on our common legacy. About what we have learned and can pass on. About what a lifetime as lawyers enables us to share with the next generation which graduated today.

These young people are called the Millennium Generation. They don’t have it easy. I’m not suggesting we did, but their is is a different world. Maybe that’s why the Millennials seem to differ so greatly from any generation that came before.

I wish I had a better grasp of the issues, but this newest generation seems to possess an entirely different set of values. They are more concerned with lifestyle than clients or causes. We thought hard work and perseverance would eventually lead to a partnership in a firm and it was an unusual event when a partner left one firm and joined another. That kind of dogged loyalty is a thing of the past. …

He goes on at some length, and it was worth the read to me.  Whether it is to you, I can’t say.  I don’t know whether Judge Kane was familiar with Jean Twenge’s study or the work of Theodore Dalrymple.   The issues were significant enough to justify panels for in-house corporate counsel at the last two SuperConferences to address the problems that corporations are facing in dealing with young attorneys.  Television news magazine 60 Minutes thought it worthy of a story, as did the New York Times Magazine.  The list goes on.

A 50th law school reunion is significant in two respects.  One, it’s quite a milestone, especially for someone as experienced and accomplished as Judge John Kane.  Two, it means you’re old.  One doesn’t reach their 50th reunion without getting old.  There was a time when age and experience suggested that something might have been learned along the way, but that time was before the internet, the blawgosphere and twitter.  There was a time when credibility was established by achievement, but on the internet, any twitter has the equivalent voice of a scholar, a judge, a man who has reached his 50th law school reunion.  Indeed, it’s almost a disqualification to be so terribly old, as the young simply dismiss you, no explanation necessary.

This became sadly clear to me yesterday when a post, written a few days earlier, was suddenly discovered on twitter, and retwitted with approval by a number of the young bucks and buckettes.  I read it and was unimpressed, not because it denied the problem but because it was grounded entirely in strawman arguments.  I suppose this is why it was popular with the younger lawyers, as it fed into the very characteristics that give rise to the issue.  By demonstrating no recognition of the real questions, it was an exercise in superficial sophistry.  Its proponents didn’t see it that way, but like that it made them feel better about themselves.

The gist of the post, in defense of the Slackoisie, is that they are doing their best.  This rings harsh.  How many times did we tell our children to just do their best, that was all we could ask of them.  Do your best and you’ll get a trophy.  Do your best and we will be proud of you.  Just do your best.  When we said these words to our children, they made so much sense.  When these words are spit back at us by our grown children, they are hard to hear.  Don’t they understand the difference between efficiency and effectiveness?  Don’t they realize that doing your best isn’t the same as achieving success?  At some point, trying isn’t enough.  Somebody has to take responsibility for actually doing.

Since the discussion spread across twitter, a medium ill-suited to thought or discussion from my perspective, but apparently the one of choice for others, In a post at The Trial Warrior, Antonin Pribetic offers some parameters to the discussion, sorely missing from the fuzzy thought of the twitter chatter.  Of course, it’s hard to capture any comprehensive thought in 140 characters, but for many of the proponents, it’s all the room they need. 

Antonin juxtaposes the word “Slackoisie” with a word tossed around only on twitter up to now, Dependsoisie.  I don’t care for it because it’s meaningless and silly, created by a 140 character thinker to fend off the taint of the word “Slackoisie”.  In another sense, however, it’s a great word to offer to counter the word “slackoisie”.  Mindless, pointless, definitionless, vapid, knee-jerk and empty.  How better to demonstrate what substitutes for thoughtfulness.  (Update:  Antonin has since twice changed the word so that it now appears: Dependsoisie Boorishoisie Billuminati, the latter two of his own invention. I’m partial to Billuminati.)

There is room for discussion and debate about whether there are generational issues and problems, and how to address them, but it has yet to happen.  Instead, it’s been superficial and thoughtless, whether by false arguments, ignorance of the real issues or simplistic denial and shifting blame.  But that’s just my view.  It seems that most of the fury on twitter feels otherwise.  They’ve no need to learn much about a subject before reacting, responding, deciding.  They know what they think, and that’s that.

I’ve yet to reach my 50th law school reunion.  Still, I am beginning to feel as old as Judge Kane.  My reliance on information before reaching a decision dates me terribly.  No doubt if I were to accede to the fashionable, to pander to the things that make the young, the predominant voices online, feel good about themselves, they would like me better.  It seems that so much of what happens online has become about being liked by others, regardless of anything else.  The adoration of school girls melts even the hard heart of trial warhorses. 

Yet I choose to side with an old man, Judge Kane.  Though this will make me unpopular, perhaps even anathema, to the Slackoisie, it ironically won’t matter since if you ask them, they don’t exist.  And they should know since they know more than anyone else, without any evidence to support their absolute certainty.  Still, I would rather walk beside Judge John Kane than be popular. 

Coming so close on the heels of the introduction of the iPad, I barely caught my breath before the introduction of the new iPhone. I can’t say which version it is, since I don’t have one, never used one and couldn’t distinguish one version from the next if my life depended on it.  But that’s just me.  It appears that other people think it’s a marvel, even if Steve Jobs couldn’t get it to work.

I don’t have every new shiny toy for a very simple reason.  I don’t want to pay for every new shiny toy.  I don’t want to pay the ancillary costs for the service needed for every new shiny toy.  I work too hard to piss away money on every new shiny toy.  Yet it seems like every young person around has one.  Or two.  I see them, on the train, walking about the city, with a shiny thing in one hand and another shiny thing, but with a bigger screen, in the other.  There are often wires coming out of their ears as well.

I’ve seen newborn babies.  They do not come out with wires in their ears.  I surmise that the wires connect to something shiny, even if it’s hidden in a pocket.

How do all these kids manage to have all these shiny toys?  It could be that they are all far wealthier than I, and hence the massive constant expenditures to be on the cutting edge of technology doesn’t affect them.  And yet I keep reading about layoffs, deferments, huge unpaid student loans, no jobs to be had.  In my day, there was a causal connection between jobs and the accumulation of wealth.  Did I miss something?

I fear I did.  I fear that one of two things are happening, and right under my nose.  And I missed it.  Since I know that Apple gives nothing away, and that they must pay for all the shiny toys, these people must have plenty of expendable income.  Either they earned it or somebody put it in their hand and told them to have lots of fun.  If the former, it may signify that they are earning great sums of money, or that they are spending every penny they make.  These toys aren’t cheap, and I know for a fact that a house, food, children, vacations, clothing and cable television aren’t cheap.

If they are spending every penny they make, what will they do on a rainy day?  I can’t believe that holding an iPad over their head can be very good to keep the rain off their head.  Or their iPad.  And what about the other stuff one needs to survive?  Can they afford that too?

But worse than spending every penny of disposable (and not disposable) income is the idea that someone is putting money in their wallet when they aren’t looking, perhaps as they are sitting on the couch playing GameTube and eating Cheetos.  If that’s the case, I bet I know who it is.

I’ve often rapped the Slackoisie for their entitlement and narcissism.  But watching the two-fisted technophiles strutting their stuff, I realize that it’s their parents, my tribe, who have and continue to enable this.  Will they ever believe that a day will come when they have to turn in their iPad for baby food or a new interview suit?  If they never learn, how can they continue to cruise through life with all the toys they haven’t earned?  How can we expect them to learn to grow up, to appreciate the value of a dollar and a hard day’s work, when money continues to appear in their wallet as if by magic, and converts itself into the iPhone 97.0 (platinum card version)?

There’s no reason for the young to stop when we won’t stop enabling their most unproductive tendencies.  It’s bad enough that we’ve blown their priorities, but now we exacerbate the problem with disincentives to take responsibility for themselves?  We tell them it’s a rough world out there, but then put little pillows under their feet so their every step can be cushy and soft.  How do they learn to walk by themselves?

Yes, despite our mistakes and misguided love by shiny toy proxy, they will ultimately have to grow up and take responsibility for the world.  But the persistence in enabling them isn’t helping.  And it’s most assuredly hurting.  Don’t put another twenty in their wallet.  Don’t make their bed or wipe their cute little tushy.  Let them chew their food themselves. Heck, make them chew their food for themselves.

And for crying out loud, don’t give them the money to buy anything that begins with a lowercase “i”.  If they want an i-whatever, let them wait until they can buy it for themselves.  And only after they’ve bought enough food to feed the baby.

Mike at Crime & Federalism  presents an interesting and disturbing question.

When a client files a grievance against a lawyer, the lawyer may breach some aspects of the attorney-client privilege to defend herself.  If a client says, “My lawyer never returned my e-mails,” the lawyer may share e-mails with the State Bar to prove that he was responsive to client demands.  That rule is fair, since a client shouldn’t be able to deny his lawyer the right to defend herself.  

Enter the Internet.  

What if a former client writes: “My lawyer was terrible.  He never returned my calls or e-mails.  I had a million-dollar case, and she blew it!” 

Hardly a far-fetched scenario, and quite likely one that has and will continue to arise given the ubiquitous nature of the internet.  Indeed, this is the dark side of Avvo’s putatively consumer-centric approach, providing a forum for client gripes against their lawyer under the guise of transparency.

Let’s make the hypothetical a bit tighter.  Assume the client isn’t a nutjob and her beef is based on a good faith view of her experience.  The complaints aren’t malicious, but subject to reasonable dispute.  The problem is that any substantive response by the attorney would require disclosure of confidential communications.

As Mike correctly notes, the privilege is owned by the client, not the lawyer.  It’s abrogated when the client files a grievance against the lawyer, both as a practical matter to allow the attorney to explain and defend his actions, as well as a legal matter as the client, by affirmatively offering confidential communications to others outside the privilege, has waived it.  But Mike states:

Under the current Rules of Professional Conduct, it would certainly be unethical for the lawyer to write: “John Smith called me 5 times each day.  He asked the same questions over and over again.  After evaluating his case through discovery, we realized his case was marginal.  We told him to settle the case for $25,000 – nuisance value.  He refused.  The trial court dismissed the case on summary judgment.  Now he’s angry.  By the way, you can read the case filings here, here, and here to decide for yourself whether we blew a huge case.”

I’m not entirely clear that’s accurate.  Waiver of privilege is an all or nothing proposition.  Once a client discloses confidential communications to others, it constitutes a waiver.  It’s the client’s to waive, and there’s nothing to prevent her from doing so.  It may be stupid and foolhardy, and the client may not realize the significance of disclosure and waiver, but it’s her right to let the world know what happened within the sanctity of the attorney/client relationship.  Once waived, however, the privilege is extinguished.  Like pregnancy, it’s not just a little waived.  It’s waived.  End of privilege.

Using Mike’s hypothetical then. the question is whether the client’s disclosure served to waive the privilege.  It’s of no legal consequence whether the client intended to do so.  Waiver can be unintentional, and can even occur by the mere failure to object to disclosure by asserting the privilege.  Should the client believe that she can say whatever she wants, secure in the belief that her attorney’s hands are tied, it doesn’t change things. 

It seems to me that in Mike’s hypo, the client has clearly waived privilege by her disclosures, and thus freed the attorney to respond without ethical lapse from disclosure of privileged communications.  But that’s not quite the end of the problem.

The duty to protect confidential communications isn’t our only ethical obligation to our clients.  We also have a collateral ethical responsibility to protect them, even from themselves.  So the freedom to dispute a client’s attack by disclosing otherwise privileged communications must be tempered by the fact that, angry or not, accurate or not, they are still our client.  I hasten to add that even a former client, one whose representation has concluded or one who has replaced us with new counsel, remains our client.  Forever.  No matter how much you hate them. 

Thus, while there may be no ethical or legal impediment to the use of privileged communications to fend off an attack, and while waiver means waiver, we nonetheless have a duty to disclose no more than is necessary to respond, and a duty to do no harm to the client in the process.  While the best defense may be a good offense under other circumstances, we’re constrained to use the least harmful defense possible.

Clearly, the limits placed on our ability to lash back at those who might lash out at us puts lawyers at something of a disadvantage in a street fight, and certainly an attack on the internet can bear all the indicia of a street fight.  But we’re still lawyers, and still subject to the full panoply of ethical obligations to our clients.  It sucks to be wrongly attacked.  It sucks that we can’t come out swinging and beat the nemesis into submission.  It’s only natural to want to not merely win, but crush someone who you feel wrongly accuses you.
And yet, control the visceral reaction, the desire for blood, and remember what it means to hold the privilege of representing another human being.

Some days, it sucks to be a lawyer.  But other days it pretty darn good.  You’ve got to take the good with the bad.

It must be special to be a victim, for that’s what everybody wants to call themselves.  Victim.  We all feel sorry for the victim.  So sorry, in fact, that our eyes water and minds grow fuzzy with empathy.  And that’s how reason becomes twisted to reach the rationale of the victims rights advocates.

Lawprof Paul Cassell has posted at Volokh Conspiracy about his latest article arguing for broad construction of the “right” to mandamus appeal under the CVRA. 

There is a clear “circuit split” among the various circuits as to whether crime victims are entitled to ordinary appellate review in the appellate courts or merely “clear and indisputable error” review that applies in the setting of mandamus petitions.  I argue the crime victims should receive the same sort review as other litigants. 

The CVRA’s appellate review provision appeared to provide crime victims the same sort of appellate protections as all other litigants – as several courts of appeals have held in reviewing crime victims’ petitions. Unfortunately, in a recent decision the Tenth Circuit (In re Antrobus) parted company with those other circuits and eviscerated the appellate protections promised to crime victims. In In re Antrobus, the Tenth Circuit rejected carefully reasoned decisions from the Second and Ninth Circuits and held that crime victims could only obtain appellate relief if they show that the district court had made a “clear and indisputable” error. This Article critiques the Tenth Circuit’s Antrobus decision, arguing that the Second and Ninth Circuits (among other circuits) got it right and the Tenth Circuit simply got it wrong.

If you’re like me, you spewed coffee all over your keyboard when you read Judge Cassell’s words.  Crime victims should receive the same sort of review as other litigants?  You bet.  Absolutely.  Let them have exactly the same sort of review as defendants in criminal cases.  Nothing. 

It’s not bad enough that the victims rights crowd uses whiny-worded arguments in combination with muddle-minded rhetoric to fundamentally alter the nature of criminal versus civil authority, so that their victims can enjoy the power of the government to vindicate their private, personal interests.  It’s not bad enough that they want to veto the prosecutor, trump the judge, and bootstrap the rights designed to protect a defendant into their arsenal of personal revenge.  No, that’s not enough for them.

Crime victims now want a power that has been denied the defendant, that presumptively innocent person for whom the Constitution’s bill of rights was intended, and leap frog their way to the top of the appellate docket.

The defendant gets a god-awful ruling, absurd and ridiculous, harmful and destructive, wrong in every respect?  Tough nuggies.  There’s not a thing to be done about it until after the prison door slams shut and the defendant gets to see how good he looks in an orange jumpsuit.  And then, of course, all the benefits of presumption shift to the government, so that the appeal begins from the point of view that he’s guilty as sin, and has to leap tall buildings to get even past the most obvious of errors.

But not the Victim.  While a defendant has no right to an interlocutory appeal, victims do.  While the defendant can’t do anything to prevent proceeding to trial in the face of a major Brady denial, discovery failure, massively wrong suppression decision, the victim can tie the case up at will when the prosecutor hasn’t been sufficiently loving, honoring the victim’s every whim or whine. 

The reason for this distinction is obvious.  Defendants are evil and unworthy.  Victims are wonderful and sympathetic.  So what if the defendant is as yet presumed innocent, no crime has as yet been proven and, by definition, there cannot be a victim without a crime.  We can happily blink and make every conceptual foundation of criminal law magically disappear, so that our victims will feel warm and fuzzy.

The gist of Judge Cassell’s issue is that the 10th Circuit has held that purported victims must show “clear and indisputable error” to obtain reversal of a district court decision.  Some district courts, oddly enough, don’t have enough room in the well for that third table, especially since it’s required to be bigger and fancier than the other two.  Such outrageous treatment of victims.  Appeal! Appeal immediately!

The argument would fall into the category of silly, perhaps borderline greedy, but for the fact that Judge Cassell tries to sell it as if this is how everybody else gets to play ball at the Circuit; “the same sort of appellate protections as all other litigants.”  All?  Judge Cassell knows better.  Judge Cassell knows well that this isn’t the sort of appellate protection received by one very large, one very discrete, one very despised group of litigants.

If Paul Cassell wants victims to enjoy the same protections as “all”, then let him start with the “all” for whom the Constitution’s protections were intended.  A defendant can’t appeal at all until the case is over and he’s suffering the consequences of error.  Until that changes, the argument to expand appellate protections for victims. like “all” other litigants, fails miserably.

Houston criminal defense lawyer Mark Bennett posts a truism:

“Not a team sport.”

That’s how the federal prosecutor described federal drug defense practice after a hearing in which two colleagues and I had shown a certain unity of purpose on behalf of our clients.

Divide and separate is the name of the game for federal prosecutors (that and, I can bribe witnesses but you can’t). It’s much easier to convict four people when they can be cut out from the herd one at a time. It is often true that “if nobody talks, everybody walks,” but the corollary is that one talker takes everyone else down.

The incentives are built into the federal system to smash any potential cohesiveness of the defense like shards of glass.  Whether cooperation or safety valve, the message is save yourself by screwing your co-defendants.  Divide and conquer is the prosecution’s strategy.  Too many defendants, upon the advice of counsel are only too happy to appease.

This mindset relies on the oft-repeated myth that nobody wins in federal court.  It’s a lie.  People win.  Sometimes it’s a total victory.  More often, it’s a partial victory, but a victory far beyond anything gained by flipping and ratting.  The ones who rush down to the U.S. Attorneys office to be the first on line when the doors open take the full weight of the government’s claim, from the absurd loss calculations to the plea to the top count.  Quick, snitch before the other guy snitches against you.  Whatever you do, don’t stick together.  Don’t all go down with the ship.

When the defense presents a unified front, not as matter of conspiracy or, as the snot-nosed prosecutor would call it, a team sport, it drives the government nuts.  They have come to depend on the defendants rushing to their door.  They have come to believe that all they need to do is point a finger and criminal defense lawyers will run, not walk, with their clients to rat out their mothers, fathers, brothers, sisters, wives, husbands, children, grandparents.  Trumped up allegations?  No problem, somebody will come in to confirm them, if not further them, provided they think they can get a break for it.

Federal drug defense can be an every-man-for-himself venture. If  you know that a codefendant will cooperate and convict your client, it often makes sense to beat that codefendant to the debriefing table. The U.S. Attorney’s Office wants it that way.The Government’s advantage is reduced when the defendants and their lawyers coordinate their efforts; when defendants are pointing fingers at each other, the Government just has to sit back and watch as the defendants do the work of convicting each other.

Nobody vavles by telling the government that it’s allegations are wrong, that they blew it, that they’ve got nothing.  Sure, the requirement is to come in and fully admit one’s participation.  But participation in what?  Too many times, the earlier flippers cop out to a crime that never happened, but they have no choice but to agree or they don’t get the benefit.  When the hold-outs are later offered deals for a fraction of the time the “early adopters” agreed to, subject only to their prayer for a 5k1 letter, don’t the flippers feel foolish.  Of course they do, which is why they’re the first to get on the horn with the lawyers for the hold-outs, asking what can be done to bail them out of the mess they’re in.  Nothing is the answer.  They made their bed.

But federal drug defense can be a team effort. This is most obvious in the “nobody talks, everybody walks” case or where more than one defendant makes it to trial, but it is also true where the Government has everyone on the hook. Even if everyone is looking for the benefit of a 5K1, lawyers who work well together can coordinate to make the 5K1 pie bigger for everyone without prejudicing anyone. It requires communication and trust among criminal defense lawyers who are lone wolves by nature.

Nobody suggests that cooperation or plea is never the answer.  Nobody suggests that every case demands a battle royale.  What is suggested is that the alternative, that its always a race to the U.S. Attorney’s office, is similarly not always the answer.  Slow down. Think first.  Get the Rule 16 discovery.  Talk to co-counsel.  Maybe the chain won’t have a weak link, and it will hold firm.